Fulton and Packer (No 2)

[2017] FamCA 804

FAMILY COURT OF AUSTRALIA

FULTON & PACKER (NO. 2) [2017] FamCA 804

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Where the Respondent failed to appear at the further adjourned part heard hearing of the Contravention Application – Order made adjourning the part heard proceedings.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Fulton

RESPONDENT: Ms Packer

FILE NUMBER: LEC 575 of 2007

DATE DELIVERED: 10 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 10 October 2017

REPRESENTATION

APPLICANT: In person via video link from the Lismore Registry

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The remaining Counts 1, 2 and 3 of the Application – Contravention filed 17 July 2017 are further adjourned part heard to 10.00 am on Monday, 16 October 2017.

2. All parties attend the part heard hearing on 16 October 2017 in person.

AND IT IS FURTHER ORDERED THAT

1. In the event that any party fails to appear at 10.00 am on 16 October 2017 then the Application – Contravention filed 17 July 2017 will continue to be heard and determined by the Court in that party’s absence and on the basis of the admissible evidence filed in compliance with previous Directions made in the matter.

AND IT IS FURTHER ORDERED THAT

1. In the event that the Applicant seeks to appear at the further adjourned hearing on 16 October 2017 via video link from the Lismore Registry of this Court, the Applicant shall notify the Case Co-Ordinator, in writing, of that election by no later than 4.00 pm on 12 October 2017.

IT IS FURTHER ORDERED THAT

1. A copy of the Order made today be forwarded to the Respondent at the email address provided by the Respondent in the affidavit filed on 15 September 2017 (namely, …) and that service of the Order be deemed to be effected upon the sending of an email to that address.

NOTATION

(A)The Applicant advised the Court today that the following witnesses on behalf of the Respondent are not required by him for cross-examination at the further adjourned part heard hearing of the Application – Contravention filed 17 July 2017 on 16 October 2017:

(a)Mr Packer;  and

(b)Ms GG;  and

(c)Mr HH.

(B)The Applicant advised the Court today that, in the event that Ms KK is not available for cross-examination at the further adjourned part heard hearing on 16 October 2017 of the Application – Contravention filed 17 July 2017, he is agreeable to the matter proceeding without him having the opportunity to cross-examine Ms GG.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fulton & Packer (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 575 of 2007

Mr Fulton

Applicant

And

Ms Packer

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The reasons for the orders are as follows.  They are delivered for the specific purpose of ensuring that, having regard to the length of time during which this application for Contravention of orders made by members of the Court earlier in these proceedings remains unfinalised, anyone will be able to understand how that has come to occur. 

2. So, the reasons I deliver are as follows.

3. The child the subject of the Application for Contravention was born in 2003.  Reference to the material and the Reasons for Judgment previously delivered by Kent J on 29 July 2013, and by Forrest J on 12 October 2015, make it clear that the last time he spent time with, or interacted with, his father seems to have been in 2011.

4. Following a trial, Kent J made orders on 29 July 2013. 

5. I do not intend to read into the record the entirety of those orders but, by way of very broad summary, they provided that:

   a)the child live with the mother;  and

   b)she have sole parental responsibility for major long-term decisions in relation to him, attached to which were certain obligations to consult with the father, Mr Fulton;  and

   c)the child spend supervised time with his father for two hours per fortnight;  and

   d)after 4 October 2016, being the date on which the child turned 13 years of age, the parties engage in a what I will term a Family Report process, so that further parenting arrangements could be the subject of further assessment.

6. It seems established that, despite the orders made by Kent J on 29 July 2013, B has, in fact, spent no time with his father.  It seems there was an attempt on 6 September 2013 for time to occur at a Contact Centre, but, on the evidence before me, it appears that the child would not get out of the car.

7. It also appears, by reference to the Reasons delivered by Forrest J, that despite an order requiring her attendance at that time, the mother did not attend.  Her failure to do so formed the basis of one of the Counts of contravention of Kent J’s order found ultimately by Forrest J on 23 April 2015.

8. In December 2013, Mr Fulton filed the first Contravention Application. 

9. Reference to the Reasons for Judgment delivered by Forrest J records that a Further Amended Application for Contravention was filed by Mr Fulton in August 2014 and again in January 2015. 

