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…