Cooke & Morton

The case of Cooke & Morton involved a parenting dispute where the father, the appellant, did not attend the final trial. The mother, the respondent, and the Independent Children’s Lawyer opposed any adjournment of the trial. The trial judge proceeded to hear the parenting application in the absence of the father. The father did not file any trial affidavit material or case outline as ordered, and his non-compliance was unexplained. The father withdrew his instructions to his legal representatives two working days before the trial. He was in hospital on the day of the final trial. The trial judge treated correspondence directed to the Court by, or on behalf of, the father as an application to adjourn the trial. There were serious allegations of coercive and controlling family violence made against the father.

The legal issues in the appeal were whether the father’s absence denied him natural justice and whether the father was medically unfit to attend the trial. The court found that there was no relevant denial of natural justice and that 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. The court also found that the fact that the father was in hospital on the day of the final trial was not in dispute, 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. The application in an appeal filed by the father to adduce medical records to establish that he was in hospital at the time of the final trial was dismissed.

The appeal was dismissed, and the father was ordered to pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,521 and the costs of the respondent mother of and incidental to the appeal on a party and party basis. The form of the order was subject to the entry of the order in the Court’s records.