Estrada & Nemes

[2021] FamCA 619

FAMILY COURT OF AUSTRALIA

Estrada & Nemes [2021] FamCA 619

File number(s):

BRC 14181 of 2019

Judgment of:

HOGAN J

Date of judgment:

23 August 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – Where the trial was previously adjourned on the basis of a medical certificate provided by the mother – Where there is doubt that the medical certificate was legitimate – Where the mother is self-represented – Where the mother has failed to take up the opportunity afforded to her by the existence of the Cross-Examination of Parties Scheme – Where the matter is to proceed in the mother’s absence and on an undefended basis. 

Legislation:

Family Law Act 1975 (Cth) s 102NA

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Number of paragraphs:

64

Date of hearing:

23 August 2021

Place:

Brisbane

Counsel for the Applicant:

Mr McGregor

Solicitor for the Applicant:

Evans Brandon Family Lawyers

The Respondent:

No appearance

Counsel for the Independent Children's Lawyer:

Mr Ashcroft

Solicitor for the Independent Children's Lawyer:

Dooley Solicitors

ORDERS

BRC 14181 of 2019

BETWEEN:

MR ESTRADA

Applicant

AND:

MS NEMES

Respondent

INDEPENDENT CHILDEN'S LAWYER

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	23 AUGUST 2021

THE COURT ORDERS THAT GIVEN THE RESPONDENT’S FAILURE TO APPEAR:

1.The final hearing of this matter shall proceed in the Respondent’s 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

HOGAN J:

1. I will deliver some short reasons in support of my decision to hear the matter on an undefended basis and to hear Counsel in support of the presentation of the cases of their respective clients and/or to receive oral evidence so that I can conclude these proceedings.

2. I do so for the following reasons.

3. I have had regard to the history of the matter which I intend, in a moment, to outline briefly. A consideration of that history informs and persuades me that it is in X’s best interests that the trial proceeds today. I have also taken into account the contents of Exhibit 1 received into evidence this morning which contains assertions by the mother that she does not have the capacity to represent herself; that she feels, as consequence of asserted actions by Mr Evans, the father’s solicitor, and the Independent Children’s Lawyer, extremely unsafe; and that she is too scared to represent herself and too scared to leave her home.

4. Those assertions need to be considered, as I have considered them, in the context of earlier actions by the mother in these proceedings – particularly those which precipitated the decision I made on 18 May 2021 to adjourn the trial of the proceedings to today. They also need to take into account, as I have done, the fact that orders have previously been made in this Court which would have provided to the mother the opportunity to obtain legal representation, at no cost, via accessing the Cross-Examination Scheme administered in Queensland by Legal Aid Queensland.

5. I take into account and accept that, on a number of occasions, the mother has failed to appear before me: for example, on 6 August 2021 when I had the matter before me for a compliance check, the mother did not appear. Whilst on that occasion I outlined, for the record, the history of the matter – and I intend to follow the same course today – I do so deliberately so that there can be no doubt by anyone that the mother has been afforded the opportunity to appear in the proceedings and to participate in the same.

6. I undertake that course cognisant of the fact that there remains always on a court an obligation to ensure a fair trial and to ensure and afford to parties, in proceedings before it, procedural fairness. One need have regard only to the comments of Kirby J in Allesch v Maunz[1] (at, in particular, [35]–[36]) where his Honour outlined the obligation on a court:

   35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and to make submissions relevant to such a decision before it is made…

   [1] (2000) 203 CLR 172.

7. One should also have regard, of course, to the comments of Mason J in Kioa v West[2] (at 582) where his Honour expressed what is an uncontentious assertion that:

   It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it…

   (Citations omitted)

   [2] (1985) 159 CLR 550.

8. As authority has subsequently made clear, it is the affording of the opportunity to appear and to participate in proceedings that is the requirement.

