Bangi and Belov (No 5)

[2014] FamCA 937

FAMILY COURT OF AUSTRALIA

BANGI & BELOV (NO. 5) [2014] FamCA 937

FAMILY LAW – PRACTICE AND PROCEDURE – where one party has failed to attend – where party was clearly aware of the court date – where the party had been directed to rule 16.07 – evidence can be adduced in that party’s absence.

Family Law Rules 2004 (Cth) r. 16.07

APPLICANT: Mr Bangi

RESPONDENT: Ms Belov

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYC 850 of 2012

DATE DELIVERED: 27 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 27 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Adams & Partners Lawyers

RESPONDENT: Self-represented litigant (no appearance)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central

Orders

1. The matter is adjourned to 28 November 2014 at 10.00am for further hearing.  The further hearing is limited to the issue of the father becoming aware of Mr JJ, the matters set out in Mr JJ’s affidavit of 1 September 2014 and the time the child has spent with his father pursuant to interim orders dated 18 July 2014.

2. The Applicant father is to file and serve one single consolidated affidavit containing the evidence upon which he intends to rely at the adjourned hearing, by 7 November 2014.

3. The Respondent mother is to file and serve any affidavit in response to the father’s evidence and in relation to the time between the child and his father by 21 November 2014.

4. An interpreter in the [relevant European] language is to be appointed for the mother for 28 November 2014.

Notation

1. It is expected that if the mother does not appear on the next occasion, that the further evidence may be heard and the matter dealt with on an undefended basis in accordance with the Rules.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bangi & Belov 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 PARRAMATTA

FILE NUMBER: SYC 850  of 2012

Mr Bangi

Applicant

And

Ms Belov

Respondent

REASONS FOR JUDGMENT

1. First, in terms of the application to deal with this Application in a Case in the absence of the mother, the Rules in a general sense and in particular Rule 16.07 provides for the parties appearing in person and if legally represented with their legal representative. If a party does not attend (albeit that that particular Rule is directed to the first day), the other party can seek the orders sought by adducing evidence in the absence of the other party.

2. This is a matter where the mother must have reasonably expected that there could have been further evidentiary material, when the matter was adjourned for further hearing on 22 September 2014 because, as indicated, a new regime in relation to time between the child and his father had just commenced.

3. The mother did not appear at the proceedings on 22 September 2014 even though they had been adjourned from the actual last day of the hearing.

4. The mother attempted, I recall, by way of contacting the Court and asking to seek an adjournment, but did not appear herself, or through a legal representative, on that day seek that adjournment. It is possible that the matter could have even proceeded by way of hearing the further evidence on that day but I thought for more abundant caution and so that there would be every opportunity for her to be aware of what the further evidence would be, had her notified.  She was notified and it is clear that she was aware that the parenting proceedings were on today because even though she had instructed a lawyer for limited purposes only, she had in fact, instructed a lawyer.  The lawyer had sought an adjournment on her behalf that was opposed and that application was dismissed.

5. In those circumstances, I will deal with this application in her absence.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 October 2014.

Legal Associate: 

Date:  30 October 2014