Edmonds and Whyte and Anor

[2017] FCCA 2733

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDMONDS & WHYTE & ANOR [2017] FCCA 2733

Catchwords:
FAMILY LAW – Ruling on application to reinstate a proceeding finalised in the absence of a party.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.05

Aon Risk Services Australia Ltd & Australian National University (2009) 239 CLR 175
Barbey & Tuttle [2013] FamCAFC 44
Clifford & Mountford [2006] FMCAfam 450
Malak & Malak [2016] FamCAFC 114

Applicant: MR EDMONDS

First Respondent: MS WHYTE

Second Respondent: MS MCGEE

File Number: MLC 4655 of 2015

Judgment of: Judge Burchardt

Hearing date: 23 October 2017

Date of Last Submission: 23 October 2017

Delivered at: Melbourne

Delivered on: 13 November 2017

REPRESENTATION

Counsel for the Applicant: Mr Kanarev

Solicitors for the Applicant: Tyler Tipping & Woods

Counsel for the First Respondent: Ms Whyte, In Person

Counsel for the Second Respondent: Ms McGee, In Person

Counsel for the Independent Children’s Lawyer: Ms Thompson

Solicitors for the Independent Children’s Lawyer: Clark Family Lawyers

ORDERS

1. The Application in a Case dated 20 September 2017 made pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 to set aside orders made in the absence of the father be granted.

2. The matter be adjourned to 22 January 2018 at 10.00 am in Melbourne for final hearing (with an estimated hearing time of three days).

3. The child X born (omitted) 2012 (“X”) attend upon a forensic paediatric psychiatrist for the purposes of an assessment and report, AND IT IS REQUESTED that Victoria Legal Aid provide funding for such.

4. The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

5. Paragraph 6 of the Orders made 31 July 2017 be discharged.

6. The parties do all acts and things and sign all the necessary documents to file an Application for supervised time at Family Life in (omitted).

7. The Father shall abide by all lawful directions imposed by the said contact centre and in the event that the Father defaults in attending to supervised time periods the Respondents have liberty to apply to seek a no time spent period.

8. The child X born on (omitted) 2012 attend upon a forensic paediatric psychiatrist for the purposes of an assessment and report with reference to:

   (a)The child’s history (including medical history);

   (b)Whether the child suffers with a psychiatric disorder or personality disorder;

   (c)Whether the child’s illness is related to the father’s time spent period or lack thereof;

   (d)Such further and other matters that are relevant to the welfare of the child.

9. The costs of the report referred to in paragraph 4 herein be borne by the Independent Children’s Lawyer AND IT IS REQUESTED that Victoria Legal Aid providing funding.

10. The Father file and serve an Affidavit by 20 November 2017 setting out the reasons why he missed supervised spend time periods in the last proceedings.

11. The Respondents file and serve a Response and any further Affidavits by 4 December 2017.

AND THE COURT NOTES THAT:

A.The children X and Y have not spent time with the Father since 25 June 2017.

B.The child X is under the care of Early Learning Mental Health Services and is being treated for anxiety and has been prescribed medication for such a condition.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Edmonds & Whyte & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 4655 of 2015

MR EDMONDS

Applicant

And

MS WHYTE

First Respondent

MS MCGEE

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an application in a case filed 29 September 2017, the father, Mr Edmonds, seeks to set aside orders made by the Court in his absence on 31 July 2017. This application, although it does not state so in terms, is clearly in substance an application made pursuant to rule 16.05 of the Court’s Rules.

2. For the reasons that follow, and not without considerable hesitation, I am going to grant the application, which is opposed by all the other parties including the Independent Children’s Lawyer.

The Test To Be Applied

1. Rule 16.05 has been authoritatively considered relatively recently twice by the Full Court of the Family Court. In Barbey & Tuttle [2013] FamCAFC 44, the Full Court (in the leading judgment of May J, with whom Murphy and Kent JJ agreed) noted at [33] - [35] that orders were made in default of appearance by the wife who had “failed to participate at all in the proceedings”.  In so failing, she put the husband to significantly more than his reasonable share of expense and trouble to comply with consent orders aimed at resolving the property dispute.

2. At [48], the Full Court said:

   His Honour began by stating the rule, and quoted from the case of Clifford & Mountford [2006] FMCAfam 450 as authority for the “usual, but not exclusive considerations” for an application under r. 16.05(2)(a) (at paragraph 5):

   34.  From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r. 16.05(2)(a):

   (a) The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.