9. Given the history that I am about to recount, I have no doubt whatsoever that the mother has been afforded procedural fairness. She has been afforded every opportunity to adduce evidence in the proceeding and to appear this morning, including via legal representation on her behalf.

10. The history is as follows.

11. On 22 November 2019 (at which time, according to the order, both parents were legally represented) Judge Tonkin made orders in the proceedings – which included an order pursuant to s 69ZW directed to the Department of Child Safety, Youth and Women and also to the Queensland Police Service. Her Honour appointed an Independent Children’s Lawyer and transferred the matter to this Court because there were competing allegations of sexual abuse.

12. The matter was before Registrar Brooks in Chambers on 12 December 2019 at which time it was designated Magellan. The orders made on that occasion directed that the mother file and serve a Response to the father’s Initiating Application; any affidavit in support of any interim orders she sought; any Notice of Abuse was to be filed on or before 17 January 2020. Various other orders were made in relation to the Independent Children’s Lawyer. The matter was listed for case management and for Magellan directions before Senior Registrar Spink on 19 March 2020.

13. On 19 March 2020, orders were made by consent by Senior Registrar Spink. On that occasion the Independent Children’s Lawyer appeared, as did the father via legal representation; the mother appeared on her own behalf. Interim parenting orders were made. The Notations bear particular relevance to any assertion, as is made by the mother in Exhibit 1, that she is too scared to represent herself and that, as a consequence of such asserted fear, she has been unable to participate in these proceedings: that is because those Notations included a reference to the existence of a Scheme whereby, in appropriate circumstances, self-represented litigants can obtain legal representation funded by the Commonwealth via a Scheme administered by Legal Aid Queensland.

14. The Family Violence Information Sheet attached to the order made by Senior Registrar Spink on that date informs that unrepresented litigants will be unable to cross-examine another party at a hearing if allegations of family violence are made and a final family violence order applies to the parties. It also informs litigants that those prohibited from cross-examining can either engage private legal practitioners or apply to the Commonwealth Family Violence and

    
    

    Cross-Examination of Parties Scheme, (which I will hereafter refer to as “the Scheme”) to obtain legal representation. That piece of information – namely about the existence of the Scheme and that those unrepresented litigants who fall within the criteria surrounding it – is reiterated so that no one receiving the order made on 19 March 2020 (to which was attached the Information Sheet) could have been left in any doubt as to the existence of the Scheme or the mechanism by which it should be accessed.

15. It is relevant to note that, on 24 March 2020, Senior Registrar Spink made a number of parenting orders which regulated X’s living arrangements, the time that he should spend with his mother and the manner in which they should communicate. The orders made that day included an order for the preparation of a report pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”); the matter was adjourned part-heard. Again, the Notations bear particular relevance because they are the same as made by the Senior Registrar when the matter was before him on 19 March 2020. The order, again, has attached to it the Family Violence Information Sheet which contains the information to which I have already referred.

16. When the matter came before me for the first time on 12 February 2021, all parties were then legally represented. Given the various contentions in the matter and the fact that the substance of the same made it clear that it was only through trial that the various allegations and assertions and counter-assertions could be determined, I listed the matter for final hearing commencing on 30 August 2021 and made further orders and directions in relation to its conduct. The 12 February 2021 order had attached to it, again, the Family Violence Information Sheet. So by that time – that is, 12 February 2021 – three orders issued by this Court had attached to them the Family Violence Information Sheet containing the information to which I have already referred.

17. As a consequence of events beyond the parties’ control, I had the parties before me again on 19 March 2021 at which time I expedited the final hearing of the matter and moved the trial forward to commence on 17 May 2021. On that occasion, all parties were legal represented. I ordered that all parties attend the final hearing in person and I made a number of other parenting orders including, by consent, the suspension of operation of clauses 2 and 3 of the orders made by the Senior Registrar on 24 March 2020 (being the orders which provided for X’s weekend day time only time with his mother). The mother’s consent on that occasion was proffered on the basis that she reserved the right to advance the contention that the father’s actions from about 17 December 2020 were not justified, reasonable and/or amounted to a contravention of the relevant clauses of the 24 March 2020 order. The reference to the father’s actions from 17 December 2020 should be understood, broadly speaking, as being a reference to the father’s decision to move to live in a place different to that in which he had lived with X prior to December 2020 and the consequences that decision had upon X’s opportunity to spend day-time weekend time with the mother in accordance with the 24 March 2020 orders.

