Gorman & Gorman & Anor (No 2)

[2017] FamCA 262

FAMILY COURT OF AUSTRALIA

GORMAN & GORMAN AND ANOR (NO 2) [2017] FamCA 262

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment - Non-participation by a party - Adequate opportunity to participate

Family Law Act 1975 (Cth)

APPLICANT: Ms Gorman

FIRST RESPONDENT: Mr Gorman

SECOND RESPONDENT: Ms Fuller

INDEPENDENT CHILDREN’S LAWYER	Mrs A Evans
FILE NUMBER:	CAC 854 of 2016
DATE DELIVERED:	6 April 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 6 April 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Marsh, Robinson & McGuinness

SOLICITOR FOR THE FIRST RESPONDENT: No attendance

SOLICITOR FOR THE SECOND RESPONDENT: No attendance

Orders

1. The matter will proceed this day on an undefended basis.  

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 Gorman & Gorman and Anor 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 CANBERRA

FILE NUMBER: CAC 854 of 2016

Ms Gorman

Applicant

And

Mr Gorman

First Respondent

And

Ms Fuller
Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. The case is listed for final trial before me commencing today.  While the applicant and the Independent Children’s Lawyer have appeared, there is no appearance by either the mother or the father. 

2. The mother’s last involvement in the proceedings was by her attendance at an interview with a Family Consultant for the preparation of the Family Report on 5 October 2016.  She was represented at the Court event prior to this in September 2016.  Subsequently, in November 2016 a Notice of Ceasing to Act was filed by her solicitors who provided that her last known address was I House, a rehabilitation facility that the mother had indicated that she would be attending, and with the provision of an e-mail address for the mother. 

3. On 16 December 2016 I made orders setting the matter down for trial noting that the non-appearance of the parents or non-participation of the parents may not prevent the final hearing from going ahead.

4. The orders sent by the Court advising of the setting down of the matter were returned from the I House address.  Further correspondence was sent via e-mail to the e-mail address that had been provided, but there was returned no response.  No other address for service has been provided by the mother pursuant to Rule 8.06, noting that if the mother were to change addresses there was an obligation upon her to advise the Court and the other parties of that change. 

5. As at her last involvement the mother was aware that the Court proceedings were generally on foot, was aware that a report was being prepared by the Family Consultant and was aware that the primary issue in the case is whether or not the child would be living with the applicant.

6. The mother has not attended today and has made no apparent further step to participate in the proceedings.  That is, in the last six months, she has made no apparent step to participate in the proceedings.  

7. The requirement is to provide each of the parties with a reasonable chance to present their case.  For the mother that necessarily involves her being placed on adequate notice of the proceedings and being provided with an adequate time frame to allow her participation.  Here, given that the e-mail address provided on the Notice of Ceasing to Act has been sent correspondence that indicates the proceedings are on foot today, she may well be on notice that the trial is listed this week. 

8. However, it will be difficult for me to be satisfied that she is definitely aware that the proceedings are commencing today.  I can however be satisfied given her previous participation of her awareness of the proceedings generally.  I can be further satisfied that, as far as it can be ascertained, there has been no participation by her in the last six months and that accordingly she has not been deprived of any opportunity to participate. 

9. These are child related proceedings and are governed by the principles set out in s 69ZN of the Family Law Act 1975. It is mandatory for me to give effect to those principles. In giving effect to those principles I do not know what, if any, impact there may be on B (the child) occasioned by an adjournment of the proceedings. I expect that a further adjournment of the proceedings would place the applicant under further pressure but do not have direct evidence about that.

10. However, principle 5 requires that I conduct the proceedings without undue delay.  The applicant and the Independent Children’s Lawyer are ready to proceed and asked to do so.  If the mother had not been afforded a proper opportunity to participate in the proceedings, then a delay would be necessary.  However, I have concluded that she has been given such an opportunity and that further delay would be undue delay subject to my findings in respect of the ability of the father to be involved in the proceedings.  The matters will then proceed.

