Collingwood & Collingwood
[2022] FedCFamC1F 19
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Collingwood & Collingwood [2022] FedCFamC1F 19
File number(s): BRC 6830 of 2017 Judgment of: HOGAN J Date of judgment: 24 January 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Adjournment of trial – Where the mother did not personally appear at the recommenced hearing – Where the mother is now self-represented – Where it is appropriate that the proceeding be adjourned. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 24 January 2022 Place: Brisbane Counsel for the Applicant: Ms Chekirova Solicitor for the Applicant: A P Hodgson & Associates Respondent: No appearance Counsel for the Respondent: Ms McArdle Solicitor for the Respondent: Brisbane Family Law Centre ORDERS
BRC 6830 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR COLLINGWOOD
Applicant
AND: MS COLLINGWOOD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
24 JANUARY 2022
IT IS ORDERED THAT
1.The part heard final hearing of this matter listed to recommence on 25 January 2022 is vacated.
2.The part heard final hearing of this matter is now listed for four (4) days to recommence at 10.00 am on 28 February 2022 before Justice Hogan commencing in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
3.All parties attend the part heard final hearing of this matter in person.
AND IT IS FURTHER ORDERED THAT:
4.The Independent Children’s Lawyer has leave to inspect and copy documents produced under subpoena directed to J Hospital and the legal representatives for the Applicant father have leave to inspect and copy the same and the Respondent mother has leave to inspect the same.
5.A Transcript of the hearing today be obtained by the Court and marked as Exhibit 2 in the proceedings today and provided to the legal representatives for the Applicant and to the Respondent mother and to the Independent Children’s Lawyer, by email.
6.The Independent Children’s Lawyer has leave to issue any further subpoena thought necessary.
7.To the extent that it is necessary, the subpoena directed to Dr K, Psychiatrist is enlarged such that the date for return of the documents sought will be Friday, 4 February 2022.
8.The Independent Children’s Lawyer has liberty to apply on the giving of 24 hours’ notice in writing should it be necessary for the Independent Children’s Lawyer to move the Court to seek a warrant for Dr K’s arrest under r 6.41 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in the event that the circumstances prescribed by that Rule are satisfied.
IT IS NOTED THAT:
A.The Court has today informed the parties that in the event that the matter does not conclude by 4.00 pm on Thursday, 3 March 2022 it is the Court’s intention to sit to conclude the matter on 4 March 2022.
B.In the event that any application is made by the Respondent mother for any leave to participate by electronic means at the part heard final hearing of this matter then that application be brought to the attention of Hogan J forthwith.
C.The list of documents sought to be tendered by the Independent Children’s Lawyer be provided by the Independent Children’s Lawyer to the father’s legal representatives and to the Respondent mother by no later than 4.00 pm 28 January 2022 and that a copy of the same be copied into ...
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Collingwood & Collingwood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
I think the most appropriate course in all the circumstances is that I adjourn the hearing for further hearing for four days, at this stage commencing on 28 February 2022. Four March 2022, which is the Friday of that week, would remain available should the matter need to utilise that day – I will keep it free, other than for the matters that are listed currently at 9.15 and 9.30 on that morning with the expectation that, if needed, the matter would continue into that day to conclude it.
The reasons for the decision I have reached to adjourn the matter probably should, I think, be restated for the record.
Those reasons are as follows.
As established by Exhibit 1, an email sent by Ms Collingwood to the Independent Children’s Lawyer at 7.56 pm last night, Ms Collingwood does not appear this morning at the recommencement of the trial. The orders nominating today as the date for the continuation of the trial were orders that were made on 26 November 2021. That was the 10th day of this trial. During those 10 days Ms Collingwood was legally represented. However, that is no longer the case and a Notice of Ceasing to Act filed by her now former solicitors (dated 10 January 2022 and sealed 17 January 2022) informs of that change of position.
It is in that context then that the receipt of Exhibit 1 by the Independent Children’s Lawyer needs to be considered.
I have, as recourse to Exhibit 2 today (which will be a copy of the Transcript, once obtained) shows, determined to order a Transcript so that I could continue today to have discourse with the legal representatives for the father and the Independent Children’s Lawyer to determine the appropriate course, given the contents of Ms Collingwood’s 23 January 2022 email. That email advised that she had that day been identified as a close contact of a confirmed case of
COVID-19 and had been directed to isolate, and that, consequently, she would be unable to attend today or participate in the proceedings and that she would like to request an adjournment due to the circumstances. Ms Collingwood also conveyed her apologies for any inconvenience caused.
