HAGERTY & HAGERTY
[2019] FCCA 1997
•29 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAGERTY & HAGERTY | [2019] FCCA 1997 |
| Catchwords: FAMILY LAW – Parenting – undefended – where the father failed to comply with orders – where medical certificates were inadequate to establish inability to attend Court – sole parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 62B, 62G, 65D, 65DA, 65DAA, 68B, 90XZD Evidence Act 1995 (Cth) s.140 Federal Circuit Court Rules 2001 (Cth) rr.16.05, 24.07 Australian Passports Act2005 (Cth) |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Squire v Rogers (1979) 27 ALR 330 M & M(1988) FLC 91-979 Haset Sali v SPC Limited and Anor (1993) 116 ALR 625 N v S (1996) FLC 92-655 A & A & The Child Representative(1998) FLC 92-800 Allesch v Maunz (2000) 203 CLR 172 In the Marriage of JRD & MD (2000) 26 FamLR 731 Re W; Sex Abuse (Standard of Proof) (2004) 32 Fam LR 249 Goode & Goode (2006) FLC 93 – 286 Napier & Hepburn(2006) FLC 93-303 Tait & Densmore [2007] FamCA 1383 Mazorski & Albright (2007) 37 FLR 518 Godfrey & Sanders (2007) 208 FLR 287 M & S (formerly E) (2007) FLC 93-313 Johnson & Page (2007) FLC 93-344 Moose & Moose (2008) FLC 93-375 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Marvel [2010] FamCAFC 101 Farmer & Rogers [2010] FamCAFC 253 Harridge & Anor & Harridge[2010] FamCA 445 MRR & GR [2010] HCA 4 Jarrah & Fadel [2014] FamCAFC 14 Medlon & Medlon (No. 4) [2015] FamCAFC 70 Gazal & Belros [2015] FamCAFC 92 Elgin & Elgin (2015) 54 Fam LR 31 Banks & Banks (2015) FLC 93-637 Gorman & Huffman [2016] FamCAFC 174 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Yannes & Judkins [2019] FCCA 1656 |
| Applicant: | MS HAGERTY |
| Respondent: | MR HAGERTY |
| File Number: | SYC 4302 of 2016 |
| Judgment of: | Judge Morley |
| Hearing dates: | 30 April – 2 May 2019 |
| Date of Last Submission: | 2 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Longworth |
| Solicitors for the Applicant: | Sexton Family Law |
| No appearance for the Respondent |
| Counsel for the Independent Children's Lawyer: | Mr Jackson |
| Solicitors for the Independent Children's Lawyer: | Ark Law Lawyers |
ORDERS
The Application in a Case filed by the Respondent father on 22 April 2019 is dismissed.
That the Mother have sole parental responsibility for the children X, born … 2012, and Y, born … 2014 (“the children”).
That the children live with their Mother.
That the Father spend time with the children only as may be agreed between the parents in writing, signed by them both.
That subject to anything that may be agreed between the parents in writing, signed by them both, the Father is not permitted to communicate with the children other than by providing them, through their Mother, with cards, letters, or gifts, with such cards, letters, or gifts to be forwarded by the Father directly to the Mother and not directly to the children.
That after one month from the date of these orders, the Father may email the Mother, no more than once each month, for updates in relation to the children, including each child’s emotional, intellectual and medical needs, progress at school, social and physical development, and the Mother will respond by email to the Father about these matters within 21 days of receiving each such written request.
That within 14 days of receiving the children’s school reports, the Mother will email a copy of each report to the Father.
The Mother notify the Father by email as soon as practicable in the event of either of the children suffering a serious illness or having a serious accident.
That pursuant to section 68B of the Family Law Act1975 (Cth), and for the personal protection of X born … 2012, Y born … 2014, and Ms Hagerty (formerly known as Hagerty), the Father be restrained from:
(a)Attending either child’s school, school events, sporting activities and social events without the Mother’s prior written consent; and
(b)Coming within 100 metres of the Mother, her residence, her place of work, the children’s school and pre-school.
That both parties by injunction and restrained from:
(a)Denigrating or criticising the other parent or their family in the presence or hearing of the children, or allowing any third person to do so; and
(b)Discussing the proceedings in the presence or hearing of the children or allowing any third person to do so.
That the Mother is solely appointed to give consent to the issue of a passport for the children under the Australian Passports Act2005 (Cth) and for the renewal of each child’s passport at the Mother’s cost from time to time.
The Mother may take the children from Australia to travel overseas for a holiday provided that she gives to the Father at least 4 weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline (or other carrier) with whom the child will be travelling, members of the travelling party in the case of family holidays, the intended destination and the intended date and time of return and subject to the trip.
The Mother will hold the children’s passports in her safe custody.
The Mother keep the Father informed by written communication of a working email account for the Mother, and is to notify the Father of any changes to same from time to time.
The Father keep the Mother informed by written communication of his working email account and of the full address where he is living, and is to notify the Mother of any changes from time to time.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if either party contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the attachment to these orders and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hagerty & Hagerty is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4302 of 2016
| MS HAGERTY |
Applicant
And
| MR HAGERTY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings under the Family Law Act1975 (Cth) (“the Act”) between Ms Hagerty, as Applicant Mother (“the Mother”) and Mr Hagerty, as Respondent Father (“the Father”) concerning the children, X, born … 2012, aged six years and eleven months at the time of the hearing (“X”) and Y, born … 2014, aged four years and eleven months at the time of hearing (“Y”) (“the children”).
The issues for final hearing were the allocation of parental responsibility, the time that the Father would spend with the children and on what, if any, conditions, and overseas travel by the children with their Mother.
Background
The parties met in … 2001 and commenced cohabitation in about June 2002. They married on … 2010 and separated on 16 March 2016. Parties were divorced on 28 April 2018.
After being before the Court for one month short of three years, the matter came on for a final hearing over three days commencing 30 April 2019. At hearing, there was no appearance before the Court by or on behalf of the Father, though he forwarded a medical certificate to the Court on each of 30 April and 1 May 2019. For the reasons set out below the matter proceeded to an undefended hearing in the absence of the Father.