11. As for the father, his last involvement was his attendance on 6 September 2016.  On that occasion orders were made for the preparation of a Family Report and the father confirmed that the address at which he may be served documents or contacted was J Street, Suburb K.  The father did not attend the appointment for the preparation of the Family Report nor did he attend on 16 December 2016, which is the date on which this matter was set down for trial.  At that stage, it was noted that he was currently held at the L Centre, being the custodial facility located in the Australian Capital Territory.  Yesterday the Registry made enquiries of the L Centre and was advised that the father is currently held there.  The person who advised that the father was held there apparently held the rank of Superintendant but declined to provide that person’s name to the Registry staff.  At this stage there is a reasonable basis to be satisfied that the father is currently in custody.  The father has taken no apparent step in the proceedings since 6 September 2017, that is a period of seven months.  The question in this instance is whether or not the father has had adequate opportunity to present his case.  For him, that involves him being placed on adequate notice of the proceedings, having an adequate timeframe to prepare and, given that he is in custody, asking the question about whether or not there has been an inability on his part to participate. 

12. The father’s previous participation in the proceedings means that he is on notice the content of the proceedings involve the question of whether or not the child would go to live with the applicant rather than either of the child’s parents.  The father had full knowledge that the matter was moving towards a resolution of that issue.  This was emphasised by the step involved of ordering the preparation of the report.  He was involved in the process by which the Court made those orders.  He gave and was fully aware of the address that he had provided to the Court as to the place at which he may be contacted or have material sent to.  He has taken no apparent step to involve himself in the proceedings. 

13. A concern arises because of a history of incarceration.  I accept that incarceration can cause difficulties in relation to someone’s involvement in proceedings. 

14. However, further evidence has been taken today that indicates that as of 20 January 2017 the father was at liberty.  He had a telephone conversation with the applicant in which he indicated that he had been in jail but was not at that point in time.  He sought to visit the applicant and permission to visit the applicant was declined on the basis that there was in place a protection order.  He asked about his son and was asked about his time in jail.  Importantly, the applicant indicated that she had taken steps at M Centre, a local facility that supervises visits with children, for the father and the mother to be able to spend time with the child.  The applicant expressed this opportunity as being important “before we head to Court in April” and noted that, as on 5 April 2016, she had been involved in court proceedings on her daughter N’s birthday with the father, so too they would be involved in court proceedings on N’s birthday in 2017.  The father indicated that he would try to call M Centre.  The father also spoke to the applicant about having had access to the Suburb K home since his release from custody.  Exhibits A1, A2, A3 and A4 involve Facebook posts from which I infer that, for a period from January through to March 2017, the father was at liberty.  Accordingly, he has not been in a position where he has been incarcerated for the whole period of time since the matter was set down for trial.  In any event, the fact that he is currently in custody does not equate to an inability for him to contact the outside world or to contact Legal Aid in order to seek to obtain assistance in relation to these proceedings.

15. I conclude that the father, notwithstanding that he has spent periods of time in custody, has also been at liberty and with the passage of time since his last involvement has had sufficient opportunity to take a step in the proceedings such that if he intended to participate, the Court could have accommodated him by taking further steps to secure his attendance.  In coming to this conclusion I note that he has previously failed to attend Court events and failed to attend at the Child Dispute Conference and that he has filed no material in the case, being no affidavit material and no response.  This is the case even though he has been at liberty previously and has attended at least two of the Court events. Despite having done so, he has filed no material.  The absence of any steps taken by the father equates to an apparent non-participation by him rather than a failure by the Court to accord him the opportunity to participate.

16. I conclude that the Court proceedings may proceed as there has been no denial of natural justice to the father and I repeat the same comments made previously in relation to the application of the principles in child related proceedings. 

17. Accordingly, the matter may proceed today on an undefended basis.   

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 6 April 2017.

Associate: 

Date:  28 April 2017