Poulos and Lapin

[2016] FamCA 1001

FAMILY COURT OF AUSTRALIA

POULOS & LAPIN [2016] FamCA 1001

FAMILY LAW – CHILDREN – Parenting proceedings – matter listed for undefended hearing

APPLICANT: Ms Poulos

RESPONDENT: Mr Lapin

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Papaleo

FILE NUMBER: MLC 1146 of 2011

DATE DELIVERED: 10 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHIDLREN’S LAWYER: Schetzer Constantinou

SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER: Mr Papaleo

Orders

IT IS ORDERED THAT

1.This matter be adjourned before me to Friday 25 November 2016 at 9.00 am for the purpose of finally determining the matter on an undefended and unopposed basis.

2.I grant leave to the mother to amend her Application Initiating Proceedings filed on 16 July 2014 to seek the following orders as final orders:

1)That all previous parenting orders be and are hereby discharged.

2)The mother have sole parental responsibility for the children B Lapin born … 2002(“B”) and C Lapin born … 2005 “C”)  (collectively “the children”) – save that the mother not be permitted to relocate the residence of the children without first providing the father with 4 months’ notice in writing of her intention to do so, such notice to be sent to the father’s last known address for service.

3)The children live with the mother.

4)That the mother, MS POULOS, date of birth … 1978, be permitted to forthwith apply for an Australian passport(s) for the children B, female, born … 2002 and C, male, born … 2005 and then to travel outside of the Commonwealth of Australia notwithstanding the consent of the father has not been obtained.

5)That pursuant to Section 8(1)(b) of the Australian Passports Act IT IS REQUESTED that the Department of Immigration and Citizenship forthwith do all acts and things to issue an Australian passport in the name of the said children.

6)The parties keep each other informed of, and as soon as reasonably practicable, notify the other of any serious illness or injury sustained by the children (or any of them) during any time that the children are in their respective care, including any treatment required or received by the children together with the name and address of the treatment provider and/or location at which the child/children is/are hospitalised if applicable.

7)Each party promptly provide the other party with information in relation to the children’s health and wellbeing such that they both have an opportunity to be involved in any decisions which may arise with the children’s medical advisors.

8)The parties provide a copy of these orders to any school that the children may, from time to time, attend NOTING THAT B currently attends D School and C currently attends E School.

9)The father be and is hereby authorised at his own expense, if any, to obtain copies of all reports, notices, information, newsletters, photographs, invitations for parent/teacher interviews and other information relating to the children’s education.

10)Each party keep the other informed of their current respective residential address and contact telephone number, with each party to notify the other of any change to this contact information not less than 48 hours prior to such change.

11) The father’s address for service is recorded be recorded in the  records of the Court as PO Box …, Suburb F, Victoria, …. For the purpose of the notice to be given by the mother pursuant to paragraph 2 of this Order and absent the father filing and serving a Notice of Address for Service to the contrary, that address is the father’s last known address for service.

12)The children spend such time with the father as may be agreed between the mother and the father and evidenced in writing prior to such time taking place. Otherwise, for the avoidance of doubt, there is no order entitling the father to spend time with the children

(and the mother’s Application Initiating Proceedings is, hereby, amended in those terms and she be relieved from compliance with the Family Law Rules in relation to filing a further document as an amended application).

3.If the matter proceeds on an unopposed basis on 25 November 2016, the parties have permission to rely on affidavit evidence and documents filed to date in addition to the family report(s).

4.The family report dated 25 October 2016 be, and is hereby, received into evidence. Any party who requires the family consultant for cross-examination, forthwith provide the family consultant with notice in writing.

5.The independent children’s lawyer correspond with the father by email to inform the father of the outcome of the proceedings this day and to advise that, if the father fails or neglects to attend Court on the adjourned date, being 25 November 2016, final orders may be made as sought by the mother without any further input by him and the hearing otherwise scheduled for 5 December 2016 will be vacated.

6.IT IS REQUESTED that the independent children’s lawyer notify my Associate – email … – of the outcome of the family dispute resolution conference or any arrangements therefore.

7.The mother and the independent children’s lawyer are at liberty to vacate the hearing on 25 November 2016 by written notice to the father to that effect and informing my Associate that the hearing is not required because the matter will proceed on 5 December 2016.

8.I reserve the costs of the mother and the independent children’s lawyer.

