Xuarez & Vitela

[2017] FamCA 883

FAMILY COURT OF AUSTRALIA

XUAREZ & VITELA AND ANOR [2017] FamCA 883

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal of applications – Suspension of orders – Court dates – Filing of materials – Court fees

Family Law Act 1975 (Cth), Division 12A

APPLICANT: Mr Xuarez

FIRST RESPONDENT: Ms Vitela

SECOND RESPONDENT: Mr Cotter

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

FILE NUMBER: BRC 7312 of 2007

DATE DELIVERED: 29 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 29 September 2017

REPRESENTATION

THE APPLICANT: Self-Represented

COUNSEL FOR THE FIRST RESPONDENT: Ms Bertone

SOLICITOR FOR THE FIRST

RESPONDENT:

Sarah Cleeland Family Lawyers

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Green

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

Order

1. The following paragraphs of the Amended Initiating Application filed by the father on 17 June 2015 be dismissed:

   (a)Paragraph 2;

   (b)Paragraph 3;

   (c)Paragraph 4;

   (d)Paragraph 5;

   (e)Paragraph 6;

   (f)Paragraph 7;

   (g)Paragraph 8; and

   (h)Paragraph 10.

2. The Application in a Case filed by the father on 16 October 2015 be dismissed.

3. The Application in a Case filed by the father on 19 May 2017 be dismissed.

4. Both Applications in a Case filed by the father on 5 September 2017 be dismissed.

5. The Application in a Case filed by the father on 25 September 2017 be dismissed.

6. The Application in a Case filed by the father on 28 September 2017 be dismissed.

7. The Application in a Case filed by the mother on 12 July 2012 be dismissed.

8. Leave be granted for the mother to withdraw paragraphs 1, 2 and 3 of the Further Amended Response filed on 1 September 2015.

9. Order 3 of the orders made on 24 August 2007, which provides for the following:

   “3. That the children will spend time with the father as agreed between the parties and at least as follows:

   a)     each Saturday afternoon between 2pm and 5pm, the contact to be at Suburb G, with changeover to take place at Suburb H;

   b)     by telephone each Thursday evening between the hours of 7:00pm and 7:30pm with the father to initiate the phone call by the mother’s mobile phone ….”

   be suspended.

Trial date

1. The trial of this matter is listed before the Honourable Justice Carew for hearing in relation to the competing applications pursuant to either s.118 or s.102QB of the Family Law Act, 1975 at 10:00am on 30 November 2017 for a period of half a day.

Court fees

1. The applicant father shall pay the setting down and hearing fee by 4.00pm on 9 November 2017 unless a fee exemption application has been approved beforehand.

Filing material

1. The applicant father shall file and serve one affidavit of evidence in chief of himself and of any witness upon which he intends to rely by no later than 4.00pm 9 November 2017.

2. The respondent mother shall file and serve one affidavit of evidence in chief of herself and of any witness upon which she intends to rely by no later than 4.00pm 16 November 2017.

3. Any affidavit by the applicant or respondent strictly in reply shall be filed and served no later than 4.00pm on 23 November 2017.

4. Each party shall file and serve a case summary document no later than 4.00 pm 27 November 2017 including a relevant chronology; list of affidavits to be relied upon at trial; and a summary of argument with any authorities relied upon.

5. That the Independent Children’s Lawyer be discharged.

NOTATION:           

1. It is noted that the following applications are outstanding and have been listed for final hearing:

   (a)Paragraph 9 of the Amended Initiating Application filed by the father on 17 June 2015; and

   (b)Paragraphs 4 and 5 of the Further Amended Response filed by the mother on 1 September 2015.

2. It is further noted that the applicant father left the court prior to the conclusion of the hearing and indicated that he wished to take no further part in the proceedings and despite being informed that the hearing would continue and orders may be made in his absence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7312 of 2007

Mr Xuarez

Applicant

And

Ms Vitela

First Respondent

And

Mr Cotter

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings today have been listed in relation to a number of matters that were before the court and also to consider listing the substantive proceedings for trial.