10. Those applications, it seems, came before Stevenson J, who ordered the preparation of a Family Report.

11. The parties then appeared before Forrest J on 14 April 2015, at which time the mother was legally represented and the father appeared on his own behalf.

12. On 23 April 2015, Forrest J made orders and published Reasons for Judgment in support of the same. 

13. By way of broad summary, his Honour found that Ms Packer had contravened the orders made by Kent J in July 2013. 

14. Of the seven Counts of alleged contravention prosecuted by Mr Fulton, Forrest J found that Ms Packer had contravened the orders without reasonable excuse in respect of five of the Counts alleged: that is, Mr Fulton was successful in his prosecution of five out of the seven alleged contraventions as particularised by Forrest J in the Reasons his Honour delivered on 23 April 2015.

15. On that day, having made those orders, Forrest J listed the matter back before him on 7 July 2015 so as to provide the opportunity to the parties to be heard in submissions relating to penalty. 

16. On 7 July 2015, the parties again appeared before Forrest J. 

17. At that time, the Family Consultant, who had prepared the report consequent upon the earlier orders made by Stevenson J, was made available for cross‑examination and was cross‑examined. 

18. His Honour, it seems, from reference to his Honour’s Reasons, heard the submissions of the parties following that cross‑examination. 

19. On that occasion, Ms Packer was legally represented, and Mr Fulton again appeared on his own behalf.

20. Having heard the submissions, it appears that Forrest J reserved his decision.

21. On 12 October 2015, Forrest J made orders and published Reasons for Judgment in support of the same. 

22. By way of broad summary, his Honour varied, in some respects, the orders previously made by Kent J in July 2013, and also ordered that Ms Packer attend at a post-separation orders program.

23. On 23 November 2016, Mr Fulton filed an Application for Contravention in the Federal Circuit Court.  The allegations contained within that Application are the same as those contained in a later Amended Application filed 17 July 2017.

24. On 6 February 2017, Judge Coates of the Federal Circuit Court transferred the matter to this Court.

25. On 1 June 2017, Senior Registrar Spink heard the objections to various subpoena which had been issued by Mr Fulton.  At that time, both Mr Fulton and Ms Packer appeared as litigants in person, and one of the organisations to which the subpoena had issued – and which had sought to oppose the production of documents – appeared by legal representation.

26. On 13 June 2017, the last written submissions were received by Senior Registrar Spink.

27. On 28 June 2017, Senior Registrar Spink made orders and delivered Reasons for Judgment in support of the same.  Reference to the orders he made that day makes it clear that various subpoena were set aside and the parties were permitted to have access to records produced by another organisation.

28. On 11 August 2017, the Application for Contravention (filed 23 November 2016 in the Federal Circuit Court) first came before me.  At that time, Mr Fulton appeared on his own behalf.  Ms Packer did not appear. 

29. The basis and the circumstances associated with her non-appearance on that occasion were the subject of discussion in the Reasons for Judgment I delivered ex tempore that day in support of the order I made adjourning the hearing of the Application to 31 August 2017.  Regard should, obviously, be had to those Reasons and to the orders made in an attempt to bring to a conclusion the hearing of the Application for Contravention.

30. On 31 August 2017, the parties appeared before me.  Both were not legally represented.  Reference to the orders made that day makes it clear that each was permitted the assistance of a specified person to act as a McKenzie friend. 

31. One of the Counts contained within the Application for Contravention (namely, Count 4) was dismissed. 

32. After arrangements had been made for the parties to undertake cross‑examination in separate rooms via the use of video link facilities, Ms Packer cross‑examined Mr Fulton. 

33. As I have explained during the course of various discourses with the parties on various occasions the matter has been before me, I made arrangements for the person (in this case Mr Fulton) who was the subject of cross‑examination to remain in the same courtroom in which the Court was convened and for the cross‑examiner (on that occasion Ms Packer) to be present in another courtroom in this building and joined by video link so that I could have available to me in the same room, as it were, the person whose credit was the subject of attack via cross‑examination.

34. After that process had been completed, Ms Packer informed me that she had intended to provide an affidavit for use.  Reference to page 51 of the Transcript of proceedings on that day makes it clear that Ms Packer told me that she had fully intended to submit an affidavit “for today” and had actually had problems with her old laptop and printer. 

35. Reference to what is captured in the Transcript from page 51 through to page 53 provides a clear record of the manner in which I determined, on that occasion, to take into account the fact that each of these parties to the current Application for Contravention are litigants in person. 