The Mother was represented on hearing by Mr Longworth of Counsel and the Independent Children’s Lawyer was represented by Mr Jackson of Counsel.
The Proceedings
The proceedings were commenced by the Mother filing an Initiating Application on 11 July 2016 seeking final and interim parenting orders, including a recovery order and leave for short service. The Mother has been represented by her solicitors throughout the proceedings.
The Father filed his Response to Initiating Application on 18 November 2016 seeking final and interim parenting orders. The Father was self-represented throughout the proceedings.
The Mother filed an Amended Initiating Application on 23 November 2016 seeking final parenting and property settlement orders. Despite an order made by Judge Boyle on 16 December 2016 that the Father file and serve an Amended Response, Financial Statement and affidavit by 10 February 2016, and a further order being made by Judge Harper (as His Honour then was) on 24 February 2017 extending the time for the Father to comply with that order until 4pm on 31 March 2017, the Father at no time filed an Amended Response or an affidavit addressing property settlement issues, and did not file his Financial Statement until 31 May 2017.
To dispose quickly of the history of the parties’ property settlement proceedings, I note that an order was made on 1 June 2017 that the parties attend a Conciliation Conference with a Registrar on 31 August 2017. The parties attended the Conciliation Conference with a Registrar and the matter was settled in principle and terms of settlement signed:
…to be held on the Court file awaiting the consent of the Superannuation trustee to the proposed splitting order.
When the matter came before Judge Harper (as His Honour then was) on 9 October 2017, there was no appearance by or on behalf of the Father and orders were made by His Honour in accordance with the terms of settlement that had been signed at the Conciliation Conference.
The operation of those orders was stayed up to and including 27 October 2017, with liberty granted to the Father to make any application to have the orders set aside on seventy-two hours written notice to His Honour’s Chambers, up to and including 27 October 2017, and an order that the solicitor for the Mother notify the Father of the orders made that day by express post and email, in accordance with the details provided by the Father on his Notice of Address for Service filed 2 November 2016.
No application was made by the Father and, accordingly, the stay of the property settlement orders expired and those orders took effect as final orders.
Though it makes no matter in this case, I do wish to comment on the note referred to above from the Conciliation Conference when the terms of settlement signed by the parties were noted to be “held on the Court file awaiting the consent of the superannuation trustee to the proposed splitting order.”
It appears to have been the view of many practitioners and many Superannuation fund trustees since 2001, when Part VIIIB relating to “Superannuation Interests” was inserted into the Act, that the purpose of providing procedural fairness to the trustee of a Superannuation fund pursuant to section 90XZD of the Act is to obtain the trustee’s consent to the proposed order. That is not the purpose. The purpose of the requirement under that section that the trustee be accorded procedural fairness is so as to make the order, when made, binding on the trustee.
If the order is expressed to be so binding, and the procedural fairness requirement is so that the trustee can express any disagreement or concerns in relation to the making of the order itself, including as to the proposed wording of the order, it does not give the trustee a right or standing to consent to or oppose the making of the proposed order unless the trustee seeks to become a party to the proceedings and is made a party to proceedings. Consent of the trustee of the relevant superannuation fund is not a requirement for an order to be made. The only requirement under section 90XZD is that the trustee be accorded procedural fairness if the proposed order is expressed to be binding on the trustee.
I also note rule 24.07 of the Federal Circuit Court Rules 2001, that provides that if a party seeks a flagging or splitting order, the party must immediately after filing their Application, Response or Reply, serve a sealed copy on the trustee of the subject superannuation fund, and if a flagging or splitting order is made, the Applicant must serve a copy of the orders on the trustee of the subject fund. This rule goes further than section 90XZD, but still does not give the trustee any power of veto.
The Basis for the Undefended Hearing
It is necessary to trace the course of these proceedings step-by-step as part of the basis upon which I found on 1 May 2019 that the matter should proceed to final hearing of the parenting issues on an undefended basis as against the Father.
The parties separated on 16 March 2016. The children live with the Mother and spent time with the Father by arrangement between the parents from time to time until 28 June 2016, when the Father collected the children from day-care and retained them contrary to arrangements between the parents.
The commencement of these proceedings by the Mother was prompted by the Father’s retention of the children from her on 28 June 2016.
The Mother filed her Initiating Application on 11 July 2016, obtained leave for short service of the Application and supporting documents by 13 July 2016, and a first listing for the Court on 30 August 2016. The Initiating Application and supporting documents were served on the Father at 6:25pm on 13 July 2016, per the affidavit of service of Mr E, licensed process server, filed 26 July 2016, attaching an Acknowledgement of Service.
The Father returned the children to the Mother’s care on 28 August 2016, two days before the first return date of the Mother’s Initiating Application before the Court.
The matter was before Judge Boyle for its first return date on 30 August 2016. The Mother was represented and the Father appeared in person.
The matter was listed for interim hearing at 2:15pm on 2 November 2016, with parties ordered to attend a Child Dispute Conference on 27 October 2016. The Father was ordered to file and serve a Response and affidavit by 11 October 2016. He did not comply with the order.
An order was made appointing an Independent Children’s Lawyer for X and Y.
Interim orders were made for the children to live with their Mother, restraining the Father from removing the children from the care of their Mother, and for the Father to spend time with the children for a period of eight weeks each Sunday from 9:30am until 4:30pm, supervised by one or more of four named persons, with the Father and a supervisor to collect the children from and return the children to the Mother at a named address at Suburb R, NSW.
The parents attended the Child Dispute Conference with Family Consultant Ms F on 27 October 2016. Ms F produced a Memorandum to Court. The memorandum noted that:
The co-parenting relationship is poor.
The Memorandum also noted:
X and Y are caught in the middle of parental conflict which can potentially result in significant psychological difficulties for them. Consequently, Orders will be required to protect the children from this as much as possible.
The Family Consultant notes that children who successfully live in an equal time arrangement, as Mr Hagerty has proposed, typically have parents who exercise a high degree of parental cooperation. By Mr Hagerty and Ms Hagerty’s accounts, it would appear that such an arrangement would likely not be feasible, at present, given the significant conflict reported by both parties.
