STILTON & NEVILLE

[2020] FamCA 308

FAMILY COURT OF AUSTRALIA

STILTON & NEVILLE [2020] FamCA 308

FAMILY LAW – PARENTING – where the father did not notify the Court of his change of address for service – where the matter was set down for undefended final hearing – where the father became notified the week before but made no appearance – matter to proceed to be heard on an undefended basis

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 8.05(1); 8.06

APPLICANT: Mr Stilton

RESPONDENT: Ms Neville

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2762 of 2015

DATE DELIVERED: 26 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 26 February 2020

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Watson & Watson Solicitors

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The matter proceed for Final Hearing on an undefended basis on 26 February 2020.

notation

(A)The child the subject of the proceedings, X born … 2013 is about to turn seven and has been the subject of litigation now for nearly five years.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stilton & Neville 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 SYDNEY

FILE NUMBER: SYC 2762 of 2015

Mr Stilton

Applicant

And

Ms Neville

Respondent

EX TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. In proceedings SYC2762/2015, the proceedings were listed before the Court for an undefended final hearing on Wednesday, 26 February 2020. That listing was made by order of the Court on 18 December 2019. On that occasion the Applicant father did not appear. On the basis of the evidence then before the Court, orders were made for the matter to be set down for undefended hearing on 26 February 2020, and for notification to be given to the Applicant by ordinary post at an address at D Street Suburb F NSW and by email to the email address ...

2. When the matter was called on 26 February 2020, there were appearances by the Respondent mother, by Mr Harper of Counsel, and the Independent Children’s Lawyer, Ms Smith. The matter was called twice and there was no appearance by the Applicant father.

3. The Court sought submissions from the parties who appeared as to whether the matter should proceed on an undefended basis by reason of the fact that according to the evidence placed before the Court, the father had been made aware of the proceedings by the Independent Children’s Lawyer in mid-February and had sent an email both to the other parties and to the Court dated 18 February 2020 at 10:30 am in which he said:

   Please explain why I have never been contacted by the family court on the dates missed and future dates of my daughters [sic] custody hearing? ...I have never received any confirmation for any court hearings in the past 12 months - why is the system not supporting Fathers?

4. On the same date, in a further email at 5:15 pm to the solicitors for the Respondent mother being Annexure “F” to the Affidavit of Mr C filed on 25 February 2020 he stated:

   This is a witch hunt based on totally false allegations … I feel sick a mother would do this to her Daughter and a Step Dad would support this…

5. The father further stated:

   I am in Qld now and with such short notice can not [sic] make the final hearing to which I have never been informed of until today…

6. I note here that the child the subject of the proceedings, X, born in 2013 is about to turn seven and has been the subject of litigation now for nearly five years.

7. The matter had come before the now Deputy Chief Justice on 12 November 2018 on which occasion the father appeared in person. Orders were made on that occasion permitting the mother to relocate to Queensland, and an opportunity was given to the father to bring a further application with respect to spending time with the child once he had relocated his own residence to Queensland.

8. I am satisfied that since 12 November 2018, the father has relocated to Queensland. A problem of service appears to have arisen because the addresses for service which appertained in these proceedings in November 2018 became ineffective because of the father’s change of residence. There is no evidence before me of how or why the father changed his operative email addresses but it is clear from the evidence before me that the email address referred to in the Order 5 made on 18 December 2019 is probably no longer functioning.

9. “Annexure F” to the Affidavit of Mr C sworn on 25 February 2020 makes it clear that the operative address of the father is ... .  That is the email address from which he sent emails to the Court and the other parties complaining about lack of notification.

10. It is clear from the evidence that the father knew about the listing on 26 February 2020, even if he only knew at the latest on 18 February 2020. However, according to the evidence, the responsibility for this, in my view, lies with the father. It appears he has chosen to represent himself from at least November 2018.

11. Part 8.2 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with address for service. Rule 8.05(1) requires a party to give an address for service if:

    (a)the party files or responds to an application; or

    (b)the party seeks to be heard by the court. 

12. More importantly, for present purposes, rule 8.06 states: “If a party’s address for service changes during a case, the party must file a Notice of Address for Service within 7 days after the change”.

13. The terms of rule 8.06 are imperative and the obligation was on the father to notify the Court of any change of address for service. In circumstances where I am satisfied he was notified of the listing on 26 February 2020, and chose not to attend, and in circumstances where a young child has been the subject of litigation for nearly five years, it is appropriate for the matter to be dealt with on 26 February 2020 on an undefended basis and I propose to do so.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 26 February 2020.

Associate:

Date: 1 May 2020