Shailer & Shailer

[2009] FamCA 235

FAMILY COURT OF AUSTRALIA

SHAILER & SHAILER [2009] FamCA 235

FAMILY LAW – PRACTICE AND PROCEDURE – Children – Husband not present – Adjourned hearing

Family Law Act 1975 (Cth)

APPLICANT: MS SHAILER

RESPONDENT: MR SHAILER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4210 of 2007

DATE DELIVERED: 18 MARCH 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MORT

SOLICITOR FOR THE APPLICANT: KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR MEEHAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SEPTIMUS JONES & LEE

ORDERS

IT IS ORDERED:

1. THAT all extant applications be adjourned as a first day Less Adversarial Hearing to 21 July 2009 at 10.00 a.m. before Young J.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

3. THAT the court forward, to the Notice of Address for Service provided on behalf of the husband, a sealed copy of the orders made this day and extempore reasons for judgment.

4. THAT pursuant to s62G of the Family Law Act 1975 child dispute services be requested to prepare a Family Report for that further hearing and for the purposes thereof:

   §observe the relationship of both the mother and father with the child;

   §be in contact with GordonCare or any other agency or individual who may have observed the father’s time spent with his daughter in this calendar year;

   §any other matters of importance or concern that may arise

   and, if practicable, the report be prepared by Mr E.

5. THAT the solicitors for the wife forward by prepaid post a sealed copy of this order and the wife’s questionnaire filed with the court and the report from GordonCare (exhibit 3 in the proceedings) to the husband at his recorded address for service.

6. THAT the husband forthwith make, file and serve a Notice of Address for Service and keep the court advised of any change in his current residential address or e-mail address.

7. THAT the costs of the wife of and incidental to the hearing at court this day, including attendance of counsel and solicitor be fixed in the sum of $2,900 and the payment thereof be reserved for determination on the adjourned hearing date.

8. THAT the costs of counsel appearing for the Independent Children’s Lawyer be fixed in the sum of $1,760 and the question of payment of those costs be adjourned to adjourned hearing date for determination.

9. THAT the husband within sixty (60) days make, file and serve an affidavit disclosing, in detail:

   (a)         the reason for his non-appearance at court this day;

   (b)         his current income and financial circumstances;

   (c)         the equity that he now holds in his R property;

   (d)any other relevant financial matter (income, asset or liability) that he may wish to bring to the attention of the court.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the wife and the Independent Children’s Lawyer.

IT IS NOTED

A.THAT for the purposes of the s62G report it is intended, subject to the availability of the husband that report be undertaken and completed in the week commencing 14 July 2009.

B.THAT the wife has submitted to the court that if the husband, for any reason whatsoever, does not attend the further hearing date or if so advised by her legal practitioners she may seek a conclusion of all proceedings and the dismissal of all parenting and children applications before the court at that adjourned hearing date.

IT IS NOTED that publication of this judgment under the pseudonym Shailer & Shailer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4210 of 2007

MS SHAILER

Applicant

And

MR SHAILER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Shailer is listed before me as a first day less adversarial hearing trial.  Mr Mort of counsel appears for the wife, who is present in court.  Mr Meehan of counsel appears for the independent children's lawyer.  There is no appearance by or on behalf of the husband.  He was called out of court and did not appear. 

2. Dealing first with that issue, his former solicitors were Taussig Cherrie and Associates.  A letter was produced to the court and now marked as exhibit “1” and dated 12 March 2009 written by his former solicitors to both the solicitors for the wife and the independent children's lawyer.  That letter started that they no longer acted for the husband and that they do not know if he would be attending the Thursday hearing, that is, today.  His address was provided as being:

   Post Office Box …
   R, United States of America
   email: …@...

   The letter continued to advise that Taussig Cherrie would notify the court the husband was acting for himself. 

3. Exhibit “2” is a letter dated 16 March 2009 sent presumably by both post and email to the husband by the wife's solicitors advising that the matter was listed for a court hearing today and effectively putting him on notice that a costs application would be made in his absence.  With that background the husband was not at court today.

4. The history of this matter is documented in various applications and affidavits before the court and also in court orders.  There are very few recent documents before the court save the wife's parenting questionnaire filed 2 March 2009, which I have read.

5. The child of the marriage, a daughter, was born in July 2006 and is two and a half, approaching three years of age.  She lives with her mother in a property in suburban W, a suburb of Melbourne. 

6. The parties have concluded all property and financial proceedings before the court and orders were made on 29 November 2007 in that regard.

7. As to children's issues, the first order in this court was seemingly pronounced on 15 May 2007 by Senior Registrar Fitzgibbon.  On that day, and by consent, the parties were restrained from removing their daughter from the Commonwealth of Australia and her name was placed on an airport watch list. 

8. There were further significant orders made that day, by the court and not by consent.  Those orders, in summary, provided for the child to live with the mother and to spend time and communicate with the father.  There were various court orders dealing with the location and supervision of that time spent and for the husband to restrain from alcoholic consumption prior to or during that time, and otherwise as ordered, including a mutual restraint in respect of any assault or alleged act of molestation or harassment of the wife and child.  The structure of the time spent with orders can be clearly ascertained from paragraphs 1-4 (inclusive) of that order. 

