Wilan and Wilan

[2012] FamCA 774

FAMILY COURT OF AUSTRALIA

WILAN & WILAN [2012] FamCA 774

FAMILY LAW – CHILDREN – where the applicant father has failed to comply with earlier orders regarding material to be filed – where the father sought an adjournment of two months shortly before the trial – where the father failed to serve that application upon the other parties – where the father was not present on the first day of the trial – consideration of s 69ZN, Family Law Act 1975 (Cth) – where orders bringing an end to the parenting dispute as quickly as possible are in the child’s best interests – where orders made dismissing the father’s application for an adjournment and the initiating application – where the father given liberty to apply, subject to certain requirements.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilan

RESPONDENT: Ms Wilan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 3549 of 2011

DATE DELIVERED: 21 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 21 August 2012

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Richards

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The Application in a Case filed by the Father on 14 August 2012 is dismissed.

   
   
   

2. The Initiating Application filed by the Father on 29 April 2011 is dismissed.

   
   
   

3. The Father have liberty to apply to relist the matter upon the filing of an Application to that effect, together with an affidavit deposing to the reasons for the Father failing to attend the hearing today, 21 August 2012, and to the Father’s preparedness for trial, and any such application shall be listed before his Honour Justice Murphy.

   
   
   

4. The father shall serve upon the mother any such Application and affidavit within seven (7) days of filing same.

   
   
   

5. The Mother is excused from attending any such hearing.

   
   
   

6. The Independent Children’s Lawyer is discharged.

   
   
   

7. Notwithstanding the discharge of the Independent Children’s Lawyer, the Father shall serve upon the Independent Children’s Lawyer any Application and affidavit filed by him pursuant to paragraph 3 of these Orders, within (seven) 7 days of filing same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilan & Wilan 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: BRC 3549 of 2011

Mr Wilan

Applicant

And

Ms Wilan

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter was listed for trial at a callover conducted by myself on

   
   

   4 May 2012.  Prior to that time the matter had been managed, as is the usual course, by a Registrar of the Court.

2. On 16 April 2012 the father and mother both appeared in person, and Ms Duncan appeared as the Independent Children’s Lawyer at a hearing before Registrar Coutts. The Registrar ordered that the matter be listed for the allocation of trial dates before me on 4 May.  It was also ordered at that time that the father file and serve his affidavit of evidence-in-chief by 24 April 2012.

3. The prior history of this matter involves at least some recalcitrance on the part of the father.  It might be noted in that respect that previous orders were made by the Registrar on 9 February 2012 for, among other things, the filing of an affidavit of evidence-in-chief by the father.  The fact that this had not been done necessitated the further order being made by the Registrar on 16 April.

4. As is the usual course, at the callover I required the parties to certify that all things necessary to have the matter ready to be heard on the allocated trial dates had been done and to also indicate to the Court that there was no reason known to them why the trial could not proceed on its allocated dates.  The importance of those requirements will be obvious, given that, at that callover, dates are allocated for all trials currently listed and waiting for hearing.

5. The father did not appear on that date.  I directed the Independent Children’s Lawyer to make the father aware of the trial dates and the requirements that I have just outlined.

6. The father filed an affidavit of what might be seen to be his evidence-in-chief on 10 May 2011. That document consists of 11 short paragraphs and can be seen to not refer to any of the matters to which the Court must mandatorily give consideration pursuant to section 60CC of the Act. On 18 April 2012 the father filed a further affidavit by himself. It is a handwritten document consisting of seven paragraphs. It, too, might fit the same description as I have just indicated.

7. Nothing more was heard from the father and no documents are recorded as having been received on the Court file, save for a notice of address for service filed on 13 August 2012, until the filing of an application in a case with an accompanying affidavit. That application seeks these orders:

   1.I am seeking to have my case adjourned for 2 months. This is due to a personal commitment that I am unable to attend and not for any other reason.

8. That application is accompanied by an affidavit by the father.  It is important to quote it’s contents in full:

   1.Due to a serious personal commitment I am unable to attend court on the scheduled date.

   2.I contacted the court call centre on approx 31 July and was given the miss information [sic]. I was told to put my reason in writing of which I did. I received a letter back from the courts tell me to complete the correct documentation. I turning the around there has been a two week delay in filing this. I was not trying to do this at the last minute. I tried to give as much time for the courts to reschedule as I could.

   3.This request is not that I am not ready or prepared.

   4.I am not willing to put the actual reason as I do not want the other party to know what is going on in my life.

   5.Again this request is due to a personal family commitment I have given, it is not for any other reason.

9. Each of the Independent Children’s Lawyer and the mother, who represents herself today, indicate that the application and affidavit have not been served on them.  I afforded the opportunity to each of them to read each document.

10. As can be seen, in short, the father seeks an adjournment of the trial “…for two months.” The order sought says that this is “…due to a personal commitment…” and “…not for any other reason.”  The affidavit accompanying the application does not refer to any reasons save to describe a “…serious personal commitment…”

11. The affidavit goes further “I am not willing to put the actual reason as I do not want the other party to know what is going on in my life.” Accordingly, the material before the Court reveals no reason whatsoever as to why the father seeks an adjournment of the trial. 

12. The mother makes the understandable point that both she and her witnesses have, at considerable trouble and expense, made themselves available to be at the trial today and are ready in all respects to proceed.

13. In all of the circumstances of this case, I am not prepared to grant the father any further indulgence in respect of the prosecution of his application for parenting orders. 

14. Quite apart from the exigencies relating to court processes and procedures, the Court is instructed by the Family Law Act 1975 (Cth) (“the Act”) to apply a number of mandatory principles in the conduct of child-related proceedings. Among the principles contained in section 69ZN of the Act is the mandatory requirement that the Court is to, in effect, bring proceedings to an end as quickly as possible so as to provide certainty in the lives of children.

15. That is a particularly important consideration in this case in light of the material contained in two family reports prepared by Ms D for the purposes of the trial. 

16. The first is a family report completed by her on 18 August 2011. The second is a report issued pursuant to section 65L of the Act, which such order was made by the Principal Registrar on 15 November 2011. The reports each speak of difficulties in the relationship between M and her father, and also speak of some upset and distress on M’s part.

17. I have no doubt whatsoever that M needs both certainty and a conclusion to proceedings pertaining to her as quickly as possible in that respect. I note, for example, that M is aware of these proceedings, and told Ms D when she first saw her that “Dad sent Mum to go to the judge, and I am here so I can tell you about my feelings about Daddy”.

18. Plainly, then, M knows that there is to be a decision made about matters central to her life.  She too needs certainty in her life and that is an important consideration in the orders which I am about to make. 

19. The initiating application and the application in a case filed by the father will each be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 21 August 2012.

Associate: 

Date:  7 September 2012