   (b) There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under rule 16.05(2)(a), namely:

   i) a reasonable explanation for the applicant’s absence at the trial or hearing;

   ii) material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside;  and

   iii) no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the court.

   (b) Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:

   i) Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;

   ii) delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;

   iii) the conduct of the applicant since the judgment or order sought to be set aside was made. 

3. At [54], when dealing with the question of reasonable excuse for non‑attendance, the Court said:

   Of course, absence of reasonable excuse may not be fatal to an application to set aside orders, especially where it can be demonstrated that there has been a miscarriage of justice.

4. Having noted that in the particular case the Court the subject of appeal had found that costs could never restore the husband to the position he was previously in and the prejudice would be great, the Court noted at [57] the appealed Court’s reference to Aon Risk Services Australia Ltd & Australian National University (2009) 239 CLR 175, page 182, “in particular the requirement to take into account the efficient use of courts as publicly funded resources, and the need to maintain public confidence in the judicial system”.

5. At [71], the Full Court said:

   There must also be firmly kept in mind the High Court’s statements about the public interest in court efficiency in Aon Risk Services Ltd, to which the Federal Magistrate in his reasons for judgment referred.

6. I note that at [82], the Full Court noted in an extract from transcript that the Federal Magistrate had opined that a hearing might lead to a different result. 

7. At [90], the Court recorded its conclusions as follows:

   The discretion to set aside orders made in default of a party’s appearance is unfettered.  Regard should be given to the explanation for a failure to appear, the possibility of a different result, and prejudice to the other party (and how this may be addressed).  His Honour did consider each of these matters, and did not err in his approach.  He was not bound to give one matter more weight than another, and was correspondingly entitled to place significant weight on the wife’s failure to establish a reasonable explanation for her failure to appear or to participate in the proceedings.

8. In Malak & Malak [2016] FamCAFC 114, the Full Court of the Family Court revisited the matter again. In that case, orders had been made in the Court below on 29 June 2012, and the application in a case seeking to set those orders aside was filed on 20 July 2012 (see [35] and [37]).

9. At [57], the Full Court quoted from Barbey & Tuttle, noting the judgment of May J, and repeated the extracts I have already set out. It is clear that the judgment of the Full Court at [57] - [61] fully endorsed the passages I have already quoted in the judgments of the Federal Magistrate and the Full Court in Barbey & Tuttle. 

The Course of Proceedings in This Court

1. The original application in this case was filed as long ago as 25 May 2015 by the maternal grandmother.  She sought that the two children with whom the case is concerned, Y, born (omitted) 2010, and X, born (omitted) 2012, be restored to the care of their mother.  I note that the application itself denotes earlier litigation between the parties, which is not part of this file.

2. Relevantly, the father filed his response on 10 September 2015.  His affidavit filed contemporaneously noted that he sought the children to live with him in the long term and deposed at paragraph 3:

   I appreciate all that the Applicant has done for Y and X.  However, I have managed to improve my lifestyle and create a new life for myself and family over recent months and years.  I submit that it would be in the best interests of the children to now re‑establish a relationship with me and for them to eventually live with me.

3. The affidavit noted that the children were living at that time with the applicant grandmother and noted further children:  A, born (omitted) 2013, and a stepchild, B, born (omitted) 2008.  These two children are the biological children of his partner, Ms S.  They were then living in Western Australia.

4. The affidavit deposed that in 2011 the father served about 12 months in jail and to proceedings in 2012 between him and Ms McGee, the mother of Y and X.  The affidavit indicated that following final orders in February 2013 placing the children eventually back in Ms McGee’s care, the father started serving a jail time for assault‑related offences, which lasted from February 2013 to May 2013. 

5. The father rarely saw the children thereafter and relocated to Western Australia in February 2014 for work and to make a new start.

6. The father deposed that he had only become aware of the current court application in June 2015.

7. He deposed to having not spent a lot of time with the boys over the previous two years and indicated an intention to relocate to Victoria to re‑establish a relationship with Y and X.

8. In his next affidavit, filed 23 November 2015, the father deposed to having relocated to Victoria.  He deposed at paragraph 3:

   I am aware that the presiding Judge in these proceedings is concerned that my application will not be adequately supported and may have limited success moving forward.  I have however relocated to Victoria and have made significant life changes which have put me in a position for my application to be realistically considered by the Court.

9. The affidavit went on to assert that he had addressed his issues with drugs or alcohol and undergone mental health assessment and was in full‑time work.

10. The father’s next affidavit, filed 26 April 2016, noted that the father had taken steps to progress his case, including conducting an intake interview on 4 April 2016 in (omitted) with the children’s contact service.  Beyond that, the affidavit does not take the matter farther.