The matter was again before Judge Boyle on 2 November 2016, listed for interim hearing, and the Mother was represented by Mr Longworth of Council, the Father appeared on his own behalf and Ms Rutkowska appeared on her own behalf as Independent Children’s Lawyer.
The matter was relisted for interim hearing on 16 December 2016 and a further order was made that the Father file and serve a Response and any affidavits on which he intends to rely by 4pm on 17 November 2016, the Father having failed to comply with the order in that regard made by Her Honour on 30 August 2016. A further order was made varying the Father’s spend time with order, made on the previous occasion, so as to remove the words limiting that order to a period for eight weeks from the order in making the order “until further order”.
The Father filed his Response, Notice of Risk and affidavit on 8 November 2016.
On 23 November 2016, the Mother filed an Amended Initiating Application adding the issue of property settlement between the parties.
On 16 December 2016, the matter was before Judge Boyle and all parties appeared, with the Father appearing self-represented. The matter was adjourned to a call-over on 11 April 2017 for the allocation of hearing dates.
The Father was ordered to file and serve an Amended Response, Financial Statement and affidavit by 10 February 2017. He did not comply with the order.
Interim orders were made for the children to live with their Mother, restraining the Father from removing the children from their Mother’s care, and for the Father to spend time with the children each Sunday from 9:30am to 4:30pm, supervised by one of five named persons, or as otherwise agreed in writing between the parties, with the supervisor to collect the children from their Mother’s home at the start and return the children to the Mother at the Father’s home at the end of his time, with the Father to not be present during changeovers. Each of the named supervisors were to complete an undertaking provided to them by the Independent Children’s Lawyer.
The Mother was ordered to facilitate the children having Skype communication, or telephone, or FaceTime communication with the Father each Wednesday between 6:30pm and 7:00pm, with the Mother permitted to terminate the call if the Father sought to engage the Mother during the course of the call.
On 1 February 2017, the solicitors for the Mother, the Independent Children’s Lawyer and the Father were personally notified by email from the Chambers of Judge Henderson (as Her Honour then was) that the matter had been:
…moved to a call-over for the allocation of final hearing dates on 24 February 2017 at 9:30am.
The matter was changed from the docket of Judge Boyle to the docket of Judge Harper (as His Honour then was).
On 24 February 2017 the matter was before Judge Harper. The Mother was represented by her solicitor and the Independent Children’s Lawyer was represented by an agent. There was no appearance by or on behalf of the Father.
An order was made for preparation of a Family Report pursuant to section 62G of the Act, and the time for the Father to comply with the order made by Judge Boyle on 16 December 2016 in relation to his filing of an Amended Response, Financial Statement and affidavit was extended to 4:00pm on 31 March 2017. The father did not comply with the order.
The matter was adjourned to 19 April 2017 for mention. The costs of the Mother and the Independent Children’s Lawyer were reserved and the Mother was excused from personal attendance on 19 April 2017 provided she was legally represented. The Court noted that:
The solicitor for the Mother caused her office to contact the Father this morning but he did not indicate any intention to attend Court today.
On 13 April 2017, the Father sent an email to the solicitors for the Mother seeking their consent to adjourn the mention set down on 19 April 2017 until mid to late May, due to computer difficulties he was experiencing which had caused him delay in filing his Response, and because he was in the process of applying for a grant of Legal Aid. The Mother’s solicitor was absent from her office on 13 April 2017 but a reply email was sent to the Father by an assistant at her firm indicating that the Mother’s solicitor was on leave and that the email would be brought to her attention on 18 April 2017.
On 18 April 2017, the Father sent an email to the Associate to Judge Harper, with a copy to the Mother’s solicitors, seeking to adjourn the matter past 19 April 2017 for a period of six weeks due to his computer difficulties. On that day an email was sent to Judge Harper’s Associate, by the Mother’s solicitor, indicating consent to the request for adjournment on the basis that the Father’s amended documents are served prior to the next Court date.
An email was also forwarded to the Associate on that date by a solicitor on behalf of the Independent Children’s Lawyer. Parties were notified on that date by His Honour’s Associate that the matter was vacated from 19 April 2017 and listed for mention on 1 June 2017.
The Father filed a Financial Statement on 31 May 2017, and filed an affidavit with the Financial Statement. Perusal of that affidavit shows that the contents did not relate to property settlement issues, but related entirely to the parenting issues between the parties.
The matter was before the Court on 1 June 2017. The Mother was represented by her solicitor, the Father appeared self-represented and the Independent Children’s Lawyer appeared on her own behalf. An order was made for the parties to attend a Conciliation Conference on 31 August 2017 with a Registrar, and the matter was adjourned to 25 September 2017 for mention. The Conciliation Conference took place on 31 August 2017 and the matter was settled in principle and terms of settlement signed by the parties. Those terms of settlement were held with the Court file awaiting the “consent” of the Superannuation trustee to a proposed superannuation splitting order.
On 4 September 2017, the parties were notified by email from the Chambers of Judge Harper that the mention date of 25 September 2017 had been vacated and the matter was listed for mention on 9 October 2017, due to changes in the judicial calendar.
On mention of the matter before Judge Harper on 9 October 2017, the Mother was represented by her solicitor, the Independent Children’s Lawyer appeared on her own behalf, and there was no appearance by or on behalf of the Father. His Honour dealt with the final property settlement orders as outlined earlier in these reasons. The matter was adjourned to 7 February 2019 at 9:30am for mention, and orders were made that the solicitor for the Mother notify the Father of the orders made that day by express post and email using the contact details for post and email nominated by the Father in his Notice of Address for Service.
On 16 November 2017, an order was made in Chambers releasing the Family Report prepared by Ms G dated 13 November 2017, to the parties, their legal representatives and the Independent Children’s Lawyer.
On 7 February 2018, the matter was mentioned before the Court and was adjourned to a date to be advised to the parties for the purposes of call-over to consider allocation of final hearing dates. At that mention the Mother was represented by her solicitor, the Father attended self-represented and an agent appeared for the Independent Children’s Lawyer.
