F & S

[2005] FamCA 44

[2005] FamCA 44

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No NA50 of 2004
AT BRISBANE  File No BRF5353 of 2003

BETWEEN:

F
Appellant Father
- and -

S
Respondent Mother
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  BRYANT CJ, KAY & HOLDEN JJ
DATE OF HEARING:                 27 October 2004
DATE OF JUDGMENT:             8 February 2005

APPEARANCES:  The Appellant Father in person.

Mr Galloway of Counsel, instructed by Andersons Solicitors, PO Box 84, Acacia Ridge, Qld 4110, appeared on behalf of the Respondent Mother.

Ms McMillan of Counsel, instructed by Williams Lawyers, PO Box 340, Coorparoo, Qld 4151, appeared on behalf of the child representative.

F and S
NA50 of 2004
CORAM:       BRYANT CJ, KAY & HOLDEN JJ
DATE OF HEARING:         27 October 2004
DATE OF JUDGMENT:     8 February 2005

Catchwords: PRACTICE AND PROCEDURE - RELIANCE ON UNSERVED AFFIDAVIT AT UNDEFENDED HEARING - CHILDREN – residence and contact – final orders by trial Judge granting residence to the mother made after father apparently elected not to appear at the hearing– affidavit filed on the morning of the hearing by child representative containing much material adverse to the father -rule 15.06 provides that an affidavit may be relied on at a hearing or trial only if it is filed and served in accordance with the Rules (14 days before the pre-trial conference) or an order – although Court has power to vary times and dispense with compliance of the Rules, such a process should be adopted where the dictates of justice make it appropriate - party who appears is entitled to expect that the proceedings will be dealt with on the day they are fixed for trial (Buljubasic v Buljubasic (1999) FLC 92-865) - this expectation does not relieve the Court from its obligation to provide procedural fairness to the absent party –appropriate to have stood the matter down to enable the father to be given the material that was to be relied upon and warned that if he did not appear the following morning the matter would proceed in his absence - appeal allowed on procedural grounds – orders made giving the father another opportunity to be heard in respect of the competing residence applications.

1. This is an appeal against orders that were made by O'Reilly J on 3 August 2004 relating to the parties' child L born 18 December 1995.  The appellant father did not attend at the hearing and in his absence her Honour ordered that the child reside with her mother who was to be solely responsible for the day to day and long term care welfare and development of the child and that until further order there be no contact between the child and the father.  She further ordered that the father's application relating to contact issues be listed only after the father had fulfilled certain conditions which required him, amongst other things, to attend upon a named psychiatrist for a psychiatric assessment. 

1. The matter came on for hearing before us on 27 October 2004 when we made orders allowing the appeal, setting aside her Honour's orders and directing the matter be remitted for rehearing.  We indicted that we would publish our reasons for so doing at a later time.

1. Whilst the father's Notice of Appeal is extremely wide-ranging, containing 41 grounds, many of which seem to be offensive and unarguable, we wish to indicate at the commencement of our reasons that the appeal is being allowed strictly on procedural grounds and that it is not intended in any way to indicate that the orders that were ultimately made by her Honour might not have been appropriate orders to have been made were it not for the procedural issues that we will be identifying.

Background

1. The appellant and the respondent are the parents of their eight year old daughter L.  The father has seven other children from two previous relationships.  The mother has one other child who resides in the Philippines where the parties met some time shortly before early 1995. 

1. The father brought the mother to Australia in January 1995.  Early in 1996 the father was sentenced to four years imprisonment arising out of offences relating to his conduct towards his previous wife, also a Filipino lady whom he had met in 1987.  He was released on parole in April 1999 and resumed cohabitation with the mother in these proceedings.  They separated in January 2003 and for much of the time thereafter the child lived with her father. 

1. Some time after May 2003 the mother commenced a relationship with one G whom she subsequently married in May 2004. 

1. In September 2003 the father made allegations that G had sexually interfered with L.  Those allegations were subsequently investigated by the Queensland police and by the then Department of Families who appear to have concluded by early January 2004 that there was no substance in them and that any disclosures that the child had made were made at the insistence of the father and did not represent the truth of the situation.  A medical examination of the child had disclosed that her hymen was no longer intact but the relevant State authorities seemed to be of the view that this was not as a result of any behaviour by G.  In January 2004 they apparently moved to take the child into care but the child became so distressed that they eventually returned her to her father after some three or four days.

1. On 11 December 2003 the father filed an application seeking the return of the child's passport to him; the return of some clothing and other possessions of the child that the mother was alleged to have taken with her when the parties separated; and other orders relating to the return of clothing after periods when the child was in the possession of her mother.

1. On 15 January 2004 the mother responded by filing an application that sought residence of the child and that the father have contact at the Logan West Contact Centre for not less than two hours each alternate weekend.  The application also sought other orders relating to the provision of medical and school reports and the like to the father should the child come and live with her.

1. On 25 February 2004 Smith JR made orders which provided for the mother to have contact with the child from 9.00am to 6.00pm two days each fortnight with hand-overs to take place at the Logan West Contact Centre.  She restrained the removal of the child out of Australia and, amongst several other orders she made, she requested that the matter be given consideration for inclusion in the Court’s Magellan Project.

1. The father sought to review the orders of Smith JR and filed an Application for Review on 2 March 2004.  He then sought a stay of the orders, which Smith JR refused on 11 March 2004 directing that the application for review against her earlier orders be listed in the Magellan List on 24 March 2004.

1. The matter came on for directions in the Magellan List before O'Reilly J on 24 March 2004.  Her Honour designated the matter as a Magellan matter and requested that the Director General of the Department of Communities intervene in the proceedings.  She asked that the Director General prepare a report as to the allegations contained in the parties' filed material, seeking that the report be filed no later than 2 June 2004.  She gave permission to both the Director General and the child representative, who had been appointed in the proceedings, to inspect and copy the files of the Family Court relating to the matter and then adjourned it for a further Magellan directions hearing on 9 June 2004.  She also adjourned the father's review application seeking to review the orders of Smith JR to 9 June 2004 for further directions.

1. It appears that the father, aggrieved by the failure of the Judge to deal with his review application, approached the administrative judge and that a hearing of the review actually was conducted by Jordan J on 27 April 2004.  The orders made by Jordan J on 27 April 2004 were substantially identical to those that had been made by Smith JR on 25 February 2004.

1. On 9 June 2004 the matter came on for hearing and directions before O'Reilly J.  The father made an application that her Honour disqualify herself from further hearing the matter, which application was dismissed.  She directed the matter be listed for trial commencing 3 August 2004.

1. The father, dissatisfied with the orders that Jordan J had made on 27 April 2004, brought a fresh application that came on before his Honour on 16 June 2004.  His Honour stayed the operation of his earlier contact orders, providing for contact to take place at the Logan West Contact Centre, and made other contact orders for contact to take place in accordance with the wife's written requests from time to time, with collection to take place either from the child's school or from a McDonald's Restaurant in Sunnybank Hills.

1. On 6 July 2004 O'Reilly J heard a further application by the husband and increased the number of allocated trial days from four to nine, with the trial still due to commence on 3 August 2004.

1. On 15 July 2004 Barry J dealt with some issues arising out of the production of documents from the Commissioner of Police and Department of Communities in response to subpoenas that had issued.  It would appear from the transcript before Barry J that these matters had been referred to him by O'Reilly J and that he had adjourned them for hearing on 15 July 2004 to enable all interested parties to attend and make some submissions about the matter.  His Honour let it be known that in the course of preparing for the hearing he had read material on both files but had not looked at a video interview of the child that had been conducted by the police.

1. His Honour said early in that hearing that he thought that the material that was sought to be protected by objecting to its production was in the public domain anyway, having regard to the matters that were contained in the parties' affidavits.  After some discussion and an opportunity to take further instructions, both the representatives for the Director General and the Commissioner of Police indicated that they would withdraw their objections to producing the subpoenaed material but sought orders and were given directions that would ensure that the material not be copied, even though it was available for inspection by the parties.

1. In the course of the discussion about the subpoenaed material his Honour also made reference to two other matters that he had been asked to deal with that day, namely the question of expedition of a series of appeals that the father had filed against the interlocutory rulings of O'Reilly J, as well as an application by the mother to have the father restrained from filing any further applications.  His Honour indicated that he would consolidate the appeals.  His Honour, after significant discussion, reserved the issue of whether he would expedite the various interlocutory appeals and having indicated that he would not deal with the vexatious litigant application his Honour began to discuss with the parties and their representatives the material that was contained in the subpoenaed material and other matters that were before him. 

1. In the course of that discussion counsel for the mother indicated that he sought leave to file and rely on an Application in a Case and an affidavit in support thereof seeking that the child reside with her mother.  His Honour asked if copies were available for the child representative and the father.

1. His Honour made some inquiries about the availability of the mother to care for the child and then said:

"…Now, I appreciate that in making submissions - and I’m about to call for submissions - the parties are at a considerable disadvantage in that I have read the Commissioner of Police file in some detail and I have read the Department of Family Services file including, importantly and significantly, the SCAN review minutes of the meetings extending from when the complaint was first made against [G]

…

From about August of last year through to the latest meeting which is on the file.  I am in a position to summarise the material on the file and I intend to do that, but I'll call for submissions first and will give further directions to endeavour as far as possible, both in the real sense that the parties have had the opportunity to peruse all the material and the opportunity to be heard.   [F] what's your position?

[F]:      In relation to what, your Honour?  Mr Boundy's application?

HIS HONOUR:        Yes.

[F]:      Your Honour, it's quite obvious he's just held this back and---

…

…He's had ample opportunity to serve it.  He's had the process servers - you're aware of that - an affidavit. 

HIS HONOUR:        Yes. 

[F]:      ---from the process server who said he came round and saw (indistinct).  He didn't bother serving this stuff.  He just held it back today, hoping to do a snow job on you as he's done before…

…

HIS HONOUR:        I'm not interested in vituperative attacks on Mr Boundy.  What I am interested in, critically, and I'll be referring to other material - but I have two government departments - departments that are established to protect the citizens of this State.  The Police Department and the Department of Communities and senior officers of both departments are saying, for the child's emotional safety, her emotional wellbeing, her physical wellbeing and because of the risk of sexual abuse, 'Remove her from the father's environment'.  That's what they're saying.  Now, you tell me why a judge would ignore the advice, particularly in circumstances where I have read the file and the basis upon which they are making those statements and you haven't."

1. The father's response was to indicate that the Department of Families was a disgraced organisation.  His Honour said in response:

"Regardless of the veracity or otherwise of the police officers, they have a video of the child's gynaecological examination by a paediatrician---

…

---at the Mater Hospital and they have the child being interviewed on video where she is dobbing you in.

[F]:      I know that."

1. After further discussion, his Honour said:

"You are the prime suspect.

[F]:      I know they're - if they're - look, if they say that - why don't they give it a rest (indistinct)?  It's so stupid, you know, because they're not saying it all - because the child would never say me because it would be totally untrue, and they're not saying that…"

1. At the conclusion of his discussion with the father his Honour heard from the child representative who indicated that having seen the father's previous criminal history he had some real concerns about the safety of that child at that point of time.  He wanted to ensure that the child was in a safe place pending the matters being resolved at the hearing.

1. His Honour then moved to admit into evidence the whole of the Queensland Police Service file and the whole of the Department of Communities file, then delivered a judgment in which he ordered that the child be immediately placed into the care of the mother and that the father be restrained from making contact with the child until further order.  That judgment is the subject of appeal NA45/2004.

1. One of his Honour's orders restrained the father from telephoning or attempting to telephone the child at any number at which she may be contacted.  It would appear that immediately following the orders made by Barry J on 15 July 2004 the father attempted to telephone the school and speak to the child.  That conduct was brought to the attention of the trial Judge by the mother's counsel on the afternoon of 15 July 2004 and his Honour indicated that if they wished to file an application relating to the alleged breach supported by an affidavit from the school principal it could be listed for hearing before him in the following week.

1. An application was filed that the father be dealt with pursuant to the provision of s 112AP of the Family Law Act and it came on for hearing before Barry J on 30 July 2004.  At that hearing the applicant father was convicted of a charge of contempt and the matter was then adjourned for sentencing on 17 September 2004.  As a result of matters that had occurred in relation to documents filed in response to that charge, Barry J determined that further charges should be laid against the father and adjourned those for hearing on the following Tuesday 3 August at 2.00pm. 

1. At some time on 30 July the father filed a further application in a case in which he sought several orders, including:

"1.      An urgent hearing of the stay application by Monday 2/8/04.

2.That the orders of Barry J of 15/7/04 be immediately stayed.

3.That the orders of Jordan J of 16/6/04 be reinstated.

4.That the child [L] be returned to the residence of her father immediately and forthwith.

…

7.That the trial in this matter set to commence 3/8/04 be stopped.

8.That a new trial date be set in the period Nov 04-Feb 05 and after the appeals of the father to the Full Court are heard.

…

13.That an appeal filed 28/7/04 against the orders of Justice Barry be expedited."

1. On the morning of 3 August 2004 when the matter that had been set down before O'Reilly J for trial was called on the father did not appear.  In the course of announcing her appearance counsel for the Child Representative indicated that there was somebody from the Department of Families holding a watching brief and that they had filed an affidavit by one Margaret Sturrock, described by Ms McMillan as "the Magellan report".  Her Honour noted the presence of a Ms Smith from the relevant department and indicated that she could either remain in the gallery of the court or come forward at any time if she wished to engage her Honour's attention.  She then said that as [F] was not present and had been called she was proposing to proceed in default of the appearance of the father.  She said that as she had some familiarity with the matter she was proposing to make some final orders that the child reside with the mother and then stand over the matter of contact subject to the father meeting some conditions.

1. Ms McMillan said she understood that the father was likely to appear at 2 o'clock in the afternoon before Barry J because it was a contempt sentencing matter and that perhaps the father might be under the very mistaken impression that her Honour would not proceed unless he was present today.  Her Honour then said:

"I don't think so.  He's filed an application.  Thank you for bringing that to my attention but [F] has actually filed an application on 30 July 2004 paragraph 7 of which he seeks that the trial in this matter set to commence on 30 August 2004 be stopped.

MS MCMILLAN:      I see.  The only other aspect I was going to raise with you was whether your Honour order, in fact, that he be informed this afternoon that your Honour is going to proceed with the trial whether he appears or not…

…

And then we will go - sorry, your Honour, further on from that, given that the father is unlikely perhaps to proceed if he’s not here this morning - that we were going to seek that your Honour really proceed as an undefended hearing---

…

---because from the child's perspective clearly the matter as much as one can be finalised so that the child's position is very secure in her mother's care and that the final orders be made and we’re strengthened in that view, if I can put it this way, by the report prepared by Ms Sturrock where the current departmental position is outlined in paragraphs 22 to 24."

1. Her Honour then said to Ms McMillan that she wanted her to "walk her through the evidence” of Ms Sturrock's affidavit and in the experts’ reports and indeed of the parties. 

1. Her Honour then announced that she intended to proceed with the matter that morning and if the father appeared the day after, or later that day, after she had delivered judgment she would deal with that problem when it arose.

1. There were some further procedural discussions before her Honour concerning the material that she would be relying upon.  She marked as Exhibit 1 the bundle of documents extracted from the Department of Families file and as Exhibit 2 the bundle of documents from the Commissioner for Police, and amongst other documents that were sought to be relied upon before her Honour Ms McMillan said:

"that obvious[ly] the child representative relies on the affidavit of Ms Sturrick [sic] which was filed today."

1. Mr Hodges on behalf of the mother sought leave to file an affidavit of the mother updating the circumstances as a result of the orders of 15 July which placed the child in his client's residence.  It was sworn that day and it was fairly clear that it, like Ms Sturrock's material, had not been served upon the father.

1. Her Honour delivered judgment later that morning and it is clear from the judgment that her Honour placed significant weight on the material contained in Ms Sturrock's affidavit.  She said:

“21.Margaret Sturrock, a Senior Practitioner in the Department of Communities, provided an affidavit filed by leave today, 3 August 2004.  That affidavit exhibits a Child Protection Report compiled by her and dated 2 August 2004.  The Child Protection Report refers to three notifications recorded in the Department's file, extracts from which are exhibit 1.  I propose to refer to only one of those notifications, and that is the one recorded at the Mt Gravatt office on 2 January 2004.  Ms Sturrock sets out in her report (par 6) that the concerns were: 

·‘[L] stated she wanted her mother to take her away.  When asked why, [L] replied “It's just that sometimes I wake up and find my father with his hands between my legs”.’ 

·The notifier said [L] further disclosed waking up with her father laying beside her and she ‘sometimes wakes up without my underwear on’.  [L] stated ‘Now I wet the bed, I have never done that before’.  [L] mentioned that her father drinks a lot. 

·According to the notifier, [L] is a sad looking little girl with messy hair, dirty clothes, dirty hands and dirt underneath her nails."

22.Ms Sturrock’s report refers (par 12) to an assessment by the Department that the child has suffered sexual abuse, identified by medical examination, but that it has not been possible to deduce whether this was one traumatic event or prolonged sexual harm involving penetration.

23.The Department's position is as summarised at pars 20 to 24 of the report, which I will set out:

‘20.I consider that [L] would be at a high risk of ongoing emotional and physical sexual abuse should she be returned to her father's custody.

21.I would also consider she is at risk of ongoing emotional abuse should [F] have contact with her, and given his incapacity to accept the authority of others, a related inability to accept an arrangement that secures [L]'s safety, and the safety of others, on contact.

22.[F] demonstrates no commitment or capacity to engage with departmental officers to ensure the safety of his daughter, [L], and he has an absolute disregard for authority.

23.In view of the above the Department would have grave concerns for [L]'s safety should residency be granted in [F]'s favour, and any arrangements be made for contact between [F] and [L].

24.Should a residency order be made in favour of [S], the Department would provide support for [S] and [L], as appropriate, and assist with any referrals for counselling as considered necessary."

1. Her Honour then concluded that on all of the evidence the child had suffered sexual and emotional abuse and that it was more likely than not that it had occurred whilst in the father's care and accordingly that if the child was to reside with the father there would be an unacceptable risk of continuation of that abuse.

1. As was already indicated that in allowing the appeal against her Honour's orders we make no comment as to whether or not the findings were appropriate on the evidence before her Honour.  We are concerned, in the manner that we are treating this appeal, with form rather than substance.

1. It seems from the discussion that the father had before Barry J later that day when he appeared for purposes relating to the contempt charges that there was some confusion as to what had become of his application filed 30 July 2004 seeking that the trial before her Honour not proceed and that Barry J's orders be stayed.  That application had been issued on the basis, according to the father, that he would be advised of when the return date was.  The application itself sought to have the matter dealt with on 2 August 2004.

1. The father indicated to his Honour that he had received notification from a person whom he thought might be his Honour's associate that the matter would be before his Honour at 2 o'clock on the afternoon of 3 August.  There was some discussion about this matter before his Honour and on that afternoon the following exchange took place after the contempt charges had been adjourned to 17 September:

"[F]:     Yes, there is another further matter, your Honour, which is before you today.  A person - I'm not sure if it's your associate, if her name is Karen it could well be, but telephoned me yesterday and said that a stay application is ---

HIS HONOUR:        I do apologise, that's right.  Now which paragraphs of that application do you say are relevant for my consideration at this point of time?"

1. [F] then renewed his application for his Honour to disqualify himself.  After his Honour indicated he would not, and then apparently looking at the application his Honour said:

"Well, you see, for example, some of them clearly, like paragraph 7, that a trial in this matter said to commence 3 August be stopped, that that would be for the determination by the trial Judge, O'Reilly J.  Which of these paragraphs relate to proceedings before me?

[F]:      I say that would have been in your power to stop that in any case if you look at the facts outlined in the affidavit…"

1. [F] was then asked whether he had been at Court that morning and he said that he had not.  Ms McMillan then outlined to his Honour what had occurred.  His Honour then pointed out that there did not seem to be much point in dealing with most of the father's applications because his Honour's orders were no longer operative and that in so far as he wanted an adjournment of the trial, that should have been made before the trial Judge.

1. In support of his application to adjourn the trial from 3 August, the father had sworn and filed an affidavit on 30 July 2004 in which he said that

·     he was required to attend the Magistrates Court on 6 August 2004 [one of the dates allocated for the hearing];

·     he was required to appear in the Family Court on 30 July 2004 on a contempt charge;

·     he was required to prepare submissions and affidavits by 28 July 2004 [presumably in relation to the contempt charge];  and,

·     he was seeking to prepare an appeal to the Full Court arising out of the contempt charge.

He said as a result he did not have the time to inspect the subpoenaed documents which were admitted into evidence by Barry J on 15 July and which Barry J said would take a week to read, and that in the circumstances he could not participate in the trial on 3 August 2004.  He indicated that the events which had occurred since 15 July were entirely unforeseen and he then went on to air some other grievances.

1. It appears clear from the transcript before her Honour that she was aware of the application filed that day but no reference is made to the material contained in that affidavit. 

Discussion

1. This was ultimately a trial concerning the welfare of a child.  The Court was obliged to pay consideration to the material before it, hear argument if any was proffered and proceed on that material to make orders that met the statutory criteria laid out in Part VII of the Family Law Act 1975.

1. The rules of natural justice provide that a party is entitled to be made aware of the date when the trial will be heard and what is being sought at that trial. The Family Law Rules 2004 provide in Rule 15.06 that an affidavit may be relied on at a hearing or trial only if it is filed and served in accordance with the Rules or an order. Rule 15.07 requires affidavits to be filed 14 days before a pre-trial conference. Rule 15.14 provides that a party who wishes to cross-examine a deponent must at least 14 days before the trial give to the party who filed the affidavit a written notice stating the name of the deponent who is required to attend for cross-examination.

1. Whilst the Court has power to vary times and dispense with compliance of the Rules, ultimately such a process should be adopted where the dictates of justice make it appropriate.  The non-appearance of a party at the hearing places the judge in a difficult position when indulgences are sought by the other party to rely upon material not served in accordance with the Rules or to otherwise seek some waiver of the Rules.

1. The party who appears is entitled to expect that the proceedings will be dealt with on the day they are fixed for trial.  In Buljubasic vBuljubasic (1999) FLC 92-865; 25 Fam LR 371 at para 26 Lindenmayer J, with whom Finn and Warnick JJ agreed said:

“The business of the court would come to an end if people could simply stay away from the court on the listed date for hearing and be assured that their matter would not proceed in their absence, and effectively obtain an adjournment, without merit, merely because the court felt constrained not to proceed with the matter in their absence.”

1. This expectation that the proceedings will go on in the absence of a party who chooses not to attend does not relieve the Court from its obligation to provide procedural fairness to the absent party.

1. In this case her Honour appeared to rely heavily upon material contained in an affidavit that had been filed on the morning of the trial and which clearly had not been served upon the father. 

1. The father was being very difficult in the proceedings.  He had already warned the trial Judge at the hearing on 9 June 2004 that he may not attend at the hearing if it did not suit him and he had repeated that threat to Barry J in the proceedings on 15 July when he told his Honour he could not concentrate on all of the matters he had to deal with, particularly the number of appeals he had against the trial Judge relating to interlocutory matters.  It was clear that on 30 July when he filed his application to further adjourn the trial he was not anxious to become a participant in it on 3 August. 

1. He had been told at the beginning of the process by her Honour on 24 March that the invitation to the Department in accordance with the Magellan procedure could lead to the Department filing reports or partaking in the proceedings.  He had, however, also been told at the hearing on 9 June 2004 that the Department were no longer cooperating with the Court in the Magellan Project, in not only his case but all cases, and he could not expect in those circumstances to see a report from it.  It must then have come as some surprise that when her Honour's judgment was published she relied on such a report that had been tendered to her on the morning of the hearing via the affidavit of Ms Sturrock. 

1. We think there was much wisdom in the approach urged upon her Honour by Ms McMillan that in the absence of the father that morning it would have been appropriate to have stood the matter down to enable him to firstly be given the material that was to be relied upon and secondly, warned that if he did not show up the following morning the matter would proceed in his absence.  He could then have come to her Honour and made an application for an adjournment of the proceedings on the basis of this fresh material and on the other bases that he sought to rely upon, including the significant changes that had recently occurred as a result of the interim orders of Barry J. 

1. For the matter to have then proceeded on in his absence where there was some doubt surrounding when and before whom his adjournment application was to be listed, and for there to have been a reliance upon obviously important material that had not been served upon him, in our view makes it unsafe to allow the orders to stand. 

1. We are conscious that the father appeared to have purposely elected not to appear before her Honour at the hearing of 3 August 2004 knowing full well it was to be listed that morning.  We are aware that the father had a history in earlier proceedings relating to his previous marriage of leaving the hearing after several days leaving the judge to proceed on an undefended basis.  It is clear from much of the father’s material that he has difficulty in understanding what is likely to be relevant to the issues that the Court must deal with in the proceedings.  He makes thoroughly inappropriate and offensive personal attacks on many persons and institutions who do not act in accordance with his concepts of how he views the world.  In much of his writings his thought processes seem to make it unlikely that he can focus on relevant matters.  These problems ought have alerted her Honour to proceed cautiously before relying on freshly filed and unserved material.

1. Ultimately the matter deals with the welfare of a child and the Court is required to pay proper attention to matters that are raised in proceedings in determining how the best interests of the child should advanced.  In all of the circumstances we feel that the more appropriate course for her Honour to have adopted would have been to have followed the path urged upon her by the Child Representative and clarified the position with the appellant that in the absence of his appearance she would consider the material, including the further evidence that had arisen that morning.  It is for those reasons that we have allowed this appeal and made orders giving the father another opportunity to be heard in respect of the competing residence applications.

I certify that the 55 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate