Oliver and Davidson

[2016] FamCA 622

FAMILY COURT OF AUSTRALIA

OLIVER & DAVIDSON [2016] FamCA 622

FAMILY LAW – Procedure – Where application dismissed – where any other extant application for orders are dismissed – where matter is removed from active pending cases – where parties may apply for relief under the Family Law Rules 2004, rule 11.03 – where both parties regularly non-comply – where the matter has not advanced for over one year – where the matter is not being resolved in a just and timely matter – where there are extant interim orders – where Independent Children’s Lawyer has attempted to have the parties psychiatric assessed – where no party has attended a psychiatric assessment

Family Law Rules 2004 (Cth) rr 1.04, 11.02(a), 11.03(1), 11.03(2) 11.06

APPLICANT: Ms Oliver

RESPONDENT: Mr Davidson

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 60 of 2015

DATE DELIVERED: 28 July 2016

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 28 July 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Susan Gray

Orders

1. At 4:00pm on Thursday 11 August 2016 by force of this order alone and without the need for further order:

   (a)The mother’s Application filed on 4 February 2015 is dismissed;

   (b)Any other extant applications for orders are dismissed;

   (c)The Independent Children's Lawyer be forthwith discharged with the thanks of the court; and

   (d)The matter be removed from the list of active pending cases.

2. The mother be permitted to have two addresses for service, being C/- B Town Post Office and C Street, B Town, with postage to either address being effective service, but noting that the court will post any documents to both addresses.

NOTATION:

A.Pursuant to Family Law Rule 11.03(1)(b), either party may apply for relief from order 1, which application is subject to the court’s consideration of the matters enumerated in Family Law Rule 11.03(2), a copy of which is attached to these orders;

B.The purpose of delaying the time for dismissing the proceedings by order 1 is to give the parties the opportunity of bringing any such application for relief before the dismissal of the proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oliver & Davidson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: CSC 60 of 2015

Ms Oliver

Applicant

And

Mr Davidson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter was listed before me today for a case management conference arising from the regular non-compliance with orders which has attended this matter to date, both by the mother and the father.  Indeed, many attempts have been made in the last 12 months to have this matter brought to a state where it may be suitable for a trial, but it is fair to say that the matter has not advanced at all since it was first transferred from the Federal Circuit Court to this court on 19 May 2015.

2. As but some instances of the non-compliance which has beset the matter, there was an order by Judge Willis on 20 March 2015 that the children spend only supervised time with the mother at the D Town contact centre and, by order, that the parties forthwith register with the D Town contact centre and complete an intake interview and attend all other requirements of the D Town contact centre to facilitate that order.

3. I am told by Ms Gray, the Independent Children's Lawyer, that in fact her inquiries of the centre have revealed that the mother has never completed an intake assessment by the centre, although that is denied by the mother.  Whatever be the case, it is plain that, in fact, the mother has never spent time with the children pursuant to those orders.

4. Next, on 25 March 2015, Judge Willis ordered that the Independent Children’s Lawyer arrange for the psychiatric assessment of both parties and required the parties to attend as and when requested for psychiatric assessment.  Since then, on no less than three occasions, Ms Gray has attempted to have the parties attend psychiatric assessments, firstly having organised appointments for 2 June, secondly having arranged appointments for 1 September and finally having arranged appointments for 3 November 2015.

5. For various reasons, comprising either the parties failing to respond to her correspondence or the correspondence advising them of the appointment being returned unopened, in fact, neither party has attended a psychiatric assessment.

6. A third example is of more recent times, and that is derived from an order made by Registrar Coutts on 15 December 2015 which required the father to file and serve by 19 February 2016 a response to final parenting orders, which response was contemplated as potentially adding in some of his relatives as parties.

7. The father has failed to comply with that order and indeed, I think am correct in saying, has failed to thereafter engage at all in the proceedings.  Even if he has engaged, it has been in a perfunctory manner.