11. Contemporaneously with his affidavit, his partner Ms S filed an affidavit.  This details what she describes as “an unpleasant childhood” (paragraph 2).  She was herself charged with numerous violent offences which led to a custodial sentence for four months in 2012 (paragraph 12).

12. The affidavit otherwise detailed the relocation to Western Australia and the return.

13. In the interim, a report was received from the Department of Health and Human Services which noted, relevantly, that the children were in stable circumstances with the grandmother and had been so for some nine months.

14. By his further affidavit filed 8 August 2016, the father relevantly observed that he was still anxious, as was his partner, to see the children and confirmed that he was still seeking for the children to live with him.

15. On 12 August 2016, Ms McGee filed an application in a case seeking summary dismissal of the father’s application.  The affidavit in support asserted non‑compliance by the father with his obligation to prosecute his case properly.  More particularly, the mother annexed as M2 an email from the Independent Children’s Lawyer to her own solicitors detailing the father’s abusive remarks to the contact centre and those also of his partner.  The email suggested that the “the service adopted the view that the father was a security risk and had an anger management problem, they should seriously reconsider the eligibility of the family for the service”.

16. The father addressed this affidavit by his own affidavit filed on 15 September 2016.  He suggested at paragraph 6 that he had had a misunderstanding with an intake worker at Family Life contact centre.  Relevantly, he asserted (paragraphs 6-7):

    It was after these three phone calls that the intake worker threatened to close our file.  I was obviously quite upset by this and reacted inappropriately by arguing with her. 

    I apologised to this intake worker soon afterwards, who agreed to keep our file open.

17. The father asserted that he had been properly involved in the case and taken such steps as were necessary.

18. On 22 December 2016, the maternal grandmother filed an affidavit.  Relevantly, in relation to the father, at paragraph 13, she deposed:

    The Father’s re-introduction process has been in progress now for some months.  Thus far I have met with the counsellors in (omitted) on two occasions.  The children have also met with the counsellor in (omitted) on two occasions to establish their desire to meet their father.  It has been proposed that the children are now ready to be introduced to their father.  I recently met with the counsellors at the contact centre, who have advised that reintroduction will begin in the coming weeks.

19. On 27 July 2017, the grandmother filed a further affidavit.  At paragraph 6 and following, she disagreed with the time proposed by the father on the grounds that:

    a.Lack of commitment to the reintroduction process as demonstrated in the Family Life contact centre report;

    b.Mr Edmonds, to date has spent a total of 14 hours supervised contact with the children between 8th January 2017 to 23rd July 2017.  Since 19th March 2017, Mr Edmonds has spent a total of 4 hours supervised contact with the children at Family Life Contact Centre.  The only other time spent has been the 30 minutes during the family report session.

    I propose that time spent periods between Mr Edmonds and the children remain at the Family Life Contact Centre for a further three months. 

    At the completion of consistent time‑spent periods at the contact centre, I propose that an additional six months supervised access is granted during which I will be present.  This time spent period is to occur every 3 weeks for a period of 4 hours. 

    At this stage the children have not been introduced to the extended family of Mr Edmonds and Ms S.  To facilitate this introduction I would be seeking the support of the children’s psychologist to aid in the emotional management of this difficult change. 

    In order to encourage and strengthen the relationship between Mr Edmonds and the children I propose that Mr Edmonds have a weekly telephone call with the children on a Wednesday night at 6 pm. 

20. The affidavit also referred to inconsistent behaviours by the children at school and treatment that the children were undergoing.  It also relevantly sought sole parental responsibility and finally noted, relevantly, that the father was behind in his child support payments and had not paid any since the cessation of Centrelink payments and the commencement of his apprenticeship.

21. The next court event relevant for these purposes was that on 19 July 2017, the solicitors for the father filed a notice of withdrawal.  I have been informed in the currency of proceedings that this was because they were unable to obtain instructions.

22. On 25 July 2017, Family Life Australia provided a family report to the Court.  It noted that there had been a schedule of 14 visits, of which two had been cancelled by the grandmother and four by the father and one by a combination of the centre itself and the father.  At page 16, the following extracts are relevant:

    The workers noted that Mr Edmonds failed to follow their directions at times. 

    The Service is concerned with regards to Mr Edmonds’ consistency in attending the visits, as he attended only 3 supervised visits in the last 5 months.  Mr Edmonds attended for the first 4scheduled visits, however, following this he cancelled 3 out of 5 scheduled visits, due to being unwell and car difficulties.  Mr Edmonds did not provide the Service with medical certificates. 