On about 21 March 2018, a letter was sent by the Court to the solicitors for the Mother and by email to the husband, at email address …, notifying the parties that the matter had been listed for call-over on 2 May 2018 at 2:15pm before Judge McGuire. On the Court file is a copy of a letter from the solicitors for the Mother to the Father addressed to PO Box 3313, Suburb R NSW, forwarded by express post, and forwarded by email to …, which would appear to be an incomplete email address.
I note that the Response to Initiating Application filed by the Father on 18 November 2016 was blank as to the “Address for service in Australia” section and all locational contact details in relation to the Father as the Respondent, and that the Notice of Address for Service for the Father on the Court file is completed in handwriting, does not bear a Court filing mark either by stamp or electronic imprint, and is dated 2 November 2016; a date when the matter was before the Court and the Father was in attendance. That Notice of Address for Service lists the Father’s address for service as PO Box 3313 Suburb R NSW, and ….
The matter was before Judge Henderson on 2 May 2018. The Mother appeared with her solicitor, an agent appeared for the Independent Children’s Lawyer and there was no appearance by or on behalf of the Father. The matter was listed on 19 July 2018 at 9:30am for undefended hearing. An order was made that:
If the Father fails to attend on the next occasion the matter will proceed on an undefended basis.
On 1 June 2018 an email was forwarded from the Associate to Judge Henderson to the Mother’s solicitors and to the Independent Children’s Lawyer, reading:
Due to unforeseen circumstances, the undefended hearing has been moved from 19 July 2018 to 27 July 2018 at 9:30am. Could someone please notify the respondent of the date change please?
There is no detail that I could find on the Court file confirming that notice was conveyed to the Father.
On 24 July 2018, an order was made moving the matter to 9:30am on 30 August 2018 for undefended hearing with the Courts Outcome Sheet noting “Change to Chambers calendar”.
By some means, the Father must have been made aware of the changes to the dates for mention before the Court because when the matter was before Judge Henderson on 30 August 2018, the Father appeared self-represented, the Mother appeared with her solicitor and the Independent Children’s Lawyer appeared on her own behalf. The matter was listed into a call-over before Judge Harper on 27 September 2018 and an order was made for the Father to file an updated Notice of Address for Service on that day, 30 August 2018, in the Court Registry. There is no record of a Notice of Address for Service having been filed by the Father on or at any time after 30 August 2018. He did not comply with the order.
On 27 September 2018 the matter was before Judge Harper. The Mother’s solicitor appeared on her behalf, the Father appeared self-represented and the Independent Children’s Lawyer appeared on her own behalf. An order was made pursuant to section 62G(2) for preparation of an updating Family Report, and the matter adjourned to 12 March 2019 for final hearing for an estimated three days. A direction was made that each party file and serve a trial affidavit and one affidavit for each witness on which they intend to rely by no later than 4:00pm on thirty-five days prior to the hearing date. For a hearing listed to commence on 12 March 2019, the direction required the trial affidavit to be filed by no later than 4:00pm on 5 February 2019. A notation was made by His Honour that:
The Respondent Father has indicated an intention to call seven witnesses.
The Mother filed her trial affidavit on 3 February 2019, and filed an affidavit by her brother, Mr D, which she intended rely on final hearing on 25 January 2019. The Mother filed a Further Amended Initiating Application on 12 February 2019.
No trial affidavit by the Father and no affidavits by any supporting witnesses for the Father were filed by the Father at all. He did not comply with the order.
Events leading up to Final Hearing
On 6 March 2009, Judge Harper made an order in Chambers releasing a copy of the updated Family Report by Ms H, dated 5 March 2019, to the parties, their legal representatives and the Independent Children’s Lawyer.
On 6 March 2019 at 2:11pm, the Associate to Judge Harper forwarded an email to the solicitors for the wife, to the Father and to the Independent Children’s Lawyer advising that the hearing dates of 12, 13, 14 and 15 March 2019 had been administratively vacated and that the matter was listed for final hearing on 30 April 2019 for an estimated hearing time of three days. The email advised that:
Orders with the adjourned date will be available on the ComCourts Portal in due course. Could parties please confirm receipt of this email.
At 4:44pm on that day, an email was sent by the Father from email address … to the Associate to Judge Harper, with copies to the solicitors for the Mother, the Independent Children’s Lawyer and to another email address of the Father, …, reading:
Subject: Re: Adjournment: Hagerty SYC4302/2016 Thank you very much for the update your honour. Kind regards, Mr Hagerty.
On 8 March 2019, an order was made by Judge Harper in Chambers vacating the hearing dates of 12 to 15 March 2019, and adjourning the matter to 30 April 2019 at 10:00am for final hearing for an estimate of three days. Those orders were made, as the Court noted, “Due to changes in the judicial calendar …”, almost certainly in view of His Honour’s then impending elevation as a Justice of the Family Court of Australia announced 11 March 2019.
On Friday, 5 April 2019 at 1:39pm, the Father sent an email to my Associate, copied to the solicitors for the Mother and to the Independent Children’s Lawyer, in the following terms:
Dear Your Honour,
I am sending this email to you to request that this matter be adjourned until after July 5, 2019 when my matter that is listed for hearing in Suburb K Local Court will be finalised.
I have also been made aware that there have been changes made to the legislation where I would not be able to cross examine my ex-wife (formally Ms Hagerty). As this is the case I would not be able to participate in a fair trial and would be majorly disadvantaged. In order to eliminate that issue I am in the process of applying for Legal Aid to represent me.
As you can appreciate there is a lot of paperwork that has been filled [sic] in this matter over the last 3 years and it would take someone from Legal Aid (once it’s granted) at least 100 – 200 hours to go through the numerous affidavits that have been filled [sic], numerous statements to the Police withdrawal would need to be reviewed, understood and responded to in order for me to participate in a fair trial.
As this is a very important matter I believe that my request is reasonable as I wouldn’t want to be disadvantaged during the trial which could have an detrimental impact on the result the person that has filled [sic] the majority of the affidavits isn’t able to be cross-examined.
Regards,
Mr Hagerty
X and Y's Dad
The email was sent by the Father from email address ….
