Cooke & Morton

[2018] FamCAFC 9

FAMILY COURT OF AUSTRALIA

COOKE & MORTON [2018] FamCAFC 9

FAMILY LAW – APPEAL – CHILDREN – NATURAL JUSTICE – where the father failed to attend the final trial – where the father failed to file any trial affidavit material or case outline in advance of the trial as he had been ordered to do – where the father’s non-compliance with the orders was wholly unexplained – where the father withdrew his instructions to his legal representatives two working days prior to the commencement of the trial - where the father was in hospital on the day of the final trial – where the trial judge treated correspondence directed to the Court by, or on behalf of, the father as an application to adjourn the trial – where the mother and the Independent Children’s Lawyer opposed any adjournment of the trial and the trial judge proceeded to hear the parenting application in the absence of the father – where the trial judge reserved her decision and a period of three months elapsed before final judgment was delivered – where the father failed to make any application to the Court to reopen the evidence while the judgment remained reserved despite being advised by the Independent Children’s Lawyer to obtain legal advice – where the father did not make an application pursuant to the relevant Federal Circuit Court rule to seek to have the orders made set aside by reason of his absence – where there were very serious allegations of coercive and controlling family violence made against the father – where there was expert evidence that the continuation of the proceedings may have a deleterious effect upon the mother and child – where the expert evidence established that the mother and child were in a state of terror at the prospect of encountering the father during family report interviews – the nature of parenting proceedings – where in the particular circumstances of this case, there was no relevant denial of natural justice – where, even if there was any departure, it could not be concluded that a trial involving the father cross-examining witnesses and making submissions could have produced a different result – where it is the particular confluence of circumstances in this case which render the conclusion that there was no relevant denial of natural justice – where the appeal is dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the father sought to adduce medical records to establish that he was in hospital at the time of the final trial – where that fact was not in dispute – where the mother contended that the father obtained admission to hospital on his own self-reporting and that it was a disputed fact, on the medical evidence sought to be adduced, that the father was medically unfit to attend the trial – where the application is refused.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Aldridge & Keaton