Cuddy & Miller

[2008] FamCA 1244

FAMILY COURT OF AUSTRALIA

CUDDY & MILLER [2008] FamCA 1244

FAMILY LAW – CHILDREN – with whom a child should spend time – no appearance by the father – where mother and ICL seek father’s application be dismissed – where father’s counsel do not know father’s whereabouts – father has been on notice of the hearing for some time – father’s application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Cuddy

RESPONDENT: Ms Miller

INDEPENDENT CHILDREN’S LAWYER: Ashley Kent

FILE NUMBER: ADF 1326 of 2005

DATE DELIVERED: 17 December 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 17 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lindsay

SOLICITOR FOR THE APPLICANT: Adelaide Family Law

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Dixon Gallasch

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Crocker

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Mr Kent

Orders

1. That the Application for Final Orders filed by the father on 31 August 2005 and his Amended Application for Final Orders filed on 10 January 2008 be dismissed and removed from the active pending cases list.

2. That the question of the mother’s costs thrown away be adjourned to 9:45am on 3 February 2009.

3. That the order appointing the Independent Children’s Lawyer be discharged.

4. That the subpoena issued on 3 December 2008 to Dr S be set aside.

IT IS NOTED that publication of this judgment under the pseudonym Cuddy and Miller is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1326 of 2005

MR CUDDY

Applicant

And

MS MILLEr

Respondent

EX TEMPORE REASONS

1. This is a matter that was listed to commence as a trial before me today, and proceed for four days.  However, when the matter was called on this morning the father, who is the applicant in the case, did not appear although his counsel did appear.  I was told by his counsel that the father had not responded to requests for instructions and in particular instructions as to an affidavit which had been provided to him and which the other side were intending to seek leave to file.  He was due to meet his counsel before court today but he did not show up.

2. The father’s counsel informed me that her instructor had at that time made every effort that she could think of to locate her client, but without success.  He could not be contacted by telephone and there was no indication of where he might be.  On that basis an application to adjourn was made on behalf of the father to 2.15pm today, to see if the father could be located.  At that time Mr Richards, who appears for the mother, made an application that the father's application be dismissed.  Mr Crocker, who appears for the Independent Children's Lawyer, indicated that his instructions generally were to support that application for dismissal, but he did not oppose an adjournment to 2:15pm.

3. The matter has now been called on again at 2.15pm and the father has not appeared.  His counsel is none the wiser as to his whereabouts or what the problem is in terms of his failure to attend.  However, his counsel has informed me that during the period of the adjournment her instructing solicitor's secretary was able to contact the father’s son, who apparently told her that the father had moved house yesterday, and he was requested to locate his father and advise him that the matter was adjourned to 2.15pm today and that it was essential that he attend, otherwise his application may be dismissed.

4. Mrs Lindsay has not heard anything further from either her instructing solicitor, or the father’s son, or the father himself, and we are still none the wiser as to the whereabouts of the father or why he has not attended. 

5. Mrs Lindsay has then made an application to adjourn this matter out of the list, but that application is opposed by both the mother and the Independent Children's Lawyer.  In turn, the mother through her counsel has now made an application to dismiss the application of the father and adjourn the question of costs to a date in the future.  That application is supported by the Independent Children's Lawyer.

6. I need to just dwell on the history of this matter.  It commenced in this court on 31 August 2005 when the father filed an application seeking orders in relation to the child of this relationship, and in particular that he have contact, as it was then called.

7. The mother filed a response to that application on 22 September 2005, in which she sought orders that there be a paternity test with the cost of that test to be borne by the applicant.  There was a paternity test, which failed to exclude the applicant from being the biological father of the child.  As a result of that orders were made for contact, but those orders were ultimately stayed and suspended, and that remains the case today.  Eventually the matter was listed for trial before me, to commence on 28 July 2008. 

8. Pursuant to an order of this Court there had been a report prepared by a Family Consultant, Dr S, and that was provided on 5 June 2006.  There was then an order made for an updated report, and that was attended to by Dr S, with that being dated 10 December 2007.  The father did not attend the interviews set up for the purpose of completing that updated report.  As I recall from my reading of this file the father subsequently indicated that he was suffering from depression and it was for that reason, and some others, which he explained to this court, that he failed to attend the relevant appointments.