An email was sent to the Father in response by my Associate on Monday, 8 April 2019 at 3:35pm, indicating that unless an adjournment was with the consent of all parties it was not a matter appropriate to be dealt with in Chambers, and seeking information as to whether the requested adjournment was consented to by all parties. The email included the following:
Please also be aware that final hearing dates are not lightly listed and the Court is tightly listed for all matters and even if the parties are agreeable to an adjournment, the Court cannot guarantee that this request can be met without significant delay.
Later on Monday, 8 April 2019 at 3:41pm, an email was received by my Associate from the solicitors for the Mother, also sent to the Father’s email address from which he had sent his email, and copied to the Independent Children’s Lawyer, indicating that the Mother did not consent to an adjournment of the hearing.
On 1 April 2019 at 1:50pm, a Telephone/Video link Attendance Request was filed on the Commonwealth Courts Portal by the solicitors for the Mother requesting that the Mother’s witness, Mr D, be allowed to attend the final hearing on 30 April to 2 May 2019 by telephone on his mobile telephone as:
Due to overseas work commitments, Mr D is unable to attend in person to give evidence at the revised defended hearing dates.
Copies of email correspondence between the solicitors for the Mother and the Independent Children’s Lawyer, in between the solicitors for the Mother and the Father, were attached and it was indicated that the Independent Children’s Lawyer did not object to the request, but that the Father did object to the request.
The Father’s application to adjourn the Final Hearing
At 6:52pm on 22 April 2019, the Father E-filed on the Commonwealth Courts Portal an Application in a Case seeking orders as follows:
a) Adjourning the case until after July 5 when criminal charges against me are finalised.
b) Adjourning the case until all eyewitnesses are able to attend in person so they are able to view video footage and be cross examined.
c) Adjourning the case so I am able to apply for Legal Aid as I am unable to cross-examine my ex-wife due to changes in the legislation.
d) Mediation to take place and settle outside of Court
e) That the applicant (Mother) no longer terminates the Court ordered FaceTime calls and abide by the interim orders.
f) That the applicant (Mother) ceases to alienate me from our children.
The Application in a Case was supported by an affidavit sworn or affirmed by the Father at Suburb S on 18 April 2019, the whole of the relevant text of that affidavit being as follows:
a) I am applying for an adjournment of the final hearing due to changes in the legislation as I am unable to cross examine my ex-wife due to being self-represented at this stage and am seeking time to apply for Legal Aid.
b) As Mr D is unable to attend on 30 April and he is a witness that will be cross examined, it’s imperative that Mr D attends in person as there is video footage that will be viewed.
c) See Application in a case for information on the orders sought.
The Application in a Case was listed before me at 9:00am on 30 April 2019, the first day of the final hearing.
The “changes in the legislation” referred to by the Father in his email of 5 April 2019, and in both his Application in a Case and affidavit in support no doubt referred to section 102NA of the Act, which provides that unrepresented parties will not be permitted to personally cross-examine another party if there are allegations of family violence and certain other circumstances apply (either party having been charged with or convicted of an offence involving violence or threat of violence involving the other party, a final Family Violence Order applies to both parties, an injunction has been made under section 68B or section 114 of the Act for the personal protection of one party against another, or the Court makes an order that personal cross-examination should not be permitted).
That section was inserted into the Act by the Family Law Amendment (Family Violence and Cross-Examination of Parties) Act 2018 and came into force on 10 March 2019, but only applies to cross-examinations that take place on and after 11 September 2019.
At 1:23pm on Monday, 29 April 2019, an email was received by my associate from the Father’s email address …, copied to the solicitors for the Mother and the Independent Children’s Lawyer with text as follows:
Dear Your Honour,
As I hadn’t received a response in relation to the application that I feel [sic] to have the matter adjourned until after July 5 when the criminal proceedings against me will be finalised that my ex-wife refers to in order to discredit me, I called the Court for an update this morning. I was informed that my application hadn’t been processed and the lady couldn’t understand why and was going to have it looked at as a matter of urgency.
During that conversation I informed the person that I spoke to that I wasn’t well and won’t be able to attend Court tomorrow anyway.
Please find attached my Doctors certificate.
Regards,
Mr Hagerty
An attachment to the email was a document headed “Medical Certificate” bearing date 29 April 2019 in the following terms:
THIS IS TO CERTIFY THAT Mr Hagerty has a medical condition and will be unfit for work or Court attendance from 29/4/2019 to 30/04/2019 inclusive.
Please do not hesitate to contact if there are concerns.
Dr K, FRACGP
The document was signed.
The matter was called before the Court for the final hearing very shortly after 10:00am on 30 April 2019. The Mother appeared represented by Mr Longworth of Counsel, instructed by a solicitor. The Independent Children’s Lawyer appeared represented by Ms McConaghy of Counsel. There was no appearance by or on behalf of the Father.
I established that both Counsel present had seen the Medical Certificate sent to the Court the previous day by the Father. Mr Longworth on behalf of the Mother, pressed for the matter to proceed to final hearing on an undefended basis.
The email received by my Associate from the Father and detailed above was tendered on behalf of the Mother and marked as Exhibit 1. The medical certificate for the Father dated 29 April 2019 was tendered on behalf of the Mother and marked as Exhibit 2. A case outline on behalf of the Mother relating to the Father’s application for adjournment of the final hearing, and the Mother’s application that the matter proceed to final hearing on an undefended basis was tendered on behalf of the Mother and marked as Exhibit 3.
I considered that the medical certificate dated 29 April 2019 was inadequate to establish as a matter of evidence that the Father was unfit to attend at the Court and conduct a hearing on his own behalf as a self-represented litigant on 30 April 2019, and I was pressed by both Council for the Mother and Counsel for the Independent Children’s Lawyer to proceed that day on an undefended basis. I decided to err on the side of caution when it came to the question of natural justice to the Father, despite his failure to comply with Court orders, because of the bare information contained in the medical certificate.
I made the following orders:
1. The matter is adjourned to 10:00am on 1 May 2019 for hearing.
2. On the adjourned date, the Respondent Father is directed to be in attendance at this Court at 10:00am tomorrow, in the absence of which the matter may proceed in his absence on an undefended basis.
