Creighton & Creighton

[2022] FedCFamC1F 662

Federal Circuit and Family Court of Australia

(DIVISION 1)

Creighton & Creighton [2022] FedCFamC1F 662

File number(s):	MLC 6907 of 2019
Judgment of:	JOHNS J
Date of judgment:	31 August 2022
Catchwords:	FAMILY LAW – PROCEDURE – adjournment – final day of hearing – where the husband has left the court precincts during the running of the trial – where the husband has become uncontactable – where the husband claims his absence to be due to illness – where the husband’s conduct has necessitated an adjournment of the proceedings – where the husband must attend court at the adjourned date and produce a medical certificate to evidence his claims – where costs thrown away be reserved
Legislation:	Family Law Act 1975 (Cth) s 102NA
Division:	Division 1 First Instance
Number of paragraphs:	21
Date of hearing:	31 August 2022
Place:	Melbourne
The Applicant:	Litigant in Person
Counsel for the Respondent:	Ms Vohra SC
Solicitor for the Respondent:	Taussig Cherrie Fildes
Counsel for the Independent Children's Lawyer:	Mr De Vries
Solicitor for the Independent Children's Lawyer:	VM Family Lawyers

ORDERS

MLC 6907 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CREIGHTON

Applicant

AND:

MS CREIGHTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JOHNS J
DATE OF ORDER:	31 AUGUST 2022

THE COURT ORDERS THAT:

1.These proceedings be adjourned part heard to 10:00am 1 September 2022.

2.The husband:

(a)personally appear at the Melbourne Registry of the Federal Circuit and Family Court of Australia at 10:00am on 1 September 2022; and

(b)provide to the court a medical certificate explaining his absence and inability to attend court personally or via Microsoft teams or by telephone from midday this day.

3.The wife have leave to file and serve an updated minute of proposed orders she seeks with respect to parenting issues.

4.The Independent Children’s Lawyer have leave to amend the minute of proposed parenting orders sought insofar as paragraph 9(e) of the revised parenting orders proposed (Exhibit ICL2) be deleted.

5.Service of this order and the minute of amended parenting orders sought by the wife be effected by the wife’s legal practitioner sending a copy of same to the husband at his email address being ...

6.The wife’s costs and the Independent Children’s Lawyers costs be reserved.

IT IS DIRECTED THAT:

7.If the husband does not attend at Court pursuant to order 2(a), the matter will proceed in his absence.

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 Creighton & Creighton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. The matter of Creighton is before the court today, being the third day of the listed final hearing in relation to both parenting and property matters. 

2. The husband, who is the applicant in the proceedings, has represented himself throughout the course of the final hearing.  The wife is represented by Ms Vohra SC and Mr De Vries of Counsel appears on behalf of the Independent Children's Lawyer. 

3. Notwithstanding an order made pursuant to Section 102NA of the Family Law Act 1975 (Cth) (“the Act”) which entitles him to access to the Commonwealth Scheme to fund his representation through Victoria Legal Aid, the husband has represented himself throughout the course of the proceedings before me, the matter having first been listed in my docket in late 2021.

4. The final hearing was listed pursuant to trial directions made on 10 December 2021.  Those directions included orders requiring the husband to file an amended application for final orders, trial affidavit material and a financial statement.

5. The husband has filed no documents in compliance with those orders.  As a result of those issues of non-compliance, the matter was listed for mention before me on 26 May 2022.  That day, I made further orders extending time for the husband's compliance with the orders previously made.  Notwithstanding that indulgence, the husband again elected not to file any documents in compliance with those orders. 

6. The husband did, for a brief period, have representation through the Commonwealth Scheme which entitles litigants to obtain Legal Aid funding to assist them pursuant to the provisions of Section 102NA. That lawyer withdrew his services and the husband was notified of that withdrawal in late July 2022, some four weeks prior to the commencement of this final hearing.

7. Notwithstanding having a month's notice of that position, the husband has done nothing to secure representation for this final hearing.  Insofar as the property is concerned, it is the wife's contention that the husband has assets valued in excess of $6 million.  The husband's own Notice Disputing Facts dated 31 July 2022 (Exhibit F-3) indicates that, on his version of the world, he holds, or at the time of producing that Notice then held, real property valued at approximately $5.5 million, as well as a number of luxury motor vehicles valued at approximately $600,000.  On the face of that material, the husband certainly has had the financial wherewithal to retain legal representation throughout the course of these proceedings. 

8. At the commencement of the hearing, the husband attended court with an assistant, Ms B, who he advised to be a former employee. Sensibly, in my view, Senior Counsel for the wife and Counsel for the ICL confirmed their agreement to permit Ms B to sit at the bar table and assist the husband in the conduct of the trial, which has occurred over the past two days. 