8. The sad reality is that neither party, other than sporadic and inconsistent appearances at court events, has taken a step in these proceedings for, it would seem, something approaching 15 months.  The last activity appears to have been the filing of an affidavit by the father on 19 March 2015, although I note that a notice of address for service was filed by him on 24 March as well.

9. Moreover, it does not appear as though the mother has maintained a current postal address as a notice of address for service with the Court, although that is a matter which was remedied during the course of the submissions before me. 

10. The unique difficulty which this case brings up, is that neither party appears to have any enthusiasm for moving the litigation to a final conclusion, or at least, if they have that enthusiasm, it hasn’t manifested itself by way of active steps or engagement with the litigation.

11. Rule 1.04 of the Family Law Rules provides that the main purpose of the Family Law Rules is:

    …to ensure that each case is resolved in a just and timely matter at a cost to parties and the court that is reasonable in the circumstances of the case.

12. This case is par excellence an example of a matter that is not being resolved in a just and timely matter that is reasonable in the circumstances of the case, and it is plain, without attributing responsibility as between the parties, that the responsibility for that must nonetheless lie with them.  In those circumstances, it is difficult to know precisely how best to try and once and for all motivate the parties, should they wish to do so, to engage in the litigation.

13. The options that are open all have some detractions.  The first would be to list the matter for an undefended hearing.  However, the difficulty is that both parties are in default of orders, and indeed, the father has never, in fact, even filed a response to the mother’s initiating application.

14. The possibility of having the matter determined undefended as regards both the applicant and respondent did occur to me, with the Independent Children’s Lawyer in effect being the only party seeking orders, but the difficulty with that course is that it would see orders made in relation to the children’s living arrangements and communication regimes which are not being actively sought by either of the potential beneficiaries of such orders.  In my view, such a situation would be unfortunate, in that the orders that were made may not, in fact, be suitable or practicable in the circumstances of the parties at the time they were made.

15. The next option is to dismiss the case for want of prosecution under rule 11.06.  However, I note that the Court must give 14 days notice to the parties before making that order, and in any event, this is not a case where the parties’ conduct is solely a lack of a desire to prosecute their respective cases, but is also active non-compliance with the orders of the Court.

16. So whilst that is a live option, it is not one which appeals to me in the circumstances of this case.  Moreover, it would require a further hearing of the matter, at expense to the public and consuming the resources of the Court.

17. The other option which is live in this case is, under 11.02(a), to dismiss all or part of the case.  The difficulty with that is that there are extant interim orders under which the children live with the father, and provide for supervised time with the mother, which were not intended to be final orders and were made in the exigencies of the application which Judge Willis was then considering.

18. However, amelioration of that can be achieved by deferring the dismissal of the mother’s initiating application and any other extant and unresolved applications for a period of time, in order to give the mother, or the father, should he so wish, the opportunity to apply for relief from that dismissal, pursuant to rule 11.03(1)(b).

19. That has the attraction that, in the event that the parties wish to persuade me that the circumstances which have led to the case being in such a muddle are either not their fault, or otherwise explicable, and of a kind that would justify relief from dismissal, they may do so prior to the matter being dismissed.  Ultimately, I have determined that that is the best way forward in this case.

20. I say that principally because it requires one or both of the parties to actively seek to further prosecute their case and gives them that opportunity.  In the event that neither of them do so, then it will remove the matter from the Court’s lists, although of course, that may not necessarily preclude a party from recommencing litigation in the future, as the dismissal would not be a merits-based determination.

21. So on balance, although it is by no means a perfect solution, I am persuaded that the appropriate course in this case is to dismiss the applications with effect from 4 pm two weeks hence and by way of notation to that order, to advise both parties that they have rights to seek relief from that order under rule 11.03(1). I shall also provide them with a copy of the relevant rules, in order that they may, should they see fit to make such an application, fashion their material by reference to the matters that the Court may consider in an application for relief. So for those reasons, I make the following orders.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 July 2016.

Associate:

Date:  28 July 2016