3. In the event that the Respondent Father seeks to have the final hearing of this matter adjourned from 1 May 2019 on the basis of any medical condition that may affect his ability to attend and conduct a hearing on that day, then the Respondent Father must provide to the Court evidence at least by way of a comprehensive medical certificate giving specific detail of all and any medical conditions asserted to be affecting the Respondent so as to render him unfit to so attend Court, and an exposition by the relevant medical practitioner asserting how the relevant medical condition or conditions do render the Respondent Father unfit to attend Court and conduct the hearing.
4. Grant leave to the Independent Children’s Lawyer to issue an urgent subpoena to Dr K and/or Medical Centre Suburb L , NSW,.
5. Grant leave for urgent service of the subpoena by 5pm today, without subpoena to be made returnable on 1 May 2019 at 10am.
6. Grant leave to the legal practitioners of the Applicant wife to inspect the files produced by Suburb K Local Court and by Suburb J Local Court produced in these proceedings under registry to registry request and photocopy access limited thereto do any orders on file.
7. Direct that the legal representatives for the Applicant wife forward a copy of these orders to the husband by email to … by 2pm today.
8. Reserve the costs of the Applicant of today.
9. Reserve the costs of the Independent Children’s Lawyer of today.
THE COURT NOTES:
A. A copy of these orders will also be forwarded to … by the Court Registry.
The matter was again called before the Court at 10:10am on 1 May 2019. Mr Longworth of Counsel appeared for and with the Mother, and Mr Jackson of Counsel appeared for and with the Independent Children’s Lawyer. There was no appearance by or on behalf of the Father. The Father’s name was called three times outside the door of the Court and there was no appearance.
I was handed by my Associate a further medical certificate that had been received from the Father. The document was headed “Medical Certificate”, was dated 30 April 2019 and was in the following terms:
THIS IS TO CERTIFY THAT Mr Hagerty has a medical condition and will be unfit for work from 30/04/2019 to 01/05/2019 inclusive.
He is currently suffering from a respiratory tract infection with symptoms including: hoarse voice, eustachian tube dysfunction (affecting quality of hearing), sore throat, congestion and cough.
He does not feel well enough to attend Court and it would be difficult for him, mainly as he is representing himself in an important matter.
Dr K, FRACGP.
The document was signed.
I had before me the Father’s Application in a Case filed 22 April 2019 and his affidavit sworn or affirmed 18 April 2019 and filed with the application, they coming woefully short of sufficient evidence to ground the application. I did not have the Father before me to press that application. The medical certificate dated 30 April 2019 inherently went to an application by the Father to either adjourn the final hearing again to 2 May 2019, to vacate the hearing dates altogether, or adjourn the matter for mention on a future date.
I advised Counsel that my preliminary view was that the issue of the Father’s fitness to attend and conduct the hearing on his own behalf needed further evidence before I could properly consider granting an adjournment, and that I wished to make the effort to seek that further evidence by having Dr K contacted by telephone in open Court and, if she consented, cross-examined.
Counsel for the Mother submitted that the medical certificate dated 30 April 2019 did not comply with the order made by me on 29 April 2019 and that the matter should proceed to undefended hearing without further ado. Council cited Aon Risk Services Australia Limited v Australian National University.[1]
[1] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
Counsel for the Independent Children’s Lawyer submitted in relation to the Father’s application, or applications, for adjournment that the matter concerned competing applications for final parenting orders and the main test to be considered in relation to adjournment of the final hearing was the best interests of the children. Counsel submitted that the best interests of the children “will take a backward step” if the final hearing is vacated and the matter adjourned to a future date.
With the agreement of both Counsel to my proposal, Dr K was contacted by telephone in open Court and placed on loudspeaker. I explained the purpose of the Court’s call to her, read to her the texts of the two medical certificates that she had provided to the Father dated 29 April 2019 and 30 April 2019, and asked if she would consent to being cross-examined by Counsel for the Mother and Counsel for the Independent Children’s Lawyer. Dr K did consent to that course. Dr K was sworn in, and after a short adjournment to enable the doctor to attend to a patient who was actually with her in a consulting room at the time of the telephone call, she was cross-examined first by Mr Longworth for the Mother and then by Mr Jackson for the Independent Children’s Lawyer.
During cross-examination by Mr Longworth for the Mother, Dr K gave evidence that she had seen the Father for a consultation on 29 April 2019, that the consultation took about ten minutes, that the Father had no difficulty in moving about, that his manner of speech was “appropriate”, was not laboured and that she did not prescribe any medication for him.
Dr K gave evidence that the Father requested a medical certificate specifically in relation to Court attendance on the basis that he did not feel well enough to attend Court, that he was self-represented before the Court, that he was not feeling his best and would not be able to think clearly.
In relation to the medical certificate dated 29 April 2019, being a certification that the Father was unfit for work or Court attendance on 29 and 30 April 2019, Dr K gave evidence that:
…usually with these symptoms we give a certificate for 1 to 2 days and if it is not resolved we get the patient to come back and be reviewed.
Dr K agreed that the second medical certificate dated 30 April 2019 was a more expanded version of the first medical certificate. She gave evidence that she saw the Father again on 30 April 2019 at 2.55pm for about ten minutes, and that though he was walking easily he had a towel with him and appeared to be using a towel as if he was wiping away perspiration. She took his temperature, which was normal. When asked if the Father appeared to be perspiring, Dr K answered:
No, he did not appear to be sweating.
In answer to a question as to whether on either day the doctor had observed the Father to be impaired in being able to hear and understand her she replied:
No.
She gave evidence that the symptoms complained of by the Father was a sore throat and that on examination of his throat she observed some redness.
In cross-examination by Mr Jackson for the Independent Children’s Lawyer, the doctor gave evidence that during her consultation with the Father on 29 April 2019 she did not observe or diagnose any cognitive impairment, and that when she took the Father’s temperature on 30 April 2019 it was 36.7 degrees. When it was put to the doctor that that temperature reading was not consistent with a respiratory tract infection she gave evidence that it can be consistent with a respiratory tract infection.