9. As a result of the Section 102NA order, the husband was not permitted to cross-examine the wife. The wife was cross-examined by counsel for the ICL. Yesterday, two expert witnesses gave evidence. The husband conducted cross-examinations of both of those witnesses, being the Family Report writer, Ms C, and Dr D, a Psychiatrist who had conducted psychiatric assessments of both parties.

10. Yesterday afternoon, closing submissions commenced and at the conclusion of the day the husband was reminded of the procedure that would occur today in terms of closing submissions, including him being reminded of his entitlement to present a closing submission to the Court. 

11. This morning, closing submissions continued.  I heard detailed submissions from Counsel for the ICL.  At approximately 11:35am, at the conclusion of the ICL’s closing submissions, the court adjourned for a mid-morning break.  Prior to that adjournment, I inquired of the husband as to whether he had any queries in relation to the procedure.  He indicated at that time that he was not sure whether he would be in a position to present his closing submissions, given the detail that had been provided by Counsel for the ICL and the multitude of factors he would be required to respond to.  I informed the husband that it was the expectation of the Court that the matter would conclude today and that he would be required to present his closing submissions this day.

12. I reminded him that Ms Vohra SC, who represents the respondent, would next present her closing submissions on behalf of her client and, subject to timing, I would be minded to adjourn the matter for an early lunch to enable him to review his notes prior to having to present his closing submission.  I then adjourned the court. 

13. During the mid-morning adjournment, the husband packed up the material he had brought to court and both he and his assistant, Ms B, left the court building.  When the matter resumed at approximately 12:05pm, I was informed by Senior Counsel for the wife that her instructor had communicated with the husband and Ms B by telephone so as to ascertain their whereabouts and to understand why it was that they were not at court.

14. I am informed by Senior Counsel for the wife that the husband informed her instructor that he had suffered a blood nose, that he had left the city and attended a pharmacy in Suburb E to obtain medication, and that he needed to change his clothing as a result of him suffering a blood nose.  Further inquiries were made as to his capacity to appear electronically to enable the matter to continue.  I understand that the husband indicated his refusal to participate in the continuation of the proceedings electronically; he was not prepared to do so, whether or not the camera was activated. 

15. Upon the resumption of the hearing, further attempts were made by the Court to communicate by telephone with both Mr Creighton and Ms B.  The telephones of both Ms B and the two telephones of Mr Creighton both immediately reverted to voicemail.  As a result, I adjourned the matter over until 2:15pm.  I have caused my Legal Associate to call the husband's name in the court precinct at the resumption of the hearing this afternoon; the husband has not appeared.

16. Again, I have caused my Legal Associate to telephone from Court the phone numbers of Ms B and the two phone numbers of Mr Creighton.  Again, those telephone calls have immediately reverted to voicemail. 

17. In the circumstances, I am asked to make orders adjourning the matter over to tomorrow, being 1 September 2022.  Further, I am asked to make an order that the husband personally attend at the adjourned hearing tomorrow and that he provide a medical certificate to the Court providing an explanation for his absence and inability to attend court personally or via Microsoft Teams this afternoon.  I have been informed of the intention of the wife and Counsel for the ICL to seek amendments to their minute of proposed order and have confirmed that leave ought be granted to file such documents.

18. In the circumstances, I will make orders adjourning the matter to tomorrow, granting leave for both the wife and ICL to file a further amended proposed minute and that such orders be served on the husband at his email address this afternoon. 

19. In addition, I am asked to and will make orders reserving the costs thrown away of both the wife and the Independent Children's Lawyer. 

20. The position that the Court is left in this afternoon is most unsatisfactory.  This matter has had a long and difficult course; this is the fourth occasion upon which the matter has been listed for final hearing, the matter having commenced in 2019.  The three children of the marriage have been the subject of the litigation since that time.  I have heard evidence from the Family Report writer as to the profound and harmful effects the conflict between their parents and this litigation has had upon the children.

21. I have been told that each of the children is suffering and has been harmed by this court process.  It is as a result of that evidence that I have formed the view that it is necessary that these proceedings be brought to a conclusion, and it is on that basis that I am satisfied that it is appropriate that orders be made adjourning the matter for further hearing and completion tomorrow.  The husband will be afforded the opportunity to provide closing submissions to the Court.  However, in the event that he elects not to participate, I am satisfied that it is appropriate that an order be made that if he does not attend at Court tomorrow, the matter proceed in his absence.  The husband is on notice that orders may be made in his absence. 

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns.

Associate:

Dated:       31 August 2022