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Witnall & Brixton [2012] FamCA 4

Categories: Practice and Procedure
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Judge Name: Bennett J
Hearing Date:
Decision Date:04/01/2012
Independent Children s Lawyer: Mr Halliday
Applicant: Mr Witnall
Respondent: Ms Brixton
Solicitor for the Applicant:
Counsel for the Applicant: No Appearance
Solicitor for the Respondent:
Solicitor for the Independent Children s Lawyer: Robert Halliday & Associates
File Number: DGC 1058 of 2010
Jurisdiction: Family Court of Australia
Parental Responsibility Outcome: Not Relevant
Residential Outcome: Not Relevant


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Orders

IT IS ORDERED THAT:

This matter remain listed for final hearing on 9 January 2012 at 10.00 am and in the event that the respondent mother fails to appear at Court the father and the independent children’s lawyer have leave to apply for the matter to proceed to a final determination on that day notwithstanding the non-appearance of the mother.

The witnesses of the independent children’s lawyer, being Mr K and Ms P, principals of the schools attended by the children R born … May 1996 and L, give their evidence by telephone.

The solicitors for the independent children’s lawyer be responsible for service of a copy of this Order upon Roberts Beckwith Partners by electronic means.

AND IT IS DIRECTED THAT:

This order be sent to the mother at her email address, … , and to the mother care of her parents at … S Street, Town 1, Victoria, … .

Subject to any Address for Service filed by the father subsequently, the father’s address appear in the records of the Court as … K Street, Town 2, Victoria, … .

AND IT IS NOTED BY THE COURT THAT:

The orders sought by the applicant father are set out in his amended application filed 30 June 2010 and his case summary filed on 12 December 2011 which include parenting orders and that the funds currently held by solicitors Roberts Beckwith Partners, in the sum of $2,750, be paid out to the father as payment of costs reserved on 5 July 2010 and 6 July 2010.

The independent children’s lawyer does not oppose any of the parenting orders sought by the father including that the father have sole parental responsibility for the children, the children live with him and the mother’s entitlement to spend time with the children be reserved.

Neither the father nor the independent children’s lawyer require the family consultant, Ms H, for cross-examination at the final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Witnall & Brixton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ex tempore

This matter comes before me today to check that it is ready to proceed to a final hearing next Monday, 9 January 2012. This mention is conducted electronically by telephone.

The final hearing date, of 9 January 2012, was fixed by me on 12 September 2011 as was that date and time of today’s mention. At that time, I also pronounced orders which required the parties to file evidence and case outlines and for a family report to be prepared. It was noted at the foot of those orders that:-

AND IT IS NOTED BY THE COURT that in the event that a party fails or neglects to comply with this Order including, without being limited to, attending interviews for the family report, filing evidence and attending Court, the Court may determine the parenting matter finally on 9 January 2012 without any further input by the defaulting or non-complying party.

My reasons for decision on 12 September 2012 are published under the case neutral citation [2011] FamCA 829. I incorporate those reasons into these reasons. Those reasons and the orders were sent by the court to the mother at her parents’ address, being Mr and Mrs W Brixton … S Street, Town 1. This is the last address for the mother known to her former solicitors and set out in the Notice of Ceasing to Act filed by that solicitor on 16 August 201. In addition the reasons and order of 12 September 2012 were sent to the mother by email to the email address which the mother used to communicate with the court on 8 September 2011 (extracted in full in the said reasons).

The father, Mr Witnall, now represents himself. His previous solicitors have not filed a Notice of Ceasing to Act. I have directed that, henceforth, the father’s address appear in the records of the Court as … K Street, Town 2, … which obviates the need for him to file a notice to that effect.

The independent children’s lawyer appears today; that is, Mr Halliday, solicitor.

There is no appearance by or on behalf of the respondent, Ms Brixton. At the commencement of today’s mention, the conference call operator, Ms J, informed the Court that she had placed a call to the mother shortly before 9 am which the mother duly answered. The mother said she was getting into a cab and that she would not be participating in any telephone mention. Ms J mentioned that the mother said, “No way.” Ms J’s impression was that the mother sounded as though she was unaware of the telephone mention.

Subsequently, the independent children’s lawyer, Mr Halliday, informed the Court that he spoke to the mother at approximately 7 pm last night, by telephone, to remind her that there was a telephone mention today at 9 am. He reports that the mother sounded distressed and said that she did not want to be involved. She indicated that she was no longer residing in Victoria. The telephone number used by the independent children’s lawyer and by the On Call service was … .

RECORDED : NOT TRANSCRIBED

The file is endorsed with a note that the mother’s address is not to be disclosed on the orders or to the father. Quite apart from that, there appears to be some doubt as to where the mother is currently residing. Yesterday evening the mother indicated to the independent children’s lawyer that she no longer resided in Victoria. He believes that she may be residing in the NSW-Victoria border area.

The mother has four children in total but does not have daily care of any of them.

The mother’s oldest children are R born in May 1996 and L born in August 2000 who are residing with the father pursuant to interim parenting orders and who are the only children who are the subject of these proceedings.

There is Z, who is approximately two and a half years old. He resides with the maternal grandparents, Mr and Mrs Brixton, at … S Street, Town 1.

In September 2011 the mother gave birth to C. The independent children’s lawyer informs that court that C has been placed by the Department of Human Services at an undisclosed address, he understands that the mother may be in the process of placing C for adoption.

C’s paternity is not necessarily resolved. The mother has said that the father is Mr Y. The independent children’s lawyer says that, if the mother has reconciled her relationship with Mr Y, then they would likely be residing in the NSW-Victoria border area. Otherwise, the independent children’s lawyer indicates that the mother went through a period of homelessness prior to C’s birth.