The doctor clarified that the assertion in the first medical certificate that the Father would be unfit for work or Court attendance on 29 and 30 April 2019 was not of itself an assertion that the Father would be fit for Court attendance on 1 May 2019. Rather, it was following a protocol of giving a patient with the symptoms asserted by the Father two days to get over it, and if he still felt unwell, to come back and be reviewed with a view to a further certificate.
The doctor confirmed that the same reasoning applied to this assertion on the second medical certificate in relation to the Father being unfit for work on 30 April and 1 May 2019. When asked by Mr Jackson if she was aware what would be required of the Father to run his own case before the Court in a hearing on parenting issues under the Family Law Act, the doctor gave evidence that she did not really know but had presumed it would involve being on the witness stand, being asked questions, and asking questions of persons on the witness stand.
This matter was commenced on 11 July 2016. The hearing was to commence on 30 April 2019. The matter had been before the Court for a little less than three years. There had been several occasions, detailed above, when the Father had failed to comply with Court orders in relation to filing of documents, including in relation to filing trial affidavits for the final hearing, and there had been occasions when the Father had failed to appear before the Court; one of those occasions leading to the matter being listed for undefended hearing on 19 July 2018.
X was six years and eleven months of age and Y was four years and eleven months of age at the time of hearing. The proceedings had lasted for a bit less than half of X’s life and for three-fifths of Y’s life. Court resources had been used in preparation of a Family Report, dated 13 November 2017 by Ms G, a Regulation 7 Family Consultant, and that report had become outdated sufficient for an order to be made for an updated Family Report on 27 September 2018. This led to further use of Court resources for preparation of the Family Report dated 5 March 2019, by Family Consultant Ms H; Ms G no longer being available for that purpose.
The first medical certificate dated 29 April 2019 was wholly inadequate as evidence that the Father was unfit to attend Court and to conduct his case on his own behalf on 29 April until 2 May 2019. It gave no name to the "medical condition” he had or detail as to why that medical condition rendered him unfit. It could not be given much weight at all as evidence in support of the Father’s application to adjourn the final hearing.
The second medical certificate dated 30 April 2019 was also inadequate. The order made on 30 April 2019 required that any such medical certificate tendered by the Father in support of his application for adjournment had to give specific detail of the medical conditions asserted to be affecting the Father so as to render him unfit, which it purported to do, but also required that any medical certificate must explain how the said medical conditions rendered the Father unfit to attend Court and conduct the hearing.
The medical certificate did not do that. The medical certificate certified that the Father:
…will be unfit for work from 30/04/2019 to 01/05/2019 inclusive.
It did not certify that the Father was unfit to attend Court or unfit to attend Court and conduct his case on his own behalf. It merely stated:
He does not feel well enough to attend Court and it would be difficult for him, mainly as he is representing himself in an important matter.
Stated in those terms, the medical certificate conveys what the Father told the doctor about how he feels rather than providing doctor’s assessment of the effect on the husband’s ability to attend Court and to conduct the case on his own behalf in consequence of the medical conditions from which he was suffering.
On 30 April 2019, I made an order directing the Father to be in attendance at Court at 10:00am on 1 May 2019, in the absence of which the matter may proceed in his absence on an undefended basis. There is certainly question as to whether or not, as a Judge of this Court, I have the power to order a party to attend at Court on a certain date at a certain time only because the matter is before the Court on that day, and not being one of the matters referred to by Judge Jarrett in Yannes & Judkins,[2] where I would have a power to compel attendance.
[2] Yannes & Judkins [2019] FCCA 1656.
Nevertheless, in light of the other order I made on that day requiring the legal representatives for the Mother to forward a copy of the orders to the husband by email to the email address he had used on several occasions to contact the Court and the other parties, and in light of evidence given by Dr K during her cross-examination, that in requesting the second medical certificate on 30 April 2019 the Father advised her that he had received some written materials specifying what was to be included in a subsequent medical certificate, I can find that on 30 April 2019 the Father was aware of the orders made by me on that day and accordingly, was aware that I had directed him to be in attendance at Court at 10:00am on 1 May 2019, or the matter may proceed in his absence on an undefended basis.
The Father was not present at Court on 1 May 2019 and he was not represented before the Court on that day. The Father was able to get to Suburb L to attend the Medical Centre on both 29 and 30 April 2019, but did not get to the Court on 30 April or 1 May 2019 to at least press his application for adjournment.
I find that the two medical certificates are not sufficient evidence for me to find that he was incapable of so attending Court. Whether or not he was capable of attending Court and conducting a final parenting issues hearing, including cross-examining and undergoing cross-examination is a different question, but I also find that the two medical certificates are not sufficient evidence for me to find that he was incapable of so doing.
Natural justice is the golden thread that runs through our legal system. What is often referred to as that golden thread, the right to silence, is really just a part of natural justice. The requirement that there must always be natural justice unless legislation clearly and unambiguously provides that something may be done without ensuring natural justice is not just the foundation stone of our legal system, but is one of the most important elements in the rule of law.
As Kirby J said in Allesch v Maunz[3] at paragraphs 35 and 36:
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed in the statutes creating Courts and adjudicative tribunal is. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a Court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers.
[3] Allesch v Maunz (2000) 203 CLR 172.
His Honour went on to say at paragraphs 38 to 40:
[38] . . . . Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
[39] Decision-makers, including the Courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
[40] Nor are Courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by Courts of their functions must be weighed against unreasonable delay in concluding litigation.
Clearly, what is required to afford due process in any given case is determined by reference to the facts and circumstances of that case.
Also pertinent here are comments by the High Court in Aon Risk Services Australia Limited v Australian National University[4] per French CJ at paragraph 5:
[5] In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the Court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed.
[4] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
The comments apply equally to applications for adjournment and other procedural matters.
In Squire v Rogers,[5] Deane J, (as a member of the Federal Court) said at paragraph 337:
[337] The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances ... Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular Court and may require knowledge of the working of the listing system of the particular Court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A Court of appeal will not, as a general rule, interfere with a decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it has been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate Court to receive new evidence on the hearing of an appeal ... and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.
[5] Squire v Rogers (1979) 27 ALR 330.
