Bishop and Dent

[2016] FamCA 1082

FAMILY COURT OF AUSTRALIA

BISHOP & DENT [2016] FamCA 1082

FAMILY LAW – PARENTING – Adjournment application – Where the mother does not appear at final hearing – Where the mother was present in the Registry the morning of final hearing – Where the mother delivers two letters to the Registry – Concluded the letters are to be interpreted as an adjournment application – Where the mother has not filed a trial affidavit – Where the mother has been an active participant up until the final hearing – Where the child is starting school in the coming months – Ordered application for adjournment refused

APPLICANT: Mr Bishop

RESPONDENT: Ms Dent

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

FILE NUMBER: (P)NCC 2650 of 2014

DATE DELIVERED: 5 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 5 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Betts

SOLICITOR FOR THE APPLICANT: Michelle Thomas Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Mooney
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Jennifer Blundell & Associates

Orders

1. Leave is granted to the legal representatives to inspect the Federal Circuit Court file in relation to Dent & Dent NCC1606/2011 in which the mother is a party.

2. Judgment reserved.

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. All current parenting Orders in respect of the child B born … 2011 are suspended.

THE COURT NOTES THAT

(A)Correspondence with the Court being Exhibits 1 and 2 was characterised as an Application for Adjournment by the mother despite her absence.  That Application was dismissed.

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 Bishop & Dent 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 NEWCASTLE

FILE NUMBER: NCC 2650 of 2014

Mr Bishop

Applicant

And

Ms Dent

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These are proceedings listed for final hearing before me for parenting orders in respect of one child, B, aged five. The parties to the proceedings are the parents of that child. 

2. The applicant father is present at court with his solicitor and counsel ready to proceed. 

3. The respondent mother has not appeared in this courtroom although I am told by an officer of this Court that she was present in the Registry this morning.  The father through his counsel indicates that he too saw the mother or perhaps just her car in the vicinity of the Court. 

Evidence

1. I take the following matters into account. 

2. On 22 July 2016 the matter came before me as a Less Adversarial Trial with a long history.  At that time I indicated that the matter should be heard by the end of the year, my best recollection being that there was the additional urgency that always arises when a child is about to start school in the following year. The dates of 5 - 8 December 2016 were advised as the likely dates on that occasion. 

3. On 4 August 2016 the mother filed an Application in a Case about inspection of material which was subsequently dealt with and largely dismissed. 

4. On 10 August 2016 the Registrar considered a further application by the mother in relation to subpoenaed material and directed the mother to comply with the rules. 

5. On 19 August 2016 the mother filed her Amended Response to final orders.

6. On 23 August 2016 trial directions were made by me. The final hearing dates were set down for the four days commencing today. The father indicated that he would rely on himself alone; the mother that she would rely on herself, the maternal grandmother and possibly an occupational therapist for the child. 

7. Arrangements were made to confirm the attendance of Dr C who prepared the Single Expert Report and Ms D who prepared a Family Report.  The affidavits were to be filed by 20 October 2016. 

8. The father filed his affidavit on 21 October 2016 (which could not create hardship for anybody).  On that occasion an interim order was made restraining the mother from attending or communicating with any education or medical facility the child attended due to there being a risk of the child’s therapies being disrupted by some of the mother’s past conduct. 

9. On 23 September 2016 there was a procedural order made with leave granted to all parties to inspect the subpoenaed material.  On that day the mother made an oral application to have photocopy access to all subpoenaed material that did not fall into the category of criminal or medical records.  That application was opposed.  The mother was given leave under certain conditions to approach about any particular documents where there was a need for photocopying. 

10. On 21 October 2016 the mother filed an Application in a Case seeking that these hearing dates be adjourned until “mid next year.” 

11. At that time the mother also again asked for leave to photocopy all subpoenaed material in order to assist her at final trial.  The mother renewed her application about being able to contact therapy providers and to have the restraint on that conduct discharged.  That application was dismissed on 18 November 2016 when it was heard.

12. On that occasion, 18 November 2016, when the mother’s Application in a Case was heard there was an oral application on behalf of the Independent Children’s Lawyer to have access to a file in the Federal Circuit Court which is relevant to one or more of the mother’s older children. 

13. The mother opposed access to that file and the issue was stood over to the first day of this hearing. 

14. It is apparent that the mother has been actively pursuing her case in the litigation in the sense that many interim applications have been made and she did file her Amended Response.  However, what she has not done is to file any affidavit and, most importantly, although she was in the Registry this morning has chosen not to be present in Court today. 

15. There is a letter from a doctor which has become Exhibit 1 dated 29 November 2016.  I read that letter to be in the nature of a letter of support for the mother rather than being a medical certificate of the type that would excuse the mother’s attendance. 

16. There is no reference in that letter to whether or not the mother had been a patient of this practice or this particular doctor at all and, if so, for what period of time; what she was being treated for; and whether or not there was a diagnosis that related to the doctor’s reference to the mother being “totally overwhelmed and in my opinion at this time is emotionally too fragile to cope.” 

17. There was also nothing in that letter from the doctor to indicate how long in his view the mother was likely to be unable to attend at Court or what the condition was that would continue to affect her.

18. I cannot accept that such an open-ended letter of support should be sufficient basis to adjourn four days of court hearing in those circumstances. 

19. Exhibit 2 is a letter from the mother herself setting out her difficulties in preparing an affidavit due to some electrical or IT failure that meant there was a practical problem.  If I accept that evidence, and I have no reason not to, that the mother was unable to use her computer in the first days of this month it does not represent an explanation or excuse for why the mother did not file her affidavit in a timely way, that is, on or before 20 October 2016. 

20. I also accept what has been said from the bar table that there was nothing foreshadowed in the mother’s Application in a Case about the need for an extension of time nor, I gather, from the absence of submission about it, has a draft affidavit been provided to the other parties in the expectation that the document would be filed in due course. 

21. What it amounts to is that the mother having made an application to adjourn the proceedings in October and having failed with that, now indirectly makes a further application for adjournment. 

Conclusion

1. The father is here, he is ready to proceed. The needs of the child for certainty, particularly for the beginning of his formal education in 2017, factors strongly in the balance between the benefit to the court of having the mother’s evidence and her participation; against the need for the matter to proceed and for orders about this child to be finalised. It comes down strongly in favour of the latter. 

2. Accordingly, to the extent that the mother’s correspondence with the court has represented an adjournment application, I refuse the application. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 5 December 2016

Associate: 

Date:  19 December 2016