As I have already outlined during the course of this morning, I had, in the course of my management of this proceeding prior to it commencing its trial last year, provided to Ms Collingwood an explanation of process and procedure to discharge my obligations under Re F: Litigants in Person Guidelines (2001) FLC 93-072. That explanation was perhaps
self-evidently given at a time when Ms Collingwood was acting on her own behalf. Given that it was provided at a time when Ms Collingwood did not appear, I ordered, on that occasion, that a Transcript be obtained, marked as an exhibit and that the Transcript then be provided to all of the parties. In that way, Ms Collingwood has had available to her in written form (namely, the Transcript of the 5 August 2021 event) an explanation of process and procedure which includes, of course, those matters open to her.
During the course of the proceeding today, I have also had discussion with those who appeared in relation to the matters that remain outstanding in this trial: namely, the cessation of Ms Collingwood’s evidence following her giving any evidence in re-examination that is appropriate; secondly, her making available the witnesses – Ms L and Ms N – who, at this stage at least, remain witnesses in her case and who have provided evidence in her case, for cross-examination; and, then, the cross-examination of the author of the Family Report, Ms M.
I have already raised with the legal representatives the prospect that, given the stage at which the trial has now reached, Ms Collingwood’s continued participation in it occur via electronic means, and I will continue to consider that during the course of this appearance. The realities associated with that course in practical terms, though, is another factor that has convinced me that it is more appropriate and proper to adjourn the further hearing of the matter to the week commencing 28 February 2022, rather than attempt to bring the matter on for further hearing during the balance of this week. That is, as I say, a secondary factor taken into account in the consideration of Ms Collingwood’s application for an adjournment based on the contents of her email sent to the Independent Children’s Lawyer last night (Exhibit 1 in the proceeding today).
I had also taken into account the fact that certain documents have, I am told by Ms McArdle, (who appears on behalf of the Independent Children’s Lawyer) been returned in answer to a subpoena issued by the Independent Children’s Lawyer in the period between the trial being adjourned in late November 2021 and this morning. Earlier today I made an order according to the Independent Children’s Lawyer and the father’s legal representatives leave to inspect and copy, and according to Ms Collingwood leave to inspect, whatever documents may have been produced. The fact that Ms Collingwood is not present today in the precincts of the Court obviously means that she is unable, by virtue of that non-appearance, to inspect any of the documents, in any event. That is, I think, a third factor that suggests that the appropriate course is to adjourn the matter to the week commencing 28 February 2022.
I have also taken into account the fact that the father and the Independent Children’s Lawyer are legally aided and it seems to me to be more appropriate to attempt to reserve, as it were, the expenditure of public funds for that respective representation to one block rather than to require this matter to continue to appear each morning this week (other than Wednesday, which is a public holiday) in order to determine whether it would be possible in the circumstances to continue with the hearing. I say that because the contents of Ms Collingwood’s email (Exhibit 1) convey that she has been identified as a close contact and directed to isolate, but does not convey that she herself is unwell: in that sense, it may have been possible for her to participate in this proceeding via electronic means such as Teams or even telephone and would not have been precluded from doing so by virtue of her own ill health.
However, it is a combination of all of the events in this particular matter that has persuaded me that the most appropriate course, in my attempt to conclude the hearing, is to adjourn the matter to the week commencing 28 February 2022.
Helpfully, in the time that the matter was stood down, the Independent Children’s Lawyer has been able to ascertain that Ms N, a witness in the mother’s case, would be available to be cross-examined in the week commencing 28 February 2022 – as is Ms M, the author of the Family Report. Unfortunately, there is no information in relation to whether Ms L is available or not during that week; that is something that will simply have to be addressed in the event that the mother persists in relying upon her evidence as forming part of her case in these proceedings.
For those short reasons, then, I have decided to adjourn the matter to the week commencing 28 February 2022; to list it for four days; and to reserve, should it be necessary, the fifth day (which is 4 March 2022) in order to conclude the hearing of this matter.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 27 January 2022
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