Wing and Low and Anor

[2009] FamCA 811

FAMILY COURT OF AUSTRALIA

WING & LOW AND ANOR [2009] FamCA 811

FAMILY LAW – PROCEDURAL – Child issues

Family Law Act 1975 (Cth)

APPLICANT: Ms Wing

FIRST RESPONDENT: Mr Low

SECOND RESPONDENT: Ms Lor

FILE NUMBER: ADC 1937 of 2009

DATE DELIVERED: 19 June 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Clelands

COUNSEL FOR THE FIRST RESPONDENT: No appearance

COUNSEL FOR THE SECOND RESPONDENT: Mrs Lindsay

SOLICITOR FOR THE RESPONDENT: Adelaide Family Law

Orders

1. That pursuant to s 11F of the Family Law Act 1975 the applicant and the second respondent must attend:

   a.   an Intake Event for the Child Responsive Program at times to be advised by the Family Consultant; and

   b.   all future appointments fixed by the Family Consultant; and

   c.   are requested to ensure that the child attend all meetings as instructed by the Family Consultant.

2. That following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide the Children and Parents Issues Assessment to the parties and the Court, and the case be listed before a Registrar to consider any recommendations of the Family Consultant and to make procedural orders for the future conduct of the case, including for the urgent appointment of an Independent Children’s Lawyer.

3. That for the purpose of preparing the abovementioned issues assessment, the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party.

4. That upon completion of the Child Responsive Program that the Registrar before whom the matter is listed is to provide to the parties the first available first day of trial before a judge.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1937 of 2009

MS WING

Applicant

And

MR LOW

First respondent

And

MS LOR

Second respondent

EX TEMPORE REASONS

1. This is a matter that has been transferred to this court from the Federal Magistrates Court.  The transfer was made on 25 May 2009.  The proceedings commenced in the Federal Magistrates Court on 20 May 2009 and the dispute revolves around a child who was born in September 2002.  There are three parties to these proceedings, the mother who is the applicant, the father who is the first respondent, and the paternal grandmother who is the second respondent.

2. The first respondent has not attended today, and has not taken part yet in these proceedings.  Apparently he is in custody in China.  I understand, though, that the documents filed in the matter or at least some of them, if not all of them – have been forwarded to China for the purpose of attempted service upon the father, either directly to him or to someone else on his behalf.  There is no document filed by him by or on his behalf, and neither counsel who appear today have any instructions about his position, about what role he seeks in this case, or indeed whether he has even received the documents. 

3. Thus the dispute, just for the moment, centres around the mother and the grandmother.  The child is primarily residing with the grandmother, and that has been the case for some time.  The allegation is made that the grandmother was not permitting the mother to spend any time with the child, and that led to these proceedings being instituted.  The primary issue that is joined though is with whom this child should live on a final basis, and on an interim basis. 

4. There are orders in place made by the Federal Magistrate on 25 May 2009, which provide for the applicant mother to spend time with the child. I am told by Mr Richards, and it is confirmed by Mrs Lindsay, that those arrangements can remain in place for the moment, although there is no agreement about them being appropriate or otherwise.  Thus the child is living with the grandmother and spending time with his mother in accordance with the Federal Magistrate’s order. 

5. Today is the first listing in this court on an urgent basis. The mother has been able to remain in Australia on a bridging visa, which expires on 30 June 2009.  However, unless that bridging visa is extended or a new bridging visa put in place, then on 30 June 2009, the mother will have to leave Australia.  I am told that arrangements have been put in place for her to leave Australia on 29 June 2009, in the event that either the current bridging visa is not extended, or a new bridging visa not put in place.

6. Thus that obviously provides the urgency in this matter.  I note that Mrs Lindsay says that her client does not accept the urgency of this situation, and points to the history of this matter in terms of the opportunities that the mother has had, firstly to bring these proceedings far earlier than she in fact did, and also to make submissions and applications to the Immigration Department earlier in the piece or on a different basis, all of which could have taken away the current urgency.

7. In that regard, Mrs Lindsay points out that her instructing solicitor has not been provided with a number of documents relating to the communications between the applicant and the Immigration Department as to her visa and her ability to stay in Australia.  As I understand it, there is no refusal to provide those documents and it just has not happened as yet, but clearly, those documents will be relevant, and will need to be discovered by the mother’s solicitor in due course.  Whether something comes of that, I do not know yet, and obviously, Mrs Lindsay does not either, but certainly, her client’s instructions are that there is no reason on the current documents why these proceedings were left until 20 May 2009. 

8. Thus the second respondent is suspicious of the motives of the mother in this matter.  Whether her motive is to try and simply stay in Australia, or whether her motive is tied to what is in the best interests of the child, or there is some other motive, is the second respondent’s concern.  In response to that submission by Mrs Lindsay, I have pointed out concerns that I have about the second respondent’s case.  In other words, looking at the conduct of the mother, the conduct of the paternal grandmother may need to be addressed as well in the fullness of time. 

9. As I say, today is the first listing of this matter in this court.  I am not being asked to consider varying the orders of the Federal Magistrate insofar as they provide where for the child lives and the child spending time with the mother, but what I am asked to do by the applicant’s counsel is to make an order giving the case the greatest expedition that I can, because the applicant intends to make an application for either an extension of the bridging visa or for a new bridging visa, to hopefully last until these proceedings can be concluded in this court. 

10. Clearly, they cannot be concluded by 30 June 2009, and to be perfectly frank, if there continues to be a dispute of the nature that there is currently, then there will be many months before this matter is concluded in this court.  The normal process in this court now is for an order to be made for the parties, namely the mother and grandmother, to participate in the child responsive program conducted by the Family Consultants.  Given the nature of that program and what it is designed to do, namely to try and resolve the issues in dispute as early as possible, but if not resolved, at least identify the issues in dispute and provide a short report as to that. 

11. I have inquired of the relevant Family Consultant, and she has been able to provide me with an early date for the commencement of that program.  In that sense, there will be expedition of that part of this court’s processes, but the child responsive program has to run its course.  It is a very successful program.  It has important components.  Whether it needs to run its full course will be in the discretion of the Family Consultant.  It might be that, initially, the Family Consultant finds that there is no need to undertake all of the programs, but that will be in the discretion of the Family Consultant.

12. Where I can provide for expedition is in relation to what happens after the completion of the child responsive program.  Usually once it is completed, if it is not settled and there is still a dispute, the matter goes before a Registrar to list the matter for a first day of trial before a Judge.  Here, I propose to make an order, in effect, providing that the registrar, if the matter is to proceed and it is not settled, to list this matter before a judge at the earliest available first day of trial.  On current indications, that could be relatively quickly, because I know that there are first days available within a short compass, and I am talking about within a month, for example, two months at the outside. 

13. Thus that is what I am prepared to do in this case and, in my view, that is the most that this court can do in terms of expediting the hearing of this case, the applicant can convey that to the Immigration Department. What the Immigration Department does with that is entirely up to them.  I cannot make an order directed to them.  I cannot require them to provide the applicant with a visa.  But as I say, the applicant can go forward and say to the Immigration Department that this court has been receptive to the application for expedition, and has expedited the matter in the only way possible, which is, expedited the listing of the first day of trial. 

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 19 June 2009.

Associate