18. An order was also made by me, by consent, on 19 March 2021 to provide that X had video-based communications with his mother each Tuesday, Thursday and Sunday using a specified application or telephone and on the premise that no location settings would be activated and X’s whereabouts would not be sought to be disclosed in any call.

19. The necessity for such orders, at least on an interim basis, can be found in the contents of the father’s affidavit which contain allegations which can easily be summarised as being, in essence, that, as a consequence of actions he asserts were likely taken by the mother and her husband Mr B to provide his email address to third parties, he received a deluge of communications from such third parties. Further, as may be found in the affidavits relied on in his case (being the affidavits of his sister and his mother) each of those persons received, as a consequence of information provided to providers of funeral services, a follow-up telephone call seeking to offer their services consequent upon his asserted demise.

20. So the father’s case, clearly at that time and as remains in his affidavit read by Mr McGregor before me today, is that he was the subject of threats and intimidation caused by either the mother or Mr B or each of them acting in concert.

21. It is relevant also to note that, on 19 March 2021, a number of directions were made by consent: relevant to this aspect of these proceedings (namely my consideration of whether to proceed with the matter on an undefended basis and in the mother’s absence) these included a direction that all parties other than the Independent Children’s Lawyer file any affidavit intended to be relied upon by that party by no later than 26 April 2021; the parties were also afforded the opportunity to file any further affidavit material strictly in reply to such affidavits, provided the same was filed and served by no later than 3 May 2021. Included within the directions made by consent was a direction that the parties would not be allowed to rely on any affidavit not filed in compliance without leave of the Court and, importantly, order 37 of those orders – an order which provided that, if a party failed to comply with trial directions then the matter may proceed on an undefended basis on 17 May 2021 and the non-defaulting party would be at liberty to seek orders by default on a final basis on that day.

22. It is clear from regard to the Court record that the mother has not complied with those aspects of the directions made – I emphasise – by consent, which afforded to her the opportunity to file an Amended Response if sought and affidavits (including affidavits in reply if necessary) in relation to the progress of this proceeding.

23. The matter was then before me on 6 May 2021. Again, all parties were, at that time, represented; the purpose of the appearance was by way of pre-trial case management to ensure that the matter was ready to proceed on its allocated hearing dates of 17 May 2021 (noting it had, at that time, been listed for four days commencing on that day). Various Notations recorded matters that were to be put into effect in order to facilitate the matter having its trial on the allocated dates.

24. As a consequence of information conveyed on 6 May 2021 by Ms D (who then appeared for the mother) I had the matter back before on 7 May on which occasion I made an order that, pursuant to s 102NA(1)(c)(iv) of the Act, the requirements of s 102NA(2) of the Act applied to the cross-examination of the father in the proceedings. The Notations made, again, are particularly relevant to any consideration of the mother’s actions. Those Notations repeated the consequences of the application of s 102NA (namely, that parties could not cross-examine the other and that any such cross-examination must be done by legal representatives); they included the information to parties that they are able to apply to the Scheme for the provision of a lawyer by completing an application form available by accessing a particular link – which was itself included in the order.

