Donnelly and Bryson (No 3)

[2020] FamCA 889

FAMILY COURT OF AUSTRALIA

DONNELLY & BRYSON (NO. 3) [2020] FamCA 889

FAMILY LAW – where final hearing was part heard – where the Department had agreed to join the proceedings at that point – where the Mother absented herself during the proceedings – where the Mother’s representation sought to withdraw – where caseworkers attended the Mother’s residence and served orders requiring her to attend via telephone – where there has been difficulty contacting the Mother – where the Mother has not attended – where the Mother had adequate notice of the proceedings – where the option to apply for orders to be set aside remains – hearing continued undefended.

Family Law Acts 1975 (Cth)

Family Law Rules 2004 (Cth) rr 1.04, 11.02, 16.07

APPLICANT: Mr Donnelly

RESPONDENT: Ms Bryson

INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

FILE NUMBER: CAC 1351 of 2019

DATE DELIVERED: 13 October 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: KPW Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Evans Family Lawyers

Orders

1. I direct that the trial will continue in the Mother's absence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Donnelly & Bryson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1351 of 2019

Mr Donnelly

Applicant

And

Ms Bryson

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The current status of these proceedings is that four days of final trial were conducted in February of this year, at which point the Department indicated that it would join the proceedings and the proceedings were adjourned for further hearing.  Those adjourned proceedings were relisted for a further three days of trial to commence yesterday, 12 October 2020. 

2. Those proceedings were conducted with the Mother appearing by video link in the company of her solicitor.  The Mother had previously been a recipient of directions that permitted her to attend by video link, but only as long as she did so in the company of her solicitor. 

3. Following the lunch break yesterday, the Mother was no longer present on the video link.  Her solicitor advised that she had left the venue that he was at and the solicitor through counsel sought to withdraw from the proceedings.  Both the solicitor and counsel were given leave to withdraw on the basis that they asserted both a lack of instructions and that to continue to act would be in breach of the Solicitors’ Conduct Rules for the solicitor.  The Mother made no subsequent contact with the Court.

4. Orders were then made that afternoon directing the Mother to attend this morning by telephone link, noting that the proceedings have been conducted in the Canberra Registry of the Family Court of Australia and the Mother is a resident of E Region in country New South Wales.  Those orders directed that the Mother was to join via a free call telephone number. 

5. The Department assisted in the conduct of the matter by having two caseworkers attend upon the Mother's residence with those orders as to the manner of the Mother’s attendance in Court today.  Evidence has been given by Ms F, one of the caseworkers, of her attendance yesterday upon the Mother at her home address with another caseworker, Ms G.  The caseworkers attended on the Mother's home address on two occasions yesterday, firstly at 3pm and then at 4.10 pm.  At 4:10 pm, they delivered a copy of the Court orders to the Mother.  They were, on the first occasion, unable to attract the Mother's attention insofar as there was no answer to the door when they knocked.  On the second occasion the same results ensued from their knocking on the door; however, on sliding the Court orders underneath the door, the Mother opened the door and greeted the caseworkers.  The caseworkers told the Mother that it was necessary for her to call the number recorded on the documents that had been delivered to her this morning in order to participate further in the Court proceedings.  The Mother has not done so. 

6. The caseworker also gave evidence that she had received communication from the maternal grandmother, indicating that she was having difficulties getting in contact with the Mother, that the Mother had been admitted to hospital the previous evening, but had subsequently left the hospital in the early hours of the morning.  The caseworker also noted that the Mother has previously had difficulties due to a lack of credit on her telephone.

7. The Independent Children’s Lawyer advised the Court that she has made a number of attempts to contact the Mother and received in response a voicemail from the maternal grandmother, claiming a lack of call credit in an inability to speak to the Independent Children's Lawyer. 

8. The upshot is that, although orders were made that directed the Mother to appear by telephone at 10 am this morning, she has not done so, and although the telephone line has remained open for that purpose as at approximately 11:25 am, the Mother has still not made any contact with the Court.  It should also be noted that the caseworkers provided the Mother's mobile number to the Court and a call was placed to the Mother on that number from the Courtroom.  There was no answer and a message was left for the Mother directing her to call the number as recorded on the Court orders that had been served upon her.

9. The issue now arises as to the proper ongoing conduct of the proceedings.  Two rules in particular appear to have application.  First is rule 11.02, which deals with the ability of the Court to conduct hearings on an undefended basis where there has been a non-compliance with the relevant rules, regulations or directions.

10. Further, there is rule 16.07, which deals with the failure of a party to attend at the first day of trial.  In this case, I am satisfied that the Mother is on notice of the proceedings.  She has participated for the first five days of those proceedings until halfway through the fifth day, participating yesterday by video link.  She has now ceased to participate in the proceedings.  She has been given further opportunity to participate by telephoning the Court today, but has not done so.  In my view, she has been accorded procedural fairness in terms of being on notice of the proceedings and been given an opportunity to participate in those proceedings. 

11. In determining how to procedurally deal with the matter, I am obliged to consider the main purpose of the rules as set out at rule 1.04.  That Rule is in the following terms:

    The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

12. It may be observed that this matter has been set down for completion for some months.  Further, there are serious issues to be dealt with in terms of the welfare of each of the children.  An adequate opportunity to participate has been given to the Mother.  Evidence has been prepared both by the Mother and by the other parties in order to bring the matter to completion.  It is in that context that the Mother has withdrawn her participation in the proceedings.  In compliance with the obligations set down at rule 1.04 in the context of those matters, the proceedings should continue in the Mother's absence to determine the best interests of the children. 

13. I observe that there is a safety net in doing so as a party is entitled to apply to have orders set aside where they are made in that party's absence.  The Mother will have an entitlement to make such an application in this case.

14. The question then arises as to the manner of the completion of the proceedings.  As I have observed, there have been five days of evidence and of the testing of that evidence.  The determination of the best interests of each of the four children will take place in the context of that evidence, despite the withdrawal of the Mother.  It will be incumbent upon the party seeking orders to be made to satisfy the Court that those orders are in the best interests of the children.  So, despite the non-involvement of the Mother, the proceedings will not continue in the sense of a hearing that ignores any evidence that has already been called by the Mother.  I direct that the trial will continue in the Mother's absence.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 October 2020.

Associate: 

Date:  21 October 2020