Bosch & Annema (No 2)
[2024] FedCFamC1F 321
•15 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bosch & Annema (No 2) [2024] FedCFamC1F 321
File number: SYC 8269 of 2021 Judgment of: SCHONELL J Date of judgment: 15 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father did not appear at the hearing – Where the father made an application by way of email to adjourn the current trial dates, in circumstances where he resides in the United States of America, and in which he submits he is in financial difficulty and is unable to obtain legal representation by way of the scheme pursuant to s 102NA of the Family Law Act 1975 (Cth) – Where, pursuant to a liberty provided by way of previous orders of the Court, the mother seeks for the matter to proceed on an undefended basis as against the father – Application for adjournment dismissed – Application to proceed on an undefended basis dismissed. Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 15 May 2024 Place: Sydney Applicant: Litigant in person (did not participate) Solicitor for the Respondent: Swaab Attorneys Solicitor for the Independent Children's Lawyer: SCB Legal ORDERS
SYC 8269 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOSCH
Applicant
AND: MS ANNEMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
15 MAY 2024
THE COURT ORDERS THAT:
1.I dismiss any application made by the father for an adjournment of the proceedings.
2.I decline to make orders at this stage that the matter proceed on an undefended basis.
3.I confirm that the matter is to remain listed for final hearing for three days commencing 22 May 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bosch & Annema has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
On 24 April 2024 a Judge of Division 1 of the Court listed this matter for final hearing for three days commencing on 22 May 2024.
The proceedings relate to the parties’ child X, who is currently aged approximately 10 years. X lives in the care of his mother who lives in Australia. Noah’s father, who is the applicant in the proceedings, resides in State D, in the United States of America.
For the purposes of the proceedings, there has been prepared a Family Report which is dated 9 October 2023. That report records a history of the parties, but in particular, it records that there is consensus that the father has not spent significant unsupervised time with the child and it would appear that the time has largely been spent by way of Skype.
On 24 April 2024 directions were made for the matter to proceed to a final hearing, including that the parties were to file and serve by 8 May 2024 a Financial Statement, a single consolidated trial affidavit and an affidavit of each witness that they intend to rely upon. I am advised today that the mother has complied with those directions, and I am advised that there has been no compliance by the father. The father has not appeared today notwithstanding a link being sent to him to appear by way of Microsoft Teams.
By letter dated 15 May 2024 sent to the Associate to Curran J, the father advises the Associate that he is financially constrained in his ability to attend Sydney and that he has been having difficulties seeking the appointment of a lawyer pursuant to s 102NA of the Family Law Act 1975 (Cth). He asks that his email be treated as what he describes as “formal notice that I will be applying to your Honour for an adjournment of the final hearing”.
The father’s statement that he has been unable to obtain a lawyer pursuant to 102NA is curious in circumstances whereby the 102NA order was discharged by the court on 24 April 2024. The fact is that the father has not complied with the directions and the hearing is to commence next week.
The mother seeks in accordance with the directions that were made on 24 April 2024 that the matter proceeds on an undefended basis as a consequence of orders made by the Court giving her liberty to apply on that basis. I am not satisfied at this stage that the matter should proceed on an undefended basis and accordingly the matter will remain listed for final hearing to commence on 22 May 2024. In that respect, therefore, I refuse to make any order to adjourn the final hearing dates. I further note that the mother’s solicitor has advised that the report writer will be available to be cross-examined on the first morning of the hearing.
I will leave it to the trial judge to determine what should be the order of events on that day and whether the matter will proceed.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 15 May 2024
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