9. My reasons for decision his day be transcribed and when settled a copy be provided to the parties and placed on the Court file.

AND IT IS NOTED:

A.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1146 of 2011

Ms Poulos

Applicant

And

Mr Lapin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me, having been listed by the Court, pursuant to paragraph 1 of the Order made on 8 August 2016. These are parenting proceedings concerning two children, B, born in 2002 and C, born in 2005. They have been on foot for some time. The father has periodically been disengaged with proceedings.

2. Pursuant to paragraph 1 of the Order made on 8 August 2016, the matter was to be relisted before me within seven days of publication of a family report, which I ordered. The report was published on 25 October 2016 and is 28 pages in length. It has been sent to the husband at his last known address for service, which is Post Office Box …, Suburb F, Victoria …. It has not been returned to the Court as undeliverable. The Court has not received any communication by, or on behalf of, the father.

3. The father has been called at the door of the Court today and there has been no response. The mother attends court today. The independent children’s lawyer, Mr Papaleo, attends court today. These proceedings are set down for final hearing before McClelland J on 6 December 2016.

4. It is a concern of the independent children’s lawyer that the matter not proceed to a hearing on 6 December 2016 and Victoria Legal Aid and the mother be put to the expense of preparing for that hearing if, at the last moment, the father will attend and say that he is not ready to proceed and requires an adjournment and the matter can thereby not be finalised. The independent children’s lawyer has sought, and I have agreed, to fix the matter earlier for an unopposed and undefended hearing and to give the husband some 14 days notice of that.

Amendment of the mother’s application for final orders

1. In that respect, the wife also seeks to amend her application to seek final orders, which are at variants and substantially different from the orders which she sought in her initiating application filed on 16 July 2014. The orders she seeks are those contemplated by the family report.

2. I have been prepared to grant the wife leave to amend her application in the terms she specifies. Those terms appear in the Order set out at the beginning of these reasons.

Father’s failure to participate

1. As indicated, the father has had some history of not engaging appropriately in the proceedings.

2. On 25 May 2015 the matter was before me. That was the date on which an independent children’s lawyer was appointed. The matter was fixed for a first day of hearing. The father was represented at that stage by Tate Lawyers of Fitzroy and Mr Tate appeared on his behalf. Notably, a notation appears at the foot of the orders which reads:

   And it is noted by the Court that in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

   That notation applies to all parts of the proceedings not merely those parts of the proceedings contemplated by that Order.

   The matter was next before the Court on 20 June 2016, at which time the father appeared on his own behalf and the matter was set down for hearing on 5 December 2016, estimated to take four to five days. The matter was listed for mention on 8 August 2016 for the purpose of checking on the readiness of the matter for preparation of a family report pursuant to s 62G(2) of the Family Law Act 1975 (Cth). In anticipation of the final hearing, the parties were required to file their evidence in support and any amended applications or responses as to the mother by 19 September 2016 and the father by 26 September 2016.

3. Neither party appears to have complied with that Order. The full family report was to be prepared and to be released by not later than 1 November 2016. On 8 August 2016 the matter came to court. The mother did not attend court. She sent a notification that she was unable to attend because she had within the previous three weeks given birth to a child. The father did not attend but there was no excuse or communication with the Court as to why. Counsel for the independent children’s lawyer attended and a solicitor attended on behalf of the Department of Health and Human Services (“DHHS”).

4. In relation to compliance with a subpoena to DHHS, I made rulings in that respect. Paragraph 10 of that order (dated 8 August 2016) also required:

   Within 14 days the father make, file and serve an affidavit in which he sets out with specificity the reason why he was not at court this day and in the event that it is for some medical reason he provide a detailed letter from his medical practitioner, NOTING THAT it will not be sufficient for compliance with this order for the father to produce a certificate that says he presented at the doctor’s office with a certain condition and was not fit for employment for a period of days.

5. There was a repetition of the previous notation, as follows:

   A. That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

6. The father failed or neglected to file an affidavit explaining his non-attendance at Court. He has not filed his trial affidavit.

7. In the event that the father fails or neglects to be at court on 25 November 2016 he should anticipate that the proceedings would be finally disposed of by the Court at that time without any further input by him and that the hearing on 5 December 2016 before McClelland J would be otherwise allocated.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 November 2016.

Legal Associate:

Date: 24 November 2016