I note that the family report, which was prepared by Ms H and released on 29 November 2011, is now the subject of an affidavit by Ms H sworn on 30 November 2011. That document has been sent to the mother at the address of her parents and also emailed to the mother at the email address shown earlier in these orders.

The independent children’s lawyer informs the Court that the Department of Human Services corresponds with the mother using the address of her parents at Town 1.

It seems that there is little more that anyone could do to bring the proceedings to the attention of the mother.

I am satisfied that the mother is aware of the hearing today but has elected not to participate.

In the event that the mother fails or neglects to appear for the final hearing next Monday, the father and the independent children’s lawyer have each expressed an intention to seek to proceed with the matter, unopposed, and to request that final orders be made.

I note that the independent children’s lawyer has filed three documents called proofs of evidence. Two of them are school teachers, in particular school principals. Ms P is the acting principal of School 1 where L attends, or where L will attend this year, in grade 6. Mr K is the principal of School 2 where R will attend as a year 10 student in 2012. Both educational institutions are out of the Melbourne metropolitan area. Neither the independent children’s lawyer nor the father have any objection to the evidence of Mr K and Ms P being adduced by telephone, so I have made that direction accordingly.

The remaining proof of evidence relates to Ms M, who is a protective worker with the Department of Human Services. It is recorded that Ms M has prepared two reports for the Children’s Court in relation to Z (the mother’s two and a half year old child who lives with the maternal grandparents). The independent children’s lawyer says that Ms M can “attest as to matters set out in her reports in relation to the mother’s history with DHS and current concerns.”

Whilst Ms M will have to travel from outer Melbourne, it seems to me necessary that she does attend Court and that she brings with her all of the records that the Department have in relation to the mother and any children of the mother. My preference is to take Ms M as the first witness in the proceeding, and today neither the father nor the independent children’s lawyer have any objection to that.

It is to be noted that the orders sought by the father appear in two documents filed with the court. One is the amended application initiating proceedings filed on 30 June 2010. In that document the father seeks sole parental responsibility, that the children live with him, and that the children’s time spent with the mother be reserved. He seeks an order against himself and the mother that neither party harass, intimidate, or denigrate the other by themselves or through other persons, and he seeks that the mother pay the father’s costs of the proceedings. He also sought an order that the mother vacate the property at T Street, Town 3, although he does not proceed with that because the dispute in relation to that home has been settled by orders obtained between himself and the mother in the County Court of Victoria.

The father also relies on a case summary in which he sets out on the first page “requested final orders” and refers to his amended application. With more particularity he seeks that any time spent by the children with the mother be “fully supervised at all times as per the recommendation of the family assessment” and that “any phone correspondence to or from the mother to be initiated by the children as recommended by the family assessment” with the exception of the mother being able to send text messages to the children’s telephone number, … . The father seeks that “any and all visitation required by the mother that is outside the [B Contact Centre] location is to be fully supervised at all times, including transportation, and to be at the full cost of the mother for delivering and return of the children”.

The independent children’s lawyer does not oppose any of the parenting orders sought by the father. Neither the father nor the independent children’s lawyer require the family consultant, Ms H, for cross-examination at the final hearing.

On Monday, in the event that the matter does proceed, I will need to be addressed as to why there needs to be much more particularity in the orders that are sought by the father than that simply any time spent by the children with the mother “be reserved”. An order in those terms would mean that the mother would have no enforceable right or entitlement to spend face to face time with L and/or R whilst preserving the father’s entitlement to agree that the mother could see or communicate with the children under such conditions as be imposed. As I said, that will be a matter for submissions next week.

The father also seeks the release to himself of $2780 currently held by his former solicitors, Roberts Beckwith Partners. He informs the Court that the County Court proceedings resolved the outstanding de facto property issues between he and the mother but that through their respective solicitors both parties agreed that the amount of $2780 be held in trust pending a completion of these proceedings on account of costs which had been reserved but which the father will seek that the mother pay. In this context, the father is now seeking an order that the mother pay the reserved costs set by Senior Registrar FitzGibbon on 5 and 6 July 2010, respectively in the sums of $1680 and $1100 (total $2780), and that the money in trust be applied in payment of those costs.

The independent children’s lawyer has agreed that he will be responsible for serving a sealed copy of the orders which I have made on Roberts Beckwith Partners by electronic means as soon as practicable. The purpose of this is to accord Roberts Beckwith Partners procedural fairness in relation to an order sought against them, although if they are merely holding any moneys on trust for the father and/or the father and the mother I would not expect there to be any appearance by them on Monday.

I will direct that these reasons for decision be sent by my associate to Roberts Beckwith Partners as and when they are transcribed.

After the mention was concluded, it was brought to my attention that a note was received from the Court’s National Enquiry Centre. The note read as follows:-

Hello,

(P)DGC1058/2010 – [WITNALL & BRIXTON]

For your information :

I have just received a call from [Ms Brixton] (resp) who called to find out if there was a hearing on today.

I did confirm that there was a defended Hearing for mention listed for 9am. She advised she was only told about this less then 24 hours ago.

[Ms Brixton] also advised she would not be attending the hearing today as she was not in the state.

Regards

KXXXXX XXXXX

Client Service Officer

National Enquiry Centre

1300 352 000

I will direct that the note be placed on the file in the correspondence section and can be called for by any of the parties at the final hearing next week.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 4 January 2012.

Associate:

Date: 5 January 2012


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