    The Service addressed these concerns with Mr Edmonds, advising him that the Service expects the parents to be consistent in attending the Service as it’s in the best interests of the children.  Mr Edmonds attended the next visit, however, did not attend the following two visits:  on the 9th July, when the Service attempted to contact Mr Edmonds to advise that the Service was not open due to staffing issues, they were unable to reach him.  Later Mr Edmonds stated that he was not going to attend this visit.  Mr Edmonds confirmed that he was attending the next scheduled visit on the 23rd July, however he cancelled the visit on the day as he did not “have much work”.

23. The service noted that they could provide a further six visits and would require medical certificates as appropriate.  It should be noted that on pages 15 to 16, the report had, however, previously noted that:

    Overall, the visits went well, the children did not hesitate to come through to see their father, accepted his affection and in some visits were reluctant to leave Mr Edmonds.  The children reported to have a good time at the Service when the workers returned them to Ms Whyte.  Mr Edmonds was often observed to be well engaged with the children, actively participating in play and ensuring their safety.  The children were often observed to laugh and smile at the Service. 

24. The final relevant event for these purposes is the family report dated 15 June 2017. This report, like the Family Life report above, was not formally received as an exhibit as final orders were made by consent. The report noted that the father was seeking that the children live with him. 

25. At paragraph 21, the report noted, having already commented on the father’s long criminal history and significant mental health issues in the past:

    Overall, Ms H believed that Y and X were experiencing significant psychological harm from their trauma history and recommended that their sense of security should be a primary factor in their future care.

26. At paragraph 38, the report noted Y’s personality and noted:

    Y can still sometimes be aggressive at school.  However, this is being addressed both at home and at school.  Ms C and Ms Whyte reported that Y experiences blind rages and his experienced teachers find his behaviours difficult at times.  Ms C explained that X suffers from ADHD and anxiety and, consequently, can be highly disorganised.

1. I note that at paragraph 43, the report recorded:

   The children are also spending time with their father from 1.30pm to 3.30 pm, supervised by a Children’s Contact Service.  Ms Whyte and Ms C were critical of Mr Edmonds for cancelling a visit with the boys reporting that he experienced a workplace accident when his Facebook posts suggested an alternative explanation for his non‑attendance.  Ms C and Ms Whyte believe that the children are currently enjoying their supervised time with their father and enjoy the Children’s Contact Centre and the toys contained there.  Ms Whyte indicated that she would be content for the boys to spend time with their father outside the contact centre now that they have re‑established a relationship with him.

2. At paragraph 48, the report recorded, relevantly:

   Mr Edmonds now seeks to re‑establish his relationship with the children with the ultimate goal of the children living primarily with him. 

3. At paragraphs 82 - 83, the report recorded:

   When the writer asked what the children believe their father wanted, the boys agreed that their father still wanted them to visit him and they stated they enjoy visiting their father. 

   In discussing their time with their mother and father, they indicated that they did not want to change their living arrangements.  X thought that he might cry if he had to live in a new house.  Despite the children not wishing any change to occur, they reinforced that indicated that they wanted to spend a sleepover at their mother’s home again, reinforcing that this was their mother’s wish. 

4. At paragraphs 105 - 106, the report recorded:

   The Department of Health and Human Services file confirms that the children have lived a chaotic lifestyle in the care of each of their parents.  Both parents have engaged in antisocial behaviours and due to their personal issues have been unable to provide adequate safety and stability for the children.

   Furthermore, the psychological assessments of Ms H confirm the social and psychological impact the boys’ early experiences of inadequate care have had upon their long‑term development and their emerging mental health issues.  The children have been diagnosed with anxiety, attention deficit hyperactivity disorder (ADHD), obsessive‑compulsive disorder (OCD) and varying symptoms of trauma, emotional and social difficulties.  Consequently, the children require strict routines and boundaries to maintain their sense of safety and security.

5. The report went on to note at paragraph 107 the more stable environment provided by Ms Whyte and Ms C and concluded:

   Consequently this assessment suggests it remains in the children’s long‑term best interest to remain living in the care of the maternal grandparents and spend time with their parents and half‑siblings.

6. As previously noted, the father did not attend the hearing on 31 July 2017. 

The Procedural History

1. The matter was relevantly listed for hearing for three days commencing on 1 August 2017 on 22 December 2016.  Messrs Tyler, Tipping & Woods were then representing the father.  On 16 March 2017, the matter was the subject of a further mention, and the matter was relevantly adjourned to the Court for final hearing as previously fixed.