25. The Notations informed the parties that a copy of the order would be provided to Legal Aid Queensland so as to facilitate the administration by that entity of the Scheme. The Notations also included a respectful request to Legal Aid Queensland to accord any application submitted by the mother for the provision of a legal practitioner under the Scheme significant priority, given that the matter remained listed for final hearing for four days commencing on 17 May 2021; the Court also requested that, in the event that the mother submitted an application to Legal Aid Queensland for the provision of legal representation pursuant to the Scheme, consideration be given to allocating the matter to Ms D – because she was the solicitor who had previously represented the mother. The Court further recorded, via Notation, the information that the matter remained listed for 17 May 2021 and that it was the Court’s intention to hear the matter on the days allocated to it “including in circumstances where the mother fails to appear and refuses to engage in the legal process”.

26. On the fourth occasion, the Family Violence Information Sheet was attached to the order which issued on 7 May 2021. A copy of the order I made on 7 May 2021 was forwarded by the Court to the Scheme contact person at Legal Aid Queensland – so that those within Legal Aid Queensland charged with the responsibility of administering the Scheme received, on the same day it was made, a copy of the order that would enable the mother, upon application to the Scheme, to be considered and have allocated to her by Legal Aid Queensland, legal representation for this proceeding.

27. As a consequence of Court initiated communication with Legal Aid Queensland, the Court received, on 11 May 2021, information that the Scheme administered by Legal Aid Queensland had not received any completed application for the Scheme from either of the parties in the matter. Following further follow-up by an appropriate officer within the Court, the Court was informed, on 13 May 2021, by the Scheme at Legal Aid Queensland that no application pursuant to the Scheme had, at that stage, been received from the parties.

28. On 14 May 2021, the mother sought that the hearing that was to commence on 17 May 2021 be adjourned.

29. When the matter was before me on the first morning of trial – that is, 17 May 2021 – reference to the affidavit filed by the mother in support of her application for an adjournment noted that she had received an email from the Legal Aid Queensland Grants Officer, which appeared, at least on its face, to be likely to be a pro forma generated email response responding to a contact made to the Legal Aid Queensland grants division. It appears apparent, to me at least, that, despite having been informed, including via provision of a link that would have taken her directly to the Scheme, the mother sought, at least on a prima facie basis, to make an application to Legal Aid Queensland generally on 10 May 2021.

30. Whilst the mother’s application and supporting evidence filed on 14 May 2021 was before the Court, it played a much limited role in my consideration of how to deal with the matter on 17 May 2021 because, at 7.56 am on 17 May 2021, the mother emailed the Brisbane Case Coordinator to advise that the matter was listed for trial that morning. The email (which is marked as Exhibit 1 in the proceedings, dated 17 May 2021) also read as follows:

    Matter is listed for trial this morning, I lost consciousness this morning and hit my head I am at the hospital waiting for an mri. I have submitted an application to adjourn, please help me how can I appear this mornin? the hospital won’t let me drive until my mri is done.

    (As per the original)

31. When the matter was called before the Court, the mother did not appear.

32. I informed the legal representatives who appeared on behalf of the father and the Independent Children's Lawyer of the existence of the email received by the Brisbane Case Coordinator earlier that morning; things unfolded as is recorded in the Transcript of that proceeding.

33. Given the contents of the document marked as Exhibit 1 on 17 May 2021, I made a number of orders: namely, that the mother file and serve documentary evidence (such as an admission sheet or a discharge sheet or document or other hospital issued document) from the hospital which she attended on the morning of 17 May 2021 for medical attention; and that, unless she filed a medical certificate outlining that she was physically incapable of attending Court in Brisbane at 10.00 am on 18 May 2021 and which provided details and/or particulars of the incapacity that prevented her attending at Court in Brisbane on 18 May 2021 by 4.30 pm on 17 May 2021, she appear in person at the Brisbane Registry of the Court by no later than 10.00 am on 18 May 2021. I also reserved the father’s costs of and incidental to the appearance on 17 May 2021.

1. The parties were emailed a copy of the order made that morning (17 May 2021) at about 1.23 pm that day.

2. As is apparent from the document which I marked as Exhibit 2 on 18 May 2021, at about 3.20 pm on 17 May 2021, the mother emailed my Associate and the legal representatives in the following terms:

   Dear Parties

   Please see attached, medical certificate received from the hospital.