9. In July 2008 an application was made to adjourn the trial because the father, either the night before or certainly within a day or two previously of that date, had been assaulted by an unknown assailant or assailants, and his condition was such that he was unable to give evidence.  I adjourned the matter to enable medical reports to be obtained about that and ultimately there was a medical report provided.  I was satisfied that the trial simply could not proceed for that reason, namely, the husband's injuries and his inability to give evidence.

10. The case was adjourned out of that list and initially I adjourned it to 4 September to ascertain its readiness for trial, particularly of course in relation to the father's injuries and also to address any outstanding issues of preparation because, as I recall, also, there was an issue about a subpoena that had been issued to the South Australian Police.  There was also an affidavit that had been filed at the last minute, which there was concern about. Thus there were various procedural matters which needed attention before the matter could be relisted. 

11. On 4 September 2008, the matter was called on again and the issue of subpoenas was addressed.  I gave leave to the mother to file and serve an affidavit annexing an updated report of a psychiatrist, Dr D, and I gave leave to the father to file an affidavit in response to that very late affidavit that I have just referred to of the mother's, and I listed the matter to commence as a trial at 10 am on 17 December 2008, with a time estimate of four days.  However, given the history of the matter and wanting to ensure that those trial dates were not lost and the matter was absolutely ready to proceed, I further adjourned consideration of the matter to 7 November 2008. 

12. On 7 November 2008 I was told by both counsel and the Independent Children's Lawyer that there were no outstanding issues at that point, all affidavits had been filed, all subpoenas issued and all relevant orders made.  The only issue that needed to be addressed was ensuring the attendance of Dr S, who was required for cross‑examination. 

13. I will not go into the detail of this issue because it does not impact on what has now happened in this case insofar as the failure of the father to attend, but, in the end result, I made orders on that day giving leave to the parties to file updated case outlines by 12 December 2008.

14. The matter was listed before me next on 3 December 2008 for a directions hearing.  This was arranged administratively by the Independent Children's Lawyer because a difficulty had arisen in relation to Dr S, namely, she was now indicating that she was unavailable to give evidence at the time the trial was listed. 

15. I will not detail all that occurred in relation to that.  The end result was that on that day I made an order giving leave to the Independent Children's Lawyer to issue a subpoena to Dr S to give evidence, returnable on the fourth day of this anticipated hearing, namely, 22 December 2008.

16. I mention that nothing was said to me by either party, and particularly by the father's counsel, of any other problems or any suggestion that the father may not be able to attend, or that there were any difficulties in relation to the matter proceeding, on 17 December 2008.  Nothing has happened on the file since then in terms of any further Court hearings.

17. The other matter that I mention, is that the mother has not been on legal aid for the entirety of the time that these proceedings have been in this court, namely, back to 2005.  Looking at the file, I can say without fear of contradiction that the mother would have been put to significant costs in that time in meeting the application that is before the court by the father.

18. Obviously one party, through his counsel, seeks an adjournment whilst the other party seeks, through her counsel, a dismissal.  In my view this matter should be dismissed.  The father has had ample opportunity to attend and pursue his application.  He has been on notice of the hearing commencing today for some time, although I do not think he physically attended the hearings that I have just identified, but certainly he has been represented on all occasions by his solicitor

19. It is also apparent from what his counsel Mrs Lindsay tells me that, relatively recently, the father was provided with a copy of the affidavit that was going to be the subject of an application today for leave to file.

20. Nothing has been heard from him, and in those circumstances I do not consider it appropriate to adjourn the matter.  This matter needs finality.

21. It may be unfortunate that this is how the proceedings have to end, but of course I do not know what would have transpired if the trial had taken place and what I would have made of the evidence and what order I would have made, and I do not want to speculate on that.  The mother's position has always been that she sought dismissal of the father's application and he has been on notice of that. 

22. I also place great weight on the position of the Independent Children's Lawyer and note that the application to dismiss the father's application is supported by the Independent Children's Lawyer, I assume for similar reasons put to me by Mr Richards in support of his client's case but also, perhaps, similar to the reasons that I delivered in reaching this decision.

23. Mr Richards has also made an application for costs and asks for that application to be adjourned for a month or two.  In that time his instructors will consider whether they wish to pursue that application.  If they do not, then obviously that date can be vacated.  The Independent Children's Lawyer does not seek any order for costs.

I certify that the preceding 23 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 17 December 2008.

Associate