36. After affording to Ms Packer the opportunity to consider her position, she informed me that she would like to have a chance to complete the affidavit and annexures (to which she had previously referred) properly.  So much can be seen from a reference to page 53 of the Transcript of the appearance that day.

37. Further, (as is established by reference to the contents of page 54 of the Transcript of the appearance that day) given that Ms Packer had informed me that she was in the process or had fully intended to provide an affidavit that day, I informed the parties that, as it turned out, a day the following week had become available and that, given Ms Packer had done preparations but not completed them, I intended to adjourn the matter for a short period of time so that I would be in a position to finalise the hearing of the Application for Contravention.  Again, reference to page 54 of the Transcript is instructive.

38. The orders I made on 31 August 2017, as a consequence of Ms Packer’s request for the opportunity to have time to complete her affidavit and annexures, included the making of directions requiring that material be filed and served by her by 5 September so that I could resume the hearing on 7 September.  Consequently, I adjourned the hearing to 7 September 2017.

39. On 7 September 2017, the parties again appeared, both as litigants in person. 

40. It was apparent that Ms Packer had not complied with the directions made for the filing of her affidavit material by 5 September 2017.  She made an oral application for an adjournment on the basis that she had not completed her material. 

41. Reference to the Transcript of the proceedings that day, together with the Reasons for Judgment delivered orally and the orders made, clearly establish that the reason the matter was not able to be finalised on 7 September 2017 was as a consequence of Ms Packer’s application for an adjournment to enable her to file affidavit material:  in circumstances where, as I expressed on that occasion, my clear view and finding was that she had been aware of the content of the allegations of contravention by no later than about December 2016, had appeared before Registrar Spink in relation to the subpoena issue (to which I have already referred), had appeared and sought an opportunity to complete the preparation of affidavit material and had failed to comply with directions made on 31 August 2017 which afforded to her that opportunity.

42. Despite all of those facts and despite her non-compliance with earlier directions made, in a sense, to facilitate her request on 31 August 2017, and despite the fact, as I expressed in the Reasons for Judgment I delivered on 7 September 2017, that others may well have refused such oral application for an adjournment, I acceded to Ms Packer’s request.

43. A new set of directions were made.  Those required that Ms Packer file and serve any affidavit material she intended to rely upon by 15 September 2017.  The matter was adjourned for further hearing to 28 September 2017 and an order was made that the parties attend that hearing in person.

44. I record that Ms Packer complied with the Directions in relation to the filing of material.  It appears that, on 13 September 2017, she filed an affidavit from Ms Ms KK and an affidavit from Ms GG; that, on 15 September 2017, she filed an affidavit from Mr HH – those affidavits supplemented an affidavit from Mr JJ Packer earlier filed on 30 August 2017.  Ms Packer also filed two affidavits from herself on 15 September 2017.

45. On 27 September 2017 at 8.50 am, the parties were advised by the Court that, due to unforeseen circumstances, the matter could not be heard the next day and instead would be heard today.  The correspondence, which I shall mark as an Exhibit in the proceedings before me (which will be Exhibit 5), advised the parties that they were to attend the part heard hearing on 10 October 2017 in person.

46. Whilst I have specifically directed that I not be made aware of the entirety of the contents of email correspondence passing between either of the parties and the Case-Coordinator – nor have I read the same – I have asked that I be made aware of pertinent details in terms of chronology.  What follows is as a consequence of the information provided to me by my Associate at my request so as to enable me to set out, in these Reasons, my understanding of chronology.  My knowledge, as I have said and I emphasise, is limited to the provision of that information.  I have not read out‑of‑Court communications contained within any emails sent by any party to the Case-Coordinator or to my own Associate.

47. At 1.54 pm on 3 October 2017, Ms Packer replied to the Associate email.  Her email was not copied in to Mr Fulton. 

48. On 4 October 2017 at 10.24 am, the Case-Coordinator (to whom this matter has been allocated) emailed both parties.  Included within that correspondence was information that any request for any adjournment of the hearing today would need to be either with the consent of the parties and/or supported by an affidavit outlining the basis for such request. 

49. In addition, because, as I understand it, there was an issue raised by Ms Packer about the unavailability of her witnesses today, Mr Fulton was asked to inform the Court and Ms Packer whether he, in fact, required any of those persons for cross‑examination.