   I am still here, I have used a scanner on my phone please let me know if it is not clear for you.

   Regards

   Ms Nemes

   (As per the original)

3. The medical certificate attached to that email was marked as Exhibit 3 on 18 May 2021.

4. On the face of that document, it was a document issued by the C Hospital, situated at the corner of E Street and G Street, Suburb F, falling within the Health Department, Queensland Government. It was dated 17 May 2021 and was said to certify that Ms Nemes was unable to work from 17 May 2021 until 22 May 2021 – its terms are:

   Due to Ms Nemes presenting to emergency suffering from a head trauma, caused by dizziness and loss of consciousness, Miss Nemes is unfit to drive for the next 5 days and must remain on bed rest. Miss Nemes is undergoing testing to determine the cause of the loss of consciousness.

   Miss Nemes will be moved into a ward until she is more stable, and test results come back clear.

   Sincerely,

   Consulting Doctor C Hospital

   C Hospital Emergency Department

   (As per the original) (Emphasis in original)

5. The medical certificate also bears a handwritten signature.

6. Exhibit 4 of 18 May 2021 is an email from the mother sent at 9.02 pm to my Associate and to the legal representatives in the following terms:

   Dear Parties,

   I am still in the hospital, the nurse is going to ask the Doctor for another medical certificate to state that I am still here.

   Regards

   Ms Nemes

   (As per the original)

7. On 18 May 2021, faced with the information which I have deliberately recounted in these Reasons delivered orally, I determined that the only course available to the Court was to adjourn the proceeding for further hearing. I made an order reserving the father’s costs thrown away by the adjournment.

8. I determined to adjourn the matter in the face of opposition by Mr McGregor of Counsel who appeared on behalf of the father; whilst that opposition was, perhaps, more stridently maintained on 17 May 2021 than it was on 18 May 2021, there is no doubt whatsoever that in acceding to the reality of the likely adjournment, Mr McGregor was doing no more than accepting, on behalf of the father, the truthfulness of the contents of the documents provided by the mother and the truthfulness of the contents of the email communication and correspondence to which I have already referred.

9. Nothing in the submissions made by Mr McGregor on either 17 May 2021 or 18 May 2021 could be regarded as accepting that the detriment that was clearly occasioned to his client as a consequence of the decision to adjourn the proceedings for further trial to today was caused by anything other than the contents of those communications and the contents of the medical certificate proffered by the mother – on the basis that the same had been issued by members of staff at the C Hospital.

10. In determining to adjourn the proceedings, I proceeded on that same basis: that is, I accepted the truthfulness and accuracy of the contents of not only the mother’s email communication but also, importantly, the contents of the medical certificate which purported to have been issued by the C Hospital. I did so because, obviously, there was no contrary information to place the contents of the same into question. But for the existence of the medical certificate, combined with the contents of the email communication forwarded by the mother to the Court, I would have been unlikely to have acceded to an application to adjourn the proceedings – given that I had listed it before myself for trial from a duty list and, thus, accorded it priority; and, given that I had attempted to bring it forward from its first allocated August hearing dates to dates which became available in May 2021. That is, I accorded it priority over and above other matters in my list because it seemed to me, on a consideration of the evidence proffered by the parties at that time, that, as I have said, a trial was the only way in which I could be in a position to arrive at and make findings of fact given the very disparate accounts of various events provided by each of the parties in this particular proceeding.

11. On 18 May 2021, I also made directions that the mother file and serve any affidavit material intended to be relied on by no later than 4.00 pm on 26 June 2021; I made provision for the parties to have the opportunity to file affidavits in reply. The Notations in the order repeated the consequences of the application of s 102NA; again (that is, for the second time) they included a link to the Scheme administered by Legal Aid Queensland; and for what was the fifth time, the order that issued had the Family Violence Information Sheet attached to it.