9. The next court event was 15 October 2007.  On that occasion the State Central Authority was a party to the proceedings and otherwise both the husband and wife were represented by experienced counsel.  Her Honour determined to stay the application that had been issued pursuant to the Hague Convention until the determination of the parenting proceedings that the wife had earlier issued on 17 April 2007.  They remain the primary proceedings now before the court.  There is an extempore judgment of her Honour on file.

10. Thereafter the matter was listed on various occasions through 2007 before the court.  The orders of significance are those pronounced 17 December 2007 by Senior Registrar Fitzgibbon and which structured the current ongoing time to be spent by the husband with his daughter. 

11. In summary, the husband has six occasions of such contact each year which are to coincide with various special occasions.  The venue and supervision and other restraining orders are continued and are dealt with in that order. 

12. The next court event is the application for dissolution of marriage which was pronounced in April of 2008.

13. This matter has eventually found its way through the court process and is now listed before me as a first day hearing.  The Independent Children's Lawyer was appointed on 23 May 2008 and has been involved in the proceedings since that date and continues that appointment.  In preparation for the matter coming on for hearing the parties and their daughter attended before a family consultant, Mr E in or about July of 2008 and there is a children and parents' assessment issue prepared by that consultant and now before the court.  That document was sent to all parties.  I have read that document and considered the future directions identified therein.  Mr E has been in court throughout the mention of this matter this morning. 

14. The father has not as yet filed any parental questionnaire nor updated any of his documents or evidence before the court.  What I have been made aware of is that the father did attend Melbourne in February and had time spent with his daughter on three occasions.  A detailed report of those occasions has been prepared by GordonCare.  That document has been produced to the court and has been marked as exhibit “3”.  I will have a copy of that document provided to Mr E.

15. I have read that document whilst on the Bench and it is clear that there was some very real concern and issues about the actual interaction between father and daughter.  The report concludes with the observation that the father was somewhat disheartened at his daughter's reluctance to engage in any way with him.  I carefully make no findings or draw any concluded view from that document and/or the observations therein now before the court. 

16. What I intend to do is to have in due course, and if the father continues to attend, an updated report by way of observations and comments prepared by Mr E pursuant to section 62G of the Family Law Act 1975.

17. The position today therefore is the mother and her counsel and solicitor are at court.  The mother is privately funded and the costs thereof are clearly a very real financial concern to her.

18. Mr Mort has sought the proceedings be concluded on the basis of the husband's non-appearance, and that would then reactivate the Hague Convention application and that would then need to be dealt with at an appropriate date and time. 

19. Mr Meehan has not wholly supported the wife's application and my comments and observations are clearly highlighting the fact that the husband was here in February and has at least shown that level of continuing interest in his daughter and compliance with court orders. 

20. My current view is that it would be inappropriate and not in accord with the best interests of the child for parenting and all related specific issues to be struck out at this stage.

21. What I intend to do is to re-list this matter before me on 21 July 2009 at 10.00 a.m.  The logic in choosing that date is that the child's birthday is the previous week, and in both the calendar years 2007 and 2008 the father has attended and spent time with his daughter in and around her birthday. 

22. It is fundamentally important that the husband have a very clear understanding that these proceedings do need to reach finality.  There must be a level of certainty available to both adults and also to their daughter.  For the matter to proceed the husband will have to instruct solicitors or otherwise to appear in person.  Whatever he chooses, there must be some updated meaningful and proper evidence by him before the court.  He must complete in a full and proper manner the parenting questionnaire.  He must have a realistic and proper plan for his future time to be spent with his daughter or such other orders as he seeks.  There must be assured continuity and regularity to the benefit of the child.

23. I will facilitate a family report pursuant to section 62G of the Family Law Act being prepared in that week or so prior to the adjourned hearing date and Mr E will have a discretion as to whether the report be written or oral. It may be that the husband will attend in May of this year or some other month prior to July as well as in July. If so, it would be of assistance to have evidence of relationship between he and his daughter and observations of appropriate persons. I have also requested of Mr E that he include in his report an assessment and opinion of the mother-daughter relationship.

24. I will have the court in the usual way send these extempore reasons for judgment and orders made this day to the father, but it will be a specific requirement upon the mother's solicitor that she use her best endeavours to advise and notify the husband of the adjourned hearing date and more particularly, follow that up immediately prior to July of this year, at least in a reasonable manner by post and email. 

25. I do not accept the submission of striking out the parenting and children's proceedings this day.  I caution that that may just lead to further proceedings and may not be in the immediate interests of the child.  But the husband must well and truly understand that these proceedings simply cannot be and will not be allowed to hibernate within the court.  There must be a conclusion of all matters in the interests of the child and finality must be reached.

26. Mr Mort has also highlighted the failure of the husband to engage in appropriate counselling or presentation of his case for a hearing before the court.  All of those matters I merely record in these reasons and leave the father to best prepare and present his case. 

27. The bottom line is the matter must be ready to commence a hearing on that July date.  It most likely will not be concluded as I will only have limited time that day as I have re-listed it to a first day.  That is one of perhaps two or three other cases.  But the husband must, as must the wife, prepare and be ready to present their submissions and for the case to be heard and/or concluded at the earliest possible day. 

28. I will have these reasons, delivered extempore, transcribed and placed upon the court file.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: