Forester & Forester
[2024] FedCFamC1F 352
•24 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Forester & Forester [2024] FedCFamC1F 352
File number MLC 106 of 2022 Judgment of WILSON J Date of judgment 24 May 2024 Catchwords FAMILY LAW – PRACTICE & PROCEDURE – late adjournment application by the applicant day before commencement of trial – adjournment application dismissed. Cases cited Aon Risk Services Australia Pty Ltd v Australia National University (2009) 239 CLR 175
Moy & Pao (No.2) [2020] FamCA 1092
Division Division 1 First Instance Number of paragraphs 10 Date of last submission 24 May 2024 Date of hearing 24 May 2024 Place Melbourne Applicant No appearance Counsel for the respondent Mr J. Rattray Solicitor for the respondent TFA Legal Counsel for the independent children's lawyer Mr M. Leeton Solicitor for the independent children's lawyer Taft Lawyers ORDERS
MLC 106 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS FORESTER
Applicant
AND MR FORESTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILSON J
DATE OF ORDER:
24 MAY 2024
THE COURT ORDERS THAT –
1.The adjournment application is dismissed.
2.The trial will procced on an undefended basis.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Forester & Forester has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
This proceeding was transferred to my docket by order of the Chief Justice made on 4 December 2023. Prior to the case being placed in my docket applications and appearances were conducted on a number of occasions during which the applicant did not appear. Those included 4 December 2023 when counsel for the ICL and the father appeared, 30 January 2024 when counsel for the husband and the ICL likewise appeared, 4 April 2024 when the husband and the ICL were represented but the applicant was not and 15 April 2024 when the parties were informed that if the applicant failed to appear on 24 May 2024 the trial would proceed on an undefended basis.
Today I was told that the applicant has been represented at various times through the life of this litigation by not less than 10 firms of solicitors. No trial affidavit material has been filed by the applicant.
Being informed on 24 April that the proceeding may proceed on an undefended basis the applicant has engaged in a collection of correspondence directed to my associate only without providing a copy to the ICL or the father's representatives. On 2 April 2024 at 5.17 pm the applicant said that she was unable to be fit for trial and required an urgent adjournment. On Thursday 23 May 2024, that is to say yesterday, the applicant communicated by email to my associate stating that she had been able to connect with a legal aid lawyer.
The applicant went on to say that the legal aid lawyer with whom she had allegedly connected was unavailable until the end of June or early July for a trial and she asked for an adjournment. In response my associate wrote at 10.31am yesterday that an appearance today at 10.00 am was required. This morning at 9.14am my associate received an email from the applicant to the effect that the applicant had woken up ill and would not be in attendance. She said she was waiting for a doctor and did not want to waste the court's time by an appearance because she said that her legal aid lawyer a few days ago said he or she was available only at the end of June or early July for a trial.
No details have been put before me since this case came into my docket about the reasons for the applicant's absences and her failure to appear at any time since this case was before me. She has asserted that she has made contact with a legal aid lawyer but the details of the person with whom she has allegedly connected has not been given nor has she informed the court of the precise details that have been imparted, still less has she informed me why the legal aid lawyer allegedly needs until the end of June or July to be able to commence this trial.
It must not be overlooked that my most recent orders indicated that the case may proceed on an undefended basis if the applicant did not appear today. The applicant has had access to the court portal since she has become unrepresented. She therefore has known that the case would likely proceed on an undefended basis today. Nevertheless she has chosen to absent herself and she has given no valid reason for that non-appearance.
Importantly she has failed to provide any information in the form of an affidavit or otherwise indicating her position in the trial of this proceeding. The trial raises important issues such as sole parental responsibility and live-with arrangements for the child. One would expect the applicant to be very keen to put her side of the story rather than absenting herself in the way that she has.
The principles espoused by the High Court in Aon Risk Services Australia Pty Ltd v Australian National University[1] bear upon the proper disposition of this applicant. There, the High Court emphatically pronounced that parties do not have an absolute untrammelled right to an adjournment at any stage of litigation. That is all the more in circumstances where the applicant was specifically told a month ago that the case may very well proceed on an undefended basis. She has given no valid reason to justify her non-compliance with court orders made previously as to filing of affidavit material or for that matter appearing today.
[1] (2009) 239 CLR 175.
In Moy & Power (No. 2)[2] I held that a trial may go ahead on an undefended basis where a party is persistently dilatory in complying with court orders especially one towards the advancement of that party’s own case. In my view the applicant should not be permitted to continue to adopt this approach of intransigence towards getting this case on for trial. That is for the self-evident reason that the respondent is being stymied in the advancement of his interests and those of the child in this case by reason of the applicant’s non-appearance.
[2] [2020] FamCA 1092.
I take the view that the applicant has been given enough time to prepare her evidence in this case. She has failed to do so. Counsel for the father has indicated that proceeding today is in the best interest of the child especially where professional evidence will be adduced to the effect that the child is at a lower risk of harm while in the father's care than when in the mother's care. In those circumstances I propose to proceed with the case on an undefended basis.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 24 May 2024
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