12. On 29 June 2021, the Case Coordinator to Registrar Walker emailed the mother to advise her and remind her of the hearing dates (that is, 23–27 August 2021) and of the directions previously made to facilitate that hearing.

13. Following further follow-up by an appropriate officer within the Court, the Court was advised, on 16 July 2021, by a member within the Grants Functional Support Team of the Scheme, that the mother had not submitted an application form to the Scheme.

14. By a further email sent to the mother, by the Case Coordinator to Registrar Walker, on 19 July 2021, a number of matters were raised. First, that the information the Court had received was that she had not yet filed an application under the Scheme; secondly, she was advised of the consequences for her of not applying under the Scheme (namely, that she would not be permitted to cross-examine the father); she was advised that she should contact Legal Aid Queensland immediately to make an application under the Scheme for legal representation for these proceedings; and her attention was specifically drawn to order 37 of the trial directions made on 19 March 2021 – that is, the clause that provided for consequences of failure to comply with trial directions: namely, that the matter may proceed on an undefended basis.

15. In answer to yet a further inquiry made by an appropriate officer within the Court, the Court was advised by an officer from the Scheme on 3 August 2021 that the Scheme had not received any application from the mother.

16. By reference to the affidavit of Mr Evans filed 29 July 2021, read by Mr McGregor in the proceedings, the father’s solicitors inspected documents produced by Queensland Health and the C Hospital in answer to subpoena on 22 July 2021 in relation to the mother’s asserted admission to, and treatment from, the C Hospital as at the time of the previously listed final hearing (that is, 17 May 2021); it was discovered that no records produced related to the mother’s asserted attendance at the C Hospital for treatment, care or admission on the dates of the trial.

17. It is also apparent from Mr Evans’ affidavit filed 29 July 2021 that: having compared the medical certificate provided by the mother (as an attachment to her email on 17 May 2021) with the material produced in answer to the subpoena, contact was made with the C Hospital; on 26 July 2021, Mr Evans wrote to the records department of the C Hospital and provided that section of the administrative arm of the C Hospital with a copy of the medical certificate provided by the mother by email sent on 17 May 2021 to the Court (and then provided to the parties); Mr Evans noted that the documents produced in answer to the subpoena did not include any reference to attendance and sought a response (see Annexure A to Mr Evans’ affidavit).

18. Relevantly, the contents of Annexure B to Mr Evans’ affidavit filed 26 July 2021 includes the following information provided by the C Hospital, which may be summarised as follows: first, what is described as a “snip of presentations” is attached – which records the mother making a visit to the J Hospital on 27 February 2019 and a visit to the C Hospital on 20 November 2017: secondly, the information provided (that is, the reply from the C Hospital at Annexure B to Mr Evans’ affidavit) asserts that the mother had not presented to the C Hospital Emergency Department or any other Department in the last four years under the name of Ms Nemes.

19. Annexure B also asserts that, due to the fact that the mother was not registered as a patient for a number of years, the author of the correspondence strongly doubted that the medical certificate was legitimate – this was a reference to the medical certificate provided by Mr Evans, which was, of course, a copy of the medical certificate the mother had provided to the Court via attachment to her 17 May 2021 email. Points were raised by the author of Annexure B in relation to, and supportive of, the asserted opinion about the legitimacy, or otherwise, of the medical certificate: namely, that, when issued, a clinician is required to state their provider number, so they are identifiable; and that, due to privacy legislation, clinicians are asked to limit information on the certificate such that details of the illness or injury are usually exempt.

20. Mr Evans then emailed the mother to ask that she provide an explanation for the absence of the documents about her attendance at, and/or treatment from, the C Hospital in relation to those documents provided by the hospital itself (see Annexure C to Mr Evans’ affidavit).

21. Meanwhile, in a further follow-up email sent to the mother by the Case Coordinator to Registrar Walker on 5 August 2021, reference was specifically made to the emails previously sent to the mother on 19 July and 26 June 2021. The August 2021 email also noted that no information had been received from the mother; she was reminded that the matter was listed for case management hearing and that the trial would commence on 23 August 2021. The email again reiterated that aspect of the trial directions about noncompliance with the directions and the consequences of the same and sought a response as a matter of priority.

22. At 9.01 am on 6 August 2021, the mother sent an email to the Case Coordinator to Registrar Walker. That email contained the assertions that she had issues with her email account being hacked and emails being deleted and, therefore, she did not see them. She asserted that: she had applied for Legal Aid and been rejected due to her ownership of a car; she did not have legal representation and did not know how she was going to afford the upcoming trial; she had been very unwell and under a lot of pressure and stress as a consequence of what was said to be the unhelpful actions of Mr Evans and the Independent Children’s Lawyer (whom she asserted had been “rather threatening in emails over the past two months”); and that she was “fearful of representing [herself]” as “both of those parties had already shown aggression towards [her]”.

23. Given that the mother did not appear before me on 6 August 2021, I made an order that the Transcript of that appearance be obtained, marked as Exhibit 1 and be provided to the parties. I also made an order reserving the costs of and incidental to the appearance that day.

24. On 10 August 2021, a copy of the Transcript of the appearance on 6 August 2021 (being Exhibit 1 of that day) and a copy of the orders I made on 6 August 2021 were emailed to the parties and the Independent Children’s Lawyer.

25. The email address used by the Court to forward those documents to the mother was the same email address from which the mother had communicated and from which those emails, to which I have already referred were, at least ostensibly, authored. It is the same email address the mother used in her communications with the Case Coordinator to Registrar Walker and my Associate in May of 2021. It is also the same email address from which the mother communicated with the Case Coordinator this morning in authoring the document which I have marked as Exhibit 1 in these proceedings.

26. I accept the submission to the effect that, given the contents of Mr Evans’ affidavit and the information provided by the C Hospital in relation to the issue of the mother’s asserted attendance at that hospital in May 2021, I should place no weight upon the contents of Exhibit 1. I do not accept, because of my significant concerns about the mother’s veracity, the contents of the email of 23 August 2021 and the contentions and assertions contained within it insofar as they go to asserted or implied behaviours by the father or members of his legal representation and when they go to direct and/or implied assertions about the asserted and alleged behaviour by the Independent Children’s Lawyer towards the mother.

27. Insofar as the mother’s assertion that she does not appear this morning because she is “too scared to represent [herself]” is concerned, reference to the chronology (which I have laboriously outlined this morning) makes it clear that the only reason the mother has not had the benefit of legal representation in these proceedings is as a consequence of her own decision to fail to take up the opportunity afforded to her by the existence of the Scheme.

28. Given the past actions in May 2021 (which resulted in the decision adjourning the trial, and the loss of those days and the cost associated with the same) and the contents of Mr Evans’ affidavit and the information provided by the C Hospital, I am not persuaded that there is any utility in further adjourning these proceedings.

29. I am easily persuaded that the mother has been afforded more than sufficient opportunity to participate in these proceedings; I am also easily satisfied that her non-participation in the same is as a consequence of her own decisions.

30. No more could have been done by members of the Court staff, who were required, on top of their usual duties, to undertake a series of communications with the mother to remind her of the existence of the Scheme and to assist her to access it via including a link in the orders that provided her a direct means of doing so as to assist the mother to participate in the proceedings.

31. For those reasons then, together with her obvious non-compliance with the various directions made which were intended to facilitate and afford to her the opportunity to participate in the proceedings, I am easily persuaded that it is appropriate – and certainly in X’s best interests – that I proceed to hear the matter in the mother’s absence and on an undefended basis today.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate: 

Dated:       31 August 2021