White and Andrews (No 2)

[2013] FamCA 677

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS (NO 2) [2013] FamCA 677

FAMILY LAW – Application for adjournment – Child not to travel outside of Australia with father – conduct of solicitor brought to the attention of the Legal Services Commissioner (Victoria).

Family Law Act 1975 (Cth)

APPLICANT: Ms White

RESPONDENT: Mr Andrews

FILE NUMBER: MLC 8839 of 2008

DATE DELIVERED: 19 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 July 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. That the application by the respondent for an adjournment is refused.

2. The respondent father Mr Andrews born … 1965 by himself, his servants or agents, be and is hereby restrained from removing the child C born … 1999 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court AND IT IS NOTED THAT the Court intends that the child is not restricted from leaving the Commonwealth of Australia to travel internationally except in the presence of the respondent Mr Andrews

3. That the father’s response filed 19 January 2013 is dismissed.

4. That all outstanding applications are otherwise dismissed.

5. That the reasons this day be transcribed.

6. That the Acting Registry Manager of the Melbourne Registry of the Family Court of Australia bring these reasons to the attention of the Legal Services Commissioner (Victoria) in relation to the conduct of solicitor Michael Reid.

IT IS NOTED that publication of this judgment by this Court under the pseudonym White & Andrews 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 8839 of 2008

Ms White

Applicant

And

Mr Andrews

Respondent

REASONS FOR JUDGMENT

1. This case concerns the child who is 13 and a half years of age.  Whilst the applicant has indicated that she has been involved in litigation for a lot longer, the Court file appears to have commenced in 2008.  It is getting into the Court’s Guinness Book of Records.  It is time to bring this to an end. 

2. The applicant in these proceedings is Ms White.  I shall refer to her as the mother.  The respondent to the proceedings is Mr Andrews.  I shall refer to him as the father.

3. The application was filed in the Court on 29 November 2012.  It is the current application.  It was returnable on the same day as it was filed.  The common ground would appear to be that the father resides and has for a number of years resided, in the United States of America.  On 19 January 2013 he filed what might be euphemistically described as a response.  I do not think that I can add much more to what McMillan J said earlier in the year along the lines that the document was just inappropriate.  It is comprehensive but it contains a whole lot of material that is unhelpful.

4. The matter came on for hearing on 25 January 2013 before McMillan J.  On that day the father had made an application to be heard by telephone from the United States.  His request was granted, but I think it is important to put into these reasons why he could not come to Australia and I quote:

   I have been advised that since I was just married on … 2013 that my change of status would be put in jeopardy if I leave the country.

5. He then goes on to put in some relevant names of people and then says, presumably as his other reasons:

   …health reasons and little money as I have not been able to work in the USA.

6. Unfortunately his faxed document contained another line but it has been cut off so I do not know what it is.  Needless to say, McMillan J granted his application and heard him by telephone.  Her Honour made orders that on an interim basis, discharged some orders but then provided that on an interim basis the mother hold and be responsible for the child’s passport.  Her Honour suspended the 2007 orders, notwithstanding this case is marked a 2008 case, but again, that was an interim order.  Her Honour then provided, on an interim basis, that the mother be at liberty to travel outside of the Commonwealth of Australia with the child but that the father be restrained from doing likewise, and for that purpose made an airport watch order.

7. Her Honour then, importantly, adjourned the matter to herself on 11 April 2013.  She then ordered that the father file and serve any affidavits upon which he proposed to rely by 22 February.  Needless to say, the father did not comply. 

8. On 11 April 2013 the matter came back before McMillan J and on this occasion, the father was represented by a legal practitioner.  The Court order shows that her Honour was not prepared to make final orders but I am assured by the mother that her Honour adjourned the proceedings to today for the purpose of final orders being made.

9. Again, importantly, her Honour ordered the father to file and serve any further affidavits upon which he proposed to rely and, importantly also, that the solicitor for the father forthwith file and serve a notice of address to service.  Neither of those orders was complied with.  I have expressed in discussion that I am not really surprised about that having regard to a fact that I am aware of in his registry that solicitor Michael Reid was reported by Dessau J in December 2012 to the Legal Services Commission with almost a plea that they do something about Mr Reid’s capacity to practice.

10. McMillan J has had an experience with Mr Reid and I suspect it was in this case and I recently had to admonish Mr Reid and I have reiterated to the Legal Services Commission that I would like something done about his capacity to deal with unsuspecting members of the public as well.  Although that has got nothing to do with this case, it is relevant because, the father and Mr Reid having not complied with the order of 11 April that the father file his affidavits, I now have a letter today by the father seeking an adjournment.

11. The other important order made on 11 April was the one in relation to the solicitor filing a notice of address for service forthwith.  That was not done either; hence the relevance of Mr Reid’s conduct in other matters IU mentioned.  That was not an order directed to the father but, indeed, to a solicitor.  By 10 May, the father had not filed his affidavit material.  The mother, perhaps unusually for an unrepresented litigant, contacted Mr Reid and said that the father was late by three days in filing his material.  Again, somewhat unusually for Mr Reid he responded as follows:

    I am currently working through a backlog of urgent work in relation to other cases which I have had the conduct of prior to taking initial instructions from my client, the father.  I have not yet been able to significantly progress work in relation to this matter, through no fault of my client.  I hope to be in a position to take further instructions from my client which I need to clarify his proposals to progress this matter with a view to filing his document by no later than Friday, 24 May 2013.

12. Unsurprisingly, Friday, 24 May ticked over and the mother wrote to Mr Reid on or around 7 June.  She wrote and said:

    Your documents are now a month late.  My documents were due today.  I am unable to complete them.  Could you please respond ASAP and let me know what is happening and when these documents are going to be complete.

13. Perhaps unsurprisingly, Mr Reid did not respond.  Today, the return date of her Honour’s order, the court received an email from Mr Andrews sent 6.03 presumably Australian time this morning.  In effect, it is an application for an adjournment. 

14. Mr Andrews says that he has been endeavouring to get legal aid for over six months and he attached a letter from a firm of solicitors, Hartleys Lawyers, dated yesterday  indicating that they were not able to act for him without funding.  They thought the application for legal aid would take around six weeks to assess, therefore he should seek an adjournment for eight weeks. 

15. The letter seeking the adjournment also complained about:

    …the dreadful conduct of my legal representation.

16. I am not entirely sure who he was referring to but I think there is a fair inference that it was Mr Reid.  The sad part about that letter, however, lies in the following statement by the father:

    I am currently receiving psychological assistance here in the USA and I am in no state of health to be dealing with legal proceedings on my own at this time.

17. Sadly, then, Mr Andrews makes reference to matters that are apparently associated with the current Australian Royal Commission into sexual abuse in institutions.  I am left, therefore, with the following dilemmas.  First, Mr Andrews says that he is not in a position to proceed without legal representation.  Secondly, he attaches a letter from a lawyer who says they are not prepared to act for him without legal aid and that it would be at least a six to eight-week wait, notwithstanding Mr Andrews’s own view that he has been trying to get legal aid for six months.  Thirdly, the orders that preceded the 11 April hearing were personal to the father and he did not comply with them.  Even when he had a lawyer he did not comply with them.  Whether that is because, as he says, he is unable to deal with legal proceedings because of his health at this stage, I am unable to conclude, but it is clear that the issue in dispute here is relatively modest. 

18. From the mother’s perspective, all she wants is an order on a final basis that the father cannot remove 13-and-a-half-year-old the child from the Commonwealth of Australia.  She sets out in some detail in an affidavit that she filed on 22 March why that is so.  Having regard to what the father says about his state of health, what he said in his application for electronic attendance in January, there does not seem to me to be any reason for me to reject what the mother says about her concerns about the child being taken out of Australia by the father.

19. I am not entirely sure what orders the father was seeking.  As I earlier indicated, McMillan J thought that the response filed on 19 January was totally inappropriate and, as I have said, I agree so I am not sure what orders he would be seeking anyway. 

20. On that basis, it seems appropriate for me to conclude that this is not a case that ought to be adjourned.  It is a case that ought to be finalised on a permanent basis.  To the extent that the father, ultimately, comes to Australia and seeks parenting orders, there is nothing I have read today which would preclude him from so doing.  There are a number of legal arguments in such cases as Rice & Asplund (1979) FLC 90-725 but this case really is about whether or not the father can take the child out of Australia.

21. He, having failed to comply with the orders, and his lawyer, having failed to fulfil his part of the obligations of the orders of April, it is appropriate that I simply dismiss the application filed by the father on 19 January.  McMillan J obviously heard enough from both the father in person and through Mr Reid to be satisfied that it was appropriate to make an order on an interim basis.  The evidence since then seems to me to not only support what her Honour was doing – and I say that with great respect – but for now to make the order on a final basis. 

22. For those reasons I propose to make orders.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 July 2013.

Associate:  Elizabeth Hore

Date:  23 August 2013