2. The Court’s correspondence file shows, however, that on 13 April 2017, an amended notice of listing with the matter to commence on 31 July 2017 was sent, inter alia, to Tyler, Tipping & Woods. It expressly asserted:

   Please note the listing dated 3 August 2017 has been vacated by the Court.  Therefore, the final hearing is listed on 31 July, 1 August and 2 August 2017. 

3. The reference to 3 August was plainly a typographical error.  The notice given to Mr Edmonds by his solicitors (presumably) when they ceased to act has not been produced to the Court.  The Court does not, therefore, know with certainty whether Mr Edmonds was informed or not of the next hearing date when the notice of withdrawal was filed on 19 July 2017. 

4. In any event, the solicitors became re‑engaged in the matter and, as recorded, attended Court on 1 August. 

5. Although it took from 31 July 2017 until 20 September 2017 for the father to lodge his application in a case, the correspondence on the Court file shows a letter of 8 September 2017 from Tyler, Tipping & Woods to the Registrar of this Court in the following terms:

   We refer to our letter of 28 August 2017 enclosing documents for filing. 

   We note that the documents were not accepted and we were advised to file a Notice of Appeal.  We have been advised by the Family Court that our original application in a case was the best way of proceeding.

6. The letter went on to seek an urgent listing.

7. Doing the best one can, it would appear the application may have been filed no later than 28 August 2017, approximately four weeks after the court hearing.

Where does this leave the Applicant against the relevant criteria – Explanation for delay

1. I do not think that the explanation for delay is adequately explained.  As I have indicated above, Mr Edmonds’ solicitors had proper notice of the relisting in April 2017.  No explanation has been given as to why the applicant may not have been given notice of that amendment when his solicitors ceased to act. 

2. Likewise, I do not think that the application has been brought with the kind of speed that one would have expected to see had the matter been as critically important to Mr Edmonds as he might now wish to assert.  I would have expected him to be banging on the Court’s door the day after he became aware of the Court’s orders made against him.  In my view, these are significant matters.

Does the Applicant have an arguable case for the relief sought, that is, a case which is credible, with real prospects of success (See Malak & Malak at [97])

1. This, in the particular circumstances of the case, is, in my view, a critical consideration.  The fact is that the father has sought to reintroduce himself to the children’s lives.  He has, to an extent, succeeded in doing so.  While not devoid of criticism, the materials suggest that the father’s time at the contact centre proceeded at least reasonably well and that the children enjoyed it.  Whether the father has any credible chance of achieving the orders he nominally seeks (namely, that the children ultimately live with him) is very debatable in the face of the materials as they presently stand.  I would not regard this as being a proposition that I would describe as credible, with real prospects of success, at the present time.

2. Nonetheless, the Court cannot ignore the practical outcome that would emerge were the application in a case to be dismissed.  The net effect would be to remove the children’s relationship with their father forever.  The extant orders do not provide for time even as agreed but, rather, specifically prohibit any time at all with the father.  Although counsel for the father put the matter much higher, asserting that the father had looked after the children for some time in the past (a correct assertion but an irrelevant one given the chaotic way in which this time took place) and that the father had an ongoing and good relationship with the children (a matter one must also approach with caution and which involves a measure of hyperbole), the fact is the children do have some sort of a relationship with their father, and to cease it in its entirety now would be a significant matter.

Prejudice to the Other Parties

1. There is, of course, prejudice to the other parties in the event that the application is reinstated.  While Ms Whyte and Ms McGee are self‑represented and there is no actual cost impost, the stress of re‑litigating the matter will, obviously, be a relevant consideration.  The stress of litigation is an identified and relevant consideration.

Conclusion

1. This matter is in some respects finely balanced. The father’s non‑appearance on the original trial date is consistent with his at times feckless behaviour with the family contact centre. There will clearly be prejudice to the other parties in the event that the application is reinstated. It needs to be borne in mind that the discretion is unfettered and must be exercised judicially. Notwithstanding the matters militating against reinstatement, in my view, the proper exercise of the discretion in the particular circumstances of this case, noting the total exclusion of the father that will occur if matters are not further revisited, and the resultant denial of any benefit to the children of a relationship with their father, leads to the conclusion that the application should succeed. The way this matter has developed has been terribly unfortunate, but the matter will have to be relisted and heard as soon as practicable. I will hear from the parties as to what, if any, interim orders should be made.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  13 November 2017