Collingwood & Collingwood (No 2)
[2022] FedCFamC1F 171
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Collingwood & Collingwood (No 2) [2022] FedCFamC1F 171
File number(s): BRC 6830 of 2017 Judgment of: HOGAN J Date of judgment: 17 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother did not appear at the recommenced hearing – Where the hearing has previously been adjourned when the mother did not appear – Where it is appropriate that the hearing continue. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 17 March 2022 Place: Brisbane Counsel for the Applicant: Ms Chekirova Solicitor for the Applicant: A P Hodgson & Associates The Respondent: No appearance Counsel for the Independent Children's Lawyer: Ms McArdle Solicitor for the Independent Children's Lawyer: 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:
17 MARCH 2022
IT IS ORDERED THAT:
1.The part heard final hearing of this matter will continue today in the absence of the Respondent.
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 intend to continue with the trial in the absence of the mother.
I record that the link via Teams will remain open for the entirety of this hearing. Thus, the mother has, at any time, the opportunity – by responding to the email invitation sent to her on numerous occasions – to join the proceedings and to participate.
In arriving at the decision to proceed in the mother’s absence, I have taken into account the following considerations:
(a)this matter is a part-heard trial (now in day 11) and the evidence in it was last taken in mid-November 2021, at which time the mother was represented; and
(b)I determined in January 2022 to adjourn the hearing then from its previously listed days because:
(i)the mother had become a self-represented litigant after the conclusion of the hearing in November 2021; and
(ii)out of a concern to ensure that the mother was afforded an appropriate opportunity to take up the responsibilities of acting as a self-represented litigant; and
(iii)to ensure the mother had sufficient and appropriate time to undertake whatever preparations she needed to undertake in order to participate in the conclusion of the trial; and
(c)the state the proceedings have reached is that:
(i)on the last day of the previous tranche of the hearing in November 2021, I stood the matter down prior to the conclusion of the usual Court day to accommodate a request by Counsel who then appeared for the mother to have the opportunity to take instructions from her about whether there were any matters that should be the subject of re-examination (an application not opposed by Counsel for the father or the Independent Children’s Lawyer, understandably I think, given the nature of these proceedings) and, consequently, a large proportion of that day was lost; and
(ii)the mother (who has been the subject of lengthy cross-examination over a number of days) remains in a position of, potentially, having the opportunity to give further evidence in re-examination; and
(iii)there remain, potentially, two witnesses in the mother’s case who may be required to be cross-examined, and finally, the author of the Family Report; and
(iv)I have already heard the evidence of the father in the proceedings; and
(d)the obligations on any court in exercising the wide discretion associated with matters of practice and procedure such as this: the comments made by the High Court in Aon Risk Services Australia Ltd v Australian National University[1] to the effect that calls on the system, as it were, of other matters awaiting determination are appropriate to take into account and that it is appropriate, in the modern era, for trial judges to undertake active case management; and
(e)the obligations on the Court imposed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and that the overarching purpose of the same is to facilitate the just resolution of disputes according to law and as quickly and inexpensively and efficiently as possible: see r 1.04 of the Rules.
[1] (2009) 239 CLR 175.
Given that I am part-heard in the proceedings, it seems to me that the most appropriate course (and the manner by which I can do my best to accord fairness to each of the parents and to take into account the systemic issues) is to proceed to take the remainder of the evidence; to order that a transcript of the same be obtained and be provided to the parties (including, of course, Ms Collingwood); to afford the mother an opportunity (on a fairly tight timeframe) to provide notice of any proposed application for leave to cross-examine and/or re-examine any of the witnesses who remain and then to proceed to take submissions. These latter courses will not occur today, but on a date sometime in the week of 11 April of this year.
And so Ms Collingwood will again be afforded what some, and I suspect, many, may regard as an additional indulgence in terms of the process: she will, therefore, be afforded the opportunity to determine, with the benefit of the transcript of the questions already asked, whether she wishes to ask any questions; and the additional benefit of additional time, with the benefit of the transcript, to determine the nature of any submissions she may choose to make if she chooses to appear on the date that will be identified for the final submissions phase of these proceedings.
For those short reasons delivered orally this morning, I intend to continue to hear this trial.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 18 March 2022
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