Parents Fail to Exercise Due Diligence in Parenting Proceedings
Dacey & Gladstone [2021] FedCFamC2F 413 (17 November 2021)
The mother commenced proceedings seeking specified time with the child. However, in the course of the proceedings the mother has failed to maintain contact with her counsel. The father likewise failed to file documents and appear consistently.
Facts:
The mother commenced these proceedings by the filing of an Initiating Application (Family Law) on 29 October 2020. The respondent father has never filed a Response or any other documents. Ms Falcomer was appointed as the Independent Children’s Lawyer for child X born in 2007. The mother filed an affidavit and notice of risk on the same day with the Initiating Application.
The mother sought for the child X born in 2007 to live with the Father; to spend specified times including school holidays with the Mother; for communication between the Mother and child at all times as agreed and otherwise as specified and authorities for each parent to be provided with medical and educational information for the child. Despite the Father being served with the Mother’s documents on 9 November 2020, he did not file any Response documents.
A Consent Order made on the first return date which was 7 December 2020. The Father appeared. The Consent Order provides that the child lives with the Father and spends agreed and/or specified time with the Mother. The Order further provided that the child be independently represented and that there be a Family Report.
Upon order dated 4 May 2021, the Mother attended Court and the Father did not. The Order vacated the trial dates which had been set in December 2020, discharged some of the 7 December 2020 Orders including the trial directions and that there be a Family Report and provided that there be a Child Inclusive Conference as it was then called, on a date to be fixed. The order dated 9 September 2021 discharged the requirement for a Child Inclusive Conference, listed the matter for mention on 10 November and noted that a Notice of Discontinuance may be filed by the Applicant Mother.
Ms Aitken of Ruhl Family Law advised the Court that the Mother was considering not proceeding with her Application for parenting orders. The ICL Ms Falcomer did not object on 9 September to the matter being adjourned for mention on 10 November and with the possibility that the proceedings be discontinued. When the matter came before the Court on a 10 November, Ms Aitken appeared for the Mother but without instructions. Again, there was no appearance on behalf of the Father. The ICL Ms Falcomer appeared.
Ms Aitken advised the Court that she had tried on nine occasions since 9 September to contact the Mother. She had not been able to contact the Mother. Ms Aitken said that as far as she was aware, the child X who is now 14 ½, may not have spent time with the Mother for over 5 years. Ms Falcomer advised the Court that the Father has never participated in the proceedings; that the subpoenaed material indicates that the child is at school in Town B; and that it appears that the Paternal Grandmother has considerable involvement with the child. Ms Falcomer advised that she would support the proceedings being discontinued or dismissed. Both parents seem to be taking no interest in the proceedings.
Issue:
Whether or not the proceeding should be dismissed.
Applicable law:
(b) file a response before the time for the Respondent to file a response has expired
(g) defend the proceeding with due diligence.
Analysis:
The Applicant Mother not remaining in contact with her lawyer and not giving instructions, has not conducted the proceedings as is required by the overarching purpose and she has not complied with and/or is in default of, Rules 10.26, 10.27 and 1.33. The Respondent Father is in a worse position. Despite being served with the Mother’s documents one year ago, he has done nothing except appear on the first return date. He has filed no documents.
It is important that a busy Court such as this is able to devote as much time and attention to each file as that file requires. Litigants who do not prosecute their case promptly or do not even respond to a case against them, cause delays in the court. This is unfair to litigants who comply with the rules and give their lawyers instructions about the matters relevant to their case.
Conclusion:
Taking into account the action or lack of action of the Mother and Father in this case and taking into account the requirements of the Act and Rules, the Court dismissed the proceeding TVC1568/2020. The proceedings are removed from the Active Pending Cases List. The Independent Children’s Lawyer is discharged.
