BLIGH & TROTT

[2020] FamCAFC 234

FAMILY COURT OF AUSTRALIA

BLIGH & TROTT [2020] FamCAFC 234

FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the appellant seeks an adjournment of his appeal hearing asserting that it clashes with another hearing in another jurisdiction – Where the appellant has not taken part in this hearing – Where the Court is not satisfied that there is any proper basis to grant the adjournment – Application dismissed.

FAMILY LAW – COSTS – Where the respondent’s costs of today be reserved to the hearing of the appeal.

Family Law Act 1975 (Cth)

APPELLANT: Mr Bligh

RESPONDENT: Mr Trott

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 2766 of 2015

APPEAL NUMBER: NOA 69 of 2019

DATE DELIVERED: 17 September 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide (via telephone-link)

JUDGMENT OF: Strickland J

HEARING DATE: 17 September 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT ORDER DATE: 24 June 2019

REPRESENTATION

THE APPELLANT: No appearance

SOLICITOR ADVOCATE FOR THE

RESPONDENT:

Mr Evans

SOLICITORS FOR THE RESPONDENT: Evans Brandon Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms McArdle

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

1. The Application in an Appeal filed on 11 September 2020 be dismissed.

2. The respondent mother’s costs of today be reserved to the hearing of the appellant father’s Notice of Appeal listed at 9.30am AEST on Tuesday 22 September 2020.

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 Bligh & Trott 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT ADELAIDE

Appeal Number: NOA 69 of 2019
File Number: BRC 2766 of 2015

Mr Bligh

Appellant

And

Ms Trott

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court today is an Application in an Appeal filed by Mr Bligh (“the father”) on 11 September 2020. In that application, the father seeks that the matter be adjourned until physical appearances are allowable, or until the conclusion of his criminal trial. Pausing there, what the father is seeking be adjourned, is the hearing of his Notice of Appeal which is listed to be heard in the Brisbane Registry of the Family Court of Australia on Tuesday 22 September 2020.

2. The affidavit filed in support of the application is brief, and in it the father says as follows:

   (1)I am a dyslexic self represented litigant.

   (2)I am mid-trial on serious criminal charges and will be on the 22^nd of September 2016 [sic - 2020].

   (3)My visa, will not permit me benefits, Welfare, or to Work, Volounteer [sic] or study.

   (4)I do not own a phone - so there is no phone number I can Guarantee for the 22/09/2020.

3. Ms Trott (“the mother”) filed a Response on 14 September 2020. In that Response, the mother seeks dismissal of the application. There is a supporting Affidavit which annexes a number of documents, including email correspondence passing between the mother’s solicitors and the father, the Court and the parties. The only document that is relevant, I am told, for the purposes of today, is a copy of an email sent on Monday 14 September 2020 by the mother’s solicitor to the father. 

4. In summary, that email refers to the application for an adjournment, and indicates that the mother disputes certain facts alleged in that application and the supporting affidavit, and, in particular, that the father does not have access to “communication tools”. Further, it puts the father on notice that to overcome the factual dispute, he needs to file a letter from the relevant Court concerning the court listing on 22 September 2020, or a letter from his criminal lawyers confirming that there is a court event on 22 September 2020 at which his appearance is required, and that he must take steps to address the difference between the contents of the affidavit and his emails, wherein he lists both a phone number and an email address for communication. Finally, the email indicates that the mother opposes the adjournment.

5. Separate to that, counsel for the Independent Children's Lawyer (“ICL”) has appeared today and has indicated that the ICL also opposes the adjournment.

6. The father has not appeared today, and, to put that into context, to repeat, he filed his application on 11 September 2020. What then happened was that, on 14 September 2020, after receiving advice on that day from the Appeal Registrar that his application was listed for hearing on 17 September 2020 by telephone, the father sent an email to the ICL, and copied the Northern Appeals Registry. The email is a lengthy one and I do not propose to read it all, or to incorporate it in these reasons, but, in summary, what the father said in that email was that he was in the middle of serious criminal charges, and he did not have time to deal with this matter as well. He also said:

   As I have no private phone of my own; and there is no option to attend in person; I can not be part of any hearing, of any sort, without losing privilege.

7. On 15 September 2020, the assistant to the Appeals Registrar sent an email to the father in response to the email I have just referred to, and again, I will summarise that email. It was said that, in light of the father indicating that he has no private phone of his own, and no option to attend in person, the Court was making available a courtroom at the Brisbane Registry on 17 September 2020, and that he would have access to a telephone in that courtroom to enable him to attend this hearing.

8. Advice was also given to the father as to whom he should contact when he arrived at Court, and what the practical arrangements would be.

9. This morning, prior to the hearing today, the father responded to that email as follows:

   Dear Registrar

   I’m sure you have the best of intentions, however I don’t think it is as simple as I can just attend court during the current Covid 19 pandemic. There are certain prerequisites.

   And, as I say, the upshot is that the father has not attended.

10. Given that, what the Court has attempted to do is to contact the father, because, completely at odds with his assertion that he has no private phone, in his email correspondence he provides a mobile phone number and also an email address. I should perhaps pause to say that I have been advised by the Brisbane Registry that, at the time the hearing was called on, the father’s name was called on two occasions; he did not respond, and he was nowhere to be found in the Brisbane Registry. I should also add that the father was provided with the same dial-in numbers as were the other parties, and he has failed to telephone in.

11. My court officer has attempted to telephone the father at the mobile telephone number he has provided. On the first attempt, it went to message bank, and my court officer left a message for the father to contact the Court urgently because a hearing was taking place, and for him to use the numbers that he had been provided with. Out of abundant caution, my court officer then made a second attempt to telephone the father on his number. I understand on that occasion it did not go to message bank, but appeared as though someone answered, but no one actually said anything, and all my court officer could do was again leave the same message.

12. I then delayed the continuation of this hearing for five or so minutes to see if the father telephoned in. He has not, and thus I have resumed the hearing, while leaving open the phone numbers the father has, in the event that he decides to appear at this hearing, albeit by way of telephone link, but that has still not happened. 

13. In those circumstances, I am quite prepared to proceed with the determination of the father’s application to adjourn the hearing next week.

14. I confirm that the father has failed to appear at the hearing of his own application, and despite the attempts that have been undertaken by both the Brisbane Registry, this Appeal Court, and my court officer, the father has still not taken up the opportunity that was provided to him to attend.

15. It can be seen from my recitation of the recent history of this matter, that what the Court has attempted to do is to meet every hurdle that the father has placed in the way of him being able to attend this hearing, namely he allegedly does not have a private phone, and he cannot attend in person. Those matters have been addressed, yet the father has still not attended the hearing today.

16. The other matter I mention in this context, is that it seems what the father is saying in relation to his adjournment application, is that he has some sort of hearing in his criminal proceedings on Tuesday next week. However, he has not identified what that hearing is, what time it is, what the nature of it is, and he did not respond to the appropriate request made of him by the mother’s solicitor in the email of 14 September 2020, which I referred to earlier, namely for him, in effect, to provide that detail. If he had done so, then, obviously an assessment could be made, not only by the mother, but also by this Court, as to whether an adjournment was necessary, or appropriate, or not.

17. Can I also say that in the submissions I have received today, particularly from counsel for the ICL, doubt has been cast upon whether there is any hearing in the father’s criminal proceedings that clashes with the hearing of his appeal. 

18. That said, in my view, there is no basis provided for an adjournment to be granted.

I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 17 September 2020.

Associate: 

Date:  21 September 2020