50. At 6.26 am on 9 October 2017, Ms Packer sent an email to the Case-Coordinator.  She copied Mr Fulton in to the email.  She advised that she intended to file an affidavit in support of her assertion that her witnesses are not available for cross‑examination today.  As I understand it, an unsworn document in the terms which Ms Packer, presumably, intended to swear was provided to the Case-Coordinator.

51. At 10.39 am on 9 October 2017, Mr Fulton emailed to advise that he did not require the witnesses in Ms Packer’s case because he had formed the view that their evidence, as contained in the affidavits filed, was not relevant to the contravention proceedings.  He advised that he had one question of Ms KK but, in essence, would accept the matter if she was not available for cross‑examination:  that is, by 10.39 am on 9 October 2017, Mr Fulton clearly advised that he did not require Ms GG, Mr HH, Mr JJ Packer and probably Ms Ms KK if she was unavailable to be cross‑examined today.

52. At 11.17 am on 9 October 2017, the Case-Coordinator advised the parties that the matter remained listed for hearing today and that their personal attendance was required.  Mr Fulton was asked to advise the Court whether he intended to appear from the Lismore Registry by video link – presumably, so that appropriate arrangements could be made to facilitate his appearance today.

53. At 2.06 pm yesterday (9 October 2017), Ms Packer emailed the Case-Coordinator.  The email was copied to Mr Fulton.  In the email she advised that she was not able to attend today, that her witnesses’ availability was between 13 and 17 November 2017 and that there was some issue of procedural fairness associated with their attendance for cross‑examination.  She also provided the sworn affidavit in support of the application for an adjournment as an attachment, although that affidavit has not been filed.  As I understand it, Ms Packer said that she had made attempts to upload the document, but was unsuccessful in them;  she advised that she could not take time away from her paid employment to appear today.

54. That email came after Mr Fulton had advised by email, sent at 11.46 am yesterday, that he intended to appear by video link from the Lismore Registry of this Court.

55. It is clear, as Mr Fulton confirmed this morning, that he does not require any of the witnesses in Ms Packer’s case.  In saying that, it should not be thought that he does not seek to cross‑examine Ms Packer:  but, of course, as a party, her attendance is required at the hearing.

56. Thus, it is clear to me that the unavailability of any of the people whose affidavits Ms Packer has filed, and in respect of which she seeks to rely in the Application for Contravention, does not prevent this hearing from continuing today. 

57. That is because Mr Fulton does not require them for cross‑examination.

58. In such a circumstance, there is no issue of procedural fairness which arises:  their evidence is contained in their affidavits, filed and served and sought to be relied upon by Ms Packer. 

59. Thus, the only thing that has prevented today being the conclusion of the hearing of the Application for Contravention is Ms Packer’s failure to appear in circumstances where notice was given to the parties on 27 September that the adjourned date would be today.

60. It is within that context that I have determined that the matter will proceed next Monday before me.  It is within that context, then, that I have determined that the appropriate orders are those which I have outlined:  namely, that the matter will proceed next Monday whether or not Ms Packer appears. 

61. I consider that the parties have had more than sufficient opportunity to appear.  There is nothing contained within the affidavit material relied upon by Ms Packer to provide details of her work.  There is the assertion contained, as I have said already, within information provided by email by her to the Case-Coordinator.  In any event, arrangements will simply have to be made.

1. To the extent that Ms Packer has previously asserted that Mr Fulton’s prosecution of the Application for Contravention is vexatious or forms part of a coercive, controlling expression of domestic violence, it is clear from the chronology of matters I have deliberately taken the time to express that the only reason this particular Application was not capable of being heard by me in its entirety on the first occasion it came before me (namely, on 11 August 2017) was as a consequence of Ms Packer’s failure to appear – albeit that that was supported by a medical certificate sent to the Court by email early that morning.

2. The reason it could not be completed on the adjourned date of 31 August 2017 was because Ms Packer had not completed her affidavit material.

3. The reason it could not be completed on 7 September 2017 was because Ms Packer had not completed her affidavit material and had not complied with Directions in relation to the same.

4. The reason it cannot be completed today is because Ms Packer has not appeared.

5. In those circumstances, then, the orders I consider appropriate are those which I have outlined and they will issue.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 October 2017.

Associate: 

Date:  10 October 201