Samburne and Whitehill
[2009] FamCA 329
•23 April 2009
FAMILY COURT OF AUSTRALIA
| SAMBURNE & WHITEHILL | [2009] FamCA 329 |
| FAMILY LAW – CHILDREN – No appearance by or for the applicant father – LAT – practice and procedure – no evidence adduced in relation to the best interests of the children – lack of evidence to support a conclusion that orders should be made per section 60CA having regard to the section 60CC |
| Family Law Act 1975 (Cth) ss 60CA 60CC |
| APPLICANT: | Mr Samburne |
| RESPONDENT: | Ms Whitehill |
| INDEPENDENT CHILDREN’S LAWYER: | Adamson Solicitors |
| FILE NUMBER: | SYF | 6592 | of | 2002 |
| DATE DELIVERED: | 23 April 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Rose |
| HEARING DATE: | 23 April 2009 |
REPRESENTATION
| APPLICANT IN PERSON: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | CBD Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
That all outstanding applications be dismissed.
That these proceedings be removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Samburne and Whitehill is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 6592 of 2009
| MR SAMBURNE |
Applicant
And
| MS WHITEHILL |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings each of the parties had sought parenting orders in relation to their four children. The proceedings have a lengthy history in this Court which commenced in 2002. There have been numerous Court appearances, interim orders and directions made in an endeavour to have the matter ready to proceed so that final orders could be made. I will refer to those matters briefly.
On 27 March 2009, being the first day of the Less Adversarial Trial practice and procedure, the mother’s solicitor appeared. There was no appearance by or for the father nor was there an appearance for the Independent Children’s Lawyer. On that day I made the following orders and notations:
“1.That the proceedings are adjourned for hearing before the Honourable Justice Rose at 9.30am on 23 April 2009.
2.That a sealed copy of the orders and notations made this day be served by the solicitor for the mother by prepaid post on the father at his last known address namely: […].
Notations
A. That there was no attendance by or for the father.
B.That no communication was received by Justice Rose’s Associate by or on behalf of the father indicating that he was unable to appear before Justice Rose or lacked notice of the date fixed for today’s hearing.
C.That the father is put on notice that these proceedings may proceed undefended should there be a lack of appearance by him or by a lawyer on his behalf.
D.That no parenting orders may be made should neither party file and serve a Parenting Questionnaire in which event consideration will be given to all pending applications for Final Orders being dismissed.”
Historical background
Briefly, the history of this matter is as follows.
On 16 December 2002 a registrar ordered that a family conference be appointed.
On 31 January 2003 a registrar appointed an independent children’s lawyer, restrained the parties from removing the children from the Sydney metropolitan area, made interim contact orders, and also restrained the mother from removing the children from the residence of an aunt at E.
On 7 March 2003 a registrar made interim orders which provided for two of the children to live with the father and the other two children to live with the mother as well as orders then described as “contact”.
On 7 May 2003 a registrar noted that the father was serving a term of imprisonment and had a pending bail application. Directions were made.
On 5 June 2003 directions were made.
On 7 March 2003 interim orders were made by a registrar discharging the substantive orders previously made on 31 January 2003 and further providing for all of the children to live with the mother who was to have the day-to-day care and responsibility for the children. A notation was made that the father was serving a term of imprisonment.
On 10 November 2003 directions were made. A pre-trial conference did not proceed. The matter was listed in the defaulters list. It was further noted that the father continued to serve a term of imprisonment.
On 14 November 2003 directions were made.
On 21 November 2003 it was noted that the matter may have settled.
On 2 December 2003 the parties were granted leave to obtain a pre-trial conference date. Directions were made.
On 18 March 2004 directions were made.
On 27 April 2004 the proceedings were adjourned to 6 May 2004. A recovery order was made against the father.
On 6 May 2004 interim orders were made for the children to live with the mother and the father to have contact with three of them.
On 25 May 2004 further interim orders were made providing for the children to live with the mother and the father to have contact with them, other than for the child S.
On 9 June 2004 interim orders were made by consent providing for three of the children to live with the mother and the remaining child to live with the father, subject to the latter order being suspended until such time as the father found suitable accommodation as determined by the Independent Children Lawyer. Contact orders were also made.
On 24 June 2004 the proceedings were expedited. A psychiatrist was appointed as Court expert to prepare a report in relation to matters that were designated.
On 27 September 2004 an order was made under section 77 of the Crimes Administration of Sentence Act (1999) to enable the father to be brought to Court for the hearing fixed to commence on 15 November 2004.
On 11 November 2004 the latter hearing was vacated. The order previously made for the father’s attendance was discharged.
On 14 January 2005 an order was made that all of the children live with the mother.
On 11 March 2005 directions were made.
On 18 May 2005 further directions were made.
On 17 June 2005 further directions were made with a notation that the father was due to attend an interview with the Court appointed expert.
On 5 July 2005 further directions were made.
On 19 January 2006 further directions were made.
On 19 April 2006 further directions were and notation was also made that the father was currently serving a term of imprisonment.
On 29 May 2006 the proceedings were adjourned to 17 July 2006 before a judicial registrar.
On 17 July 2006 directions were made.
On 18 September 2006 directions were made. It was noted that the father may not be released from custody for a further 18 months.
On 20 November 2006 directions were made and notation was made also that further information was to be provided in relation to a proposed parole board hearing on the application of the father.
Further directions were made on the following dates: 18 December 2006; 29 January 2007; 26 February 2007 and 28 March 2007.
23 April 2007 interim orders were made by consent providing for the father to communicate with three of the children by telephone and that he might correspond with the children via the Independent Children's Lawyer.
Further directions were made on the following dates: 15 October 2007; 12 November 2007; 23 November; 12 December 2007; 7 February 2008; 26 March and 28 April 2008.
On 28 April 2008 interim orders were made by consent providing for the substantive proceedings to be transferred before hearing pursuant to the Less Adversarial Trial practice and procedure and requiring the parties to do all things necessary to enable the court expert to complete his report.
On 12 May 2008 directions were made for the filing and service of parenting questionnaires and payment of the trial fee.
On 25 August 2008 on the first day fixed for the hearing, pursuant to the Less Adversarial Trial procedure there was no appearance by or for any of the parties. It was noted that the trial fee was unpaid.
Ultimately the matter came before me on 27 March 2009 to which I have referred earlier in this judgment. Exhibit 1 satisfies me that the solicitor for the mother has complied with Order 2 made on 27 March 2009. I note that neither of the parties has filed and served a parenting questionnaire.
Conclusion
Consequently, I am left in the position where there is no evidence before me of any matters touching upon the best interests of all or any of the children pursuant to section 60CC. As a result, I am not in a position to make any findings of fact which would support parenting orders being made in accordance with section 60CA, that is having regard to the mandatory requirement that for the purpose of a parenting order, the best interests of the child is the paramount consideration.
Consequently, as foreshadowed on 27 March 2009 and noted in Notation D, I will not make any parenting orders. The outstanding applications will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.
Associate:
Date: 1 May 2009
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Stay of Proceedings
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