Weston and Hanson and Ors

[2015] FamCA 627

FAMILY COURT OF AUSTRALIA

WESTON & HANSON AND ORS [2015] FamCA 627

FAMILY LAW – PRACTICE AND PROCEDURE – Children where there are proceedings on foot in the Children’s Court - application struck out with a right of reinstatement.

Family Law Act 1975 (Cth)

APPLICANT: Ms Weston

FIRST RESPONDENT: Ms Hanson

SECOND RESPONDENT:

FOURTH RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Mr Gerard

Ms Gerard

McKean Park Lawyers

FILE NUMBER: MLC 8633 of 2012

DATE DELIVERED: 13 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 13 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tindall

SOLICITOR FOR THE APPLICANT: Aboriginal Family Violence Prevention & Legal Service

THE FIRST RESPONDENT: No Appearance

THE SECOND RESPONDENT:

THE FOURTH RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No Appearance

No Appearance

Mr Baume

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

IT IS ORDERED THAT

1. All extant applications be struck out with a right of the parties to have the application(s) reinstated upon one or more of such parties certifying to the Registrar that the proceedings in the Children’s Court are completed and that there are unresolved parenting issues that require a determination by a Judge and that the matter is otherwise ready to proceed to a final hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8633 of 2012

Ms Weston

Applicant

And

Ms Hanson

First Respondent

And

Mr Gerard
Second Respondent

And

Ms Gerard
Fourth Respondent

And

Independent Children’s Lawyer

REASONS

1. This matter was last listed for hearing before me on 1 December 2014.  The proceedings relate to two children,  B, born in 2001, and C, born in 2010.  On 1 December 2014 I made interim orders which essentially reflected the arrangements for the children that were in place at the time and included an order that both children live with the mother.  I also made orders requiring service of my order upon both the first and fourth respondent, who are the maternal grandmother and C’s paternal grandmother.  I then adjourned the matter for mention before me this day.  I am informed that the Independent Children’s Lawyer complied with my order with respect to service of my order of 1 December 2014 upon the first and fourth respondents, although he does not have specific instructions as to when that occurred.

2. Neither the first respondent, the second respondent nor the fourth respondent appeared today, nor did the applicant mother.  Although the mother was represented, I was advised by Ms Tindall that she has no current instructions from the mother. 

3. There have been what appear to be very significant developments since the matter was last listed before me.  I am told by the Independent Children’s Lawyer that there are allegations of the mother having stabbed the father and his new partner.  The mother has been charged but has apparently been released on bail.  As a result of the Independent Children’s Lawyer contacting the Department of Human Services, the Department has issued proceedings in the Children’s Court and that court has made interim accommodation orders.  C is living with his paternal grandmother – the fourth respondent –  and B is living with a paternal aunt. 

4. Although there was a hearing in the Children’s Court yesterday, no one is able to give me any information as to what actually occurred at that hearing.  What is clear however is that, the matter now being before the Children’s Court, it is not a matter that this Court should be dealing with.  In all of the circumstances, although I was urged to adjourn the matter for two months, I consider it appropriate to strike the matter out.  It can be reinstated in the event that the proceedings in the Children’s Court are completed and there are still parenting issues on foot that require a determination by this Court. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 13 February 2015.

Associate: 

Date:  12 March 2015