Wattey and Fortescue (No. 2)

[2008] FamCA 704

FAMILY COURT OF AUSTRALIA

WATTEY & FORTESCUE (NO. 2) [2008] FamCA 704

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment

Family Law Act 1975 (Cth)

APPLICANT: MS WATTEY

RESPONDENT: MR FORTESCUE

FILE NUMBER: MLC 6076 of 2008

DATE DELIVERED: 18 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 18 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS STEWART

SOLICITOR FOR THE APPLICANT: MASON SIER TURNBULL

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the further hearing of this matter be adjourned to 9.30am on 16 December 2008

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6076  of 2008

MS WATTEY

Applicant

And

MR FORTESCUE

Respondent

REASONS FOR JUDGMENT

1. This matter came before me again on 18 August 2008. 

2. Ms Stewart appeared on behalf of the mother.  The father was called and there was no response.  The father has not participated in the proceedings at all to date.  That is a little perplexing having regard to the fact that he has taken his own proceedings in the United Kingdom.

3. Ms Stewart told me that the mother is now embroiled in proceedings in the United Kingdom as well as here.  She said that the father had decided to commence his proceedings on 2 July and a judge of the United Kingdom court had made directions initially under the Hague Convention and adjourned the proceedings until August.  In the judge’s orders, it was directed that the mother attend the court in the United Kingdom.

4. However, according to Ms Stewart, on 8 August 2008 the father said that the Hague Convention application had been made as a consequence of which the judge of the English court stayed the order about the mother returning to the United Kingdom.  It follows that as the father had handed the matter to the relevant central authority, there was no reason for the English courts to order the mother to attend in the United Kingdom as the father was intending to rely upon the Hague Convention provisions.

5. Ironically enough, having adjourned the proceedings, the judge in the English court adjourned the proceedings to the High Court of Justice and made it returnable again on this day.  Obviously with the time difference, I am not in a position to know what view if any, the High Court of Justice has taken in relation to the father’s application.

6. I was told by Ms Stewart that her instructions were that the mother’s English solicitors are proposing to apply for a stay of the United Kingdom proceedings.  She said the father was ordered to file an affidavit.  She handed me an affidavit which I have marked as an exhibit in the proceedings before me.  It is clear that the father says that he has handed the problem to the central authority and that on his understanding, the central authority was attending to the matter in Australia.  I have suggested to Ms Stewart that she makes contact with the Department of Human Services in Victoria to ascertain whether there is to be a proceeding under the Hague Convention provisions.

7. Interestingly, the affidavit to which I have just referred makes no mention of the Australian proceedings notwithstanding that it is clear that the father knew or should have known that the proceedings in Australia were underway.

8. The mother is under no misapprehension that she may face the prospect of a hearing in this Court brought by the State Central Authority upon the information provided by the father.  The question of jurisdiction as well as the defences under the Convention will then have to be determined.

9. I find it disconcerting that the father has chosen to simply ignore the proceedings in Australia notwithstanding the provisions of the Hague Convention.  Until such time as this Court is informed otherwise, the child is within the jurisdiction of the Court.

10. I have suggested that as there is no immediate challenge to the mother’s care of the child bearing in mind that this a baby of very tender years, an adjournment until the end of 2008 again before me is appropriate. 

11. Whilst the Court may have to determine the matter upon the basis of the provisions of the Hague Convention, there are also considerations of the absence of any relationship between the father and the child for some time now and as I understand the evidence of the mother, the father well knows where she is and has not made any attempt to either discuss issues with the mother or in fact, have contact with the child.

12. In the circumstances, it is appropriate that I adjourn the proceedings.

13. Subsequent to the adjournment of the proceedings, it was brought to my attention that a facsimile letter dated 19 August 2008 had arrived at the Court from the Department of Human Services indicating that the delegate is filing an application under the Regulations as foreshadowed.  The letter seeks that the orders made in relation to parenting issues under the Family Law Act 1975 (Cth) (“the Act”) be stayed.  I do not think that is appropriate at this stage having regard to the fact that I have made interim orders only as a holding pattern.

14. The Court will otherwise deal with the application of the State Central Authority in due course.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 August 2008