2. As the substantive proceedings are child-related proceedings, Division 12A of the Family Law Act 1975 (Cth) (as amended ‘the Act’) applies and that provides the court with not only the power, but certain duties in the conduct of such proceedings. There are certain principles set out in Division 12A of the Act to which I have had regard in considering the matter today and in particular the need of the court to consider any children involved and the impact on the children of the continuing conduct of proceedings.

3. The court’s duty is to:

   a)Actively direct, control and manage the conduct of the proceedings;

   b)Deal with as many aspects of the matter as it can on a single occasion;

   c)Determine matters arising out of the proceedings;

   d)Consider what issues require full investigation and hearing and which may be disposed of summarily. 

4. It is in that context and being minded of my duties under Division 12A of the Act that I have determined to proceed with the matter even when the father made the decision to absent himself from the proceedings. The father was informed before his departure that orders may be made in his absence.

5. The father indicated earlier today that he had been in jail and my understanding from the material is that that relates to charges of stalking the mother and the mother’s former lawyer.  Therefore, it is also in that context that I have considered the ongoing impact of child-related proceedings on the children.  Even though the father has not spent any time with the children since 2008, I imagine that the children would be acutely aware of their mother’s continued involvement in these proceedings. 

6. The Court simply does not have the power to make the orders sought by the father in most of the applications and/or they had no prospects of success even looking at the father’s case at its highest, that is, on the material upon which the father relied.  In addition, the father elected not to prosecute his applications by departing before the conclusion of the hearing.

7. Minded with all of those considerations, and with the consent of the parties who remained in court, I have approached the matter in this way to bring the proceedings to a conclusion as far as possible. This is in circumstances where the father informed me this morning that he was not in fact seeking any parenting order. 

8. Furthermore, as I reminded the father this morning, it is not the role of this Court to embark upon litigation to decide every factual or other dispute that the parties may have or, in this case, any frustrations or accusations that the father may have - either rightly or wrongly – against the mother and third parties.  Most of the applications have been dealt with on a summary basis. 

9. In relation to the remaining matters contained in the substantive parenting proceedings, the mother has indicated her wish to withdraw paragraphs 1, 2 and 3 of her amended response to the initiating application filed on 1 September 2015.

10. In paragraph 1 the mother sought an order that the two children D and B (who are 17 and 14 and the only two children remaining under the age of 18) live with her.  There is an order to that effect from 24 August 2007.  Therefore, there is no need for her to pursue that.  In paragraph 2 the mother sought an order that the children spend no time with the father. In paragraph 3 the mother sought that she have sole parental responsibility in relation to major long-term issues concerning the children. 

11. The mother’s indication that she wishes to withdraw those paragraphs is made with the caveat that she would seek a suspension of paragraph 3 of the order of 24 August 2007 which was the order made by Federal Magistrate Burnett, as he then was. This order provided that the children spend time with the father as agreed between the parties and at least as follows: 

    a)each Saturday afternoon between 2.00pm and 4.00pm;

    b)the contact to be at Suburb G; and

    c)by telephone each Thursday. 

12. It is common ground between the parties that the father has spent no time and had no communication with the children since 2008. In those circumstances there seems little utility in a continuation of that order. 

13. However, although the father indicated he did not seek any parenting order and the order has not been adhered to by the parties since 2008, there is nevertheless an order in his favour that the children spend time with him.  I was disinclined to simply dismiss paragraph 3 in the absence of the father. Ms Bertone, urges me to suspend that order given the mother’s concerns that there might be some application made against her given that there is an extant order for the children to spend time with the father and it is not being complied with.  It seems to be entirely appropriate to suspend the order having regard to the circumstances of this case. 

14. In making that order, the parenting proceedings would be disposed of on a final basis. However, the mother wishes to proceed with an application that the father be declared a vexatious litigant and I have been requested to list that application before me on another occasion and, of course, that would be on notice to the father. There also remains the father’s application that a vexatious proceedings order be made against the mother.

15. I propose to suspend paragraph 3 of the order made on 24 August 2007 and I grant the mother leave to withdraw the orders sought in paragraphs 1, 2 and 3 of her further amended response to the initiating application filed on 1 September 2015 and to list the remaining matters for hearing on another date.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 29 September 2017.

Associate: 

Date:  27 October 2017.