Prior to both Allesch v Maunz and Aon Risk Services v ANU, the High Court commented on the competing considerations at play in a Court’s consideration of an adjournment application in Haset Sali v SPC Limited and Anor,[6] per Brennan, Deane and McHugh JJ:
[11] In determining whether to grant an adjournment, the judge of a busy Court is entitled to consider the effect of an adjournment on Court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers ((4) [1979] FCA 48; (1979) 27 ALR 330, at p.337.) this "may require knowledge of the working of the listing system of the particular Court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of Court resources.
[6] Haset Sali v SPC Limited and Anor (1993) 116 ALR 625.
Per Toohey and Gaudron JJ:
1. A decision by a Court to grant or refuse an adjournment of proceedings is a decision made in the exercise of a discretion vested in that Court …
… the discretion is one that must be exercised judicially.
The Full Court of the Family Court of Australia has considered appeals relating to adjournment applications, granted and denied, numerous times. I cite five examples.
In In the Marriage of JRD & MD,[7] per Nicholson CJ, Kay and Waddy JJ at paragraphs 99 to 108:
[7] In the Marriage of JRD & MD (2000) 26 FamLR 731.
[99]In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as "the paramount consideration": Queensland v JL Holdings Pty Ltd (above). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz (2000) 173 ALR 648 ; 26 Fam LR 237 at [38]-[40]. Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court's determination; and the expeditious marshalling and presentation of relevant evidence.
[100]The aim is to produce a better focused trial which, by concentrating on essentials, is shorter and thus less costly to all concerned. Not only are the resources of litigants thus conserved, so, too, are the far from limitless resources of the Court.
[101]Problems of delay in the attainment of justice have long plagued the Courts. Well known remedies were even sought by way of Magna Carta in the thirteenth century. The aphorism "Justice delayed is Justice denied" is all too frequently manifestly true in this jurisdiction. Delays in cases such as this are often not fully compensable in purely money terms. Here the husband claimed his new partner had just had a second child by him. Over 4 years had elapsed since the commencement of proceedings and the wife had not received the money to which the trial judge eventually found her to be entitled, nor had she been able to enjoy the peace and security of having put this failed relationship behind her.
[102] The parties were not the only ones affected. The wife claimed the litigation had had "quite an effect" on her children, and on herself as their chief carer.
[103]In many cases monetary compensation is not an adequate remedy for delay. In property disputes, especially where the needs of the parents which whom children are living need to be addressed, adjournments with or without costs orders may be totally inadequate in doing justice between the parties.
[104]To eliminate or at least greatly reduce unacceptable delays, within the resources available, is a constant goal of the Court. In achieving such reduction as may be possible, the cooperation of all litigants, legally represented or appearing in person, is essential. Thus it is fundamental that case management directions and orders of the Court in preparation for trial (or settlement) must be respected and obeyed.
[105]Interlocutory processes must at all times necessarily balance the rights of all litigants to justice according to law. Such litigants comprise not only those party to such cases as are listed for hearing but also those litigants waiting for hearing dates due to the congestion of the lists. It is common sense, that, when time is allocated to a particular case, it should be ready to proceed and fully utilise the time afforded it. Such time should be no less and no more than that which is needed to do justice in the particular matter.
[106]In this instance, the matter had been before the Court on no less than 27 occasions. On two previous occasions it had been necessary to vacate trial dates. It takes little imagination to perceive that the Court's resources devoted to this one case (let alone other proceedings between the same parties that were adverted to as well), was utterly disproportionate to the issues involved. Such Court resources, if not squandered on this matter, would have been available to other litigants who did obey the Court's orders and directions.
[107]The Court, no less than those who litigate before it, is constrained by the interplay of competing principles. In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end. Such a goal overrides any notions of punishment for disobedience of such orders.
[108]Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are "exceptional", and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.
In Farmer & Rogers[8] Bryant CJ, O’Ryan and Ainslie-Wallace JJ said at paragraphs 194 to 197:
[194]In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 the High Court (perFrench CJ at 192-195 and Gummow, Hayne, Crennan, Kiefel and Bell JJ at 212-215) discussed and emphasised the importance of case management of proceedings. As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed at 217:
In the past it has been left largely to the parties to prepare for trial and to seek the Court's assistance as required. Those times are long gone. The allocation of power, between litigants and the Courts arises from tradition and from principle and policy. It is recognised by the Courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[8] Farmer & Rogers [2010] FamCAFC 253.
[195]In Aon Risk Services the High Court considered r 21 of the Court Procedures Rules 2006 (ACT) which provides that the rules are to be applied in civil proceedings "with the objective of achieving (a) the just resolution of the real issues in the proceedings; and (b) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties". We observe that r 1.04 of the Family Law Rules provides: "The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case". We also observe that r 1.03(1) of the Rules provides: "The object of these Rules is to assist the just, efficient and economical resolution of proceedings". The above rules express in different ways the same purpose or object.
[196]In Aon Risk Services Gummow, Hayne, Crennan, Kiefel and Bell JJ also observed at 213:
The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the Courts of the Australian Capital Territory.
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. (footnotes omitted)[197]In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential ... . But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
See also Reynolds v Reynolds (1973) 1 ALR 318 per Mason J at 322-325; MvM (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76; UvU (2002-03) 211 CLR 238 per Hayne J at 285 and JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 per Kirby J at 1332.
Of recent times there are two decisions of Strickland J sitting as the Full Court. First is Medlon & Medlon (No. 4)[9] where the wife made an oral application for an adjournment of a final hearing on the basis of asserted ill-health and non-availability of her barrister. The matter had been awaiting a hearing for some time and the husband opposed the wife’s application for adjournment.
[9] Medlon & Medlon (No. 4) [2015] FamCAFC 70.
In that case, as in this, the medical certificate provided by the wife in support of her application to adjourn lacked detail and provided no assistance to the Court as to the extent of her inability to appear and to conduct the proceedings. Further, the wife provided no evidence as to the non-availability of her barrister and provided no evidence of what attempts she had made to obtain alternative representation. Her application for adjournment of the hearing was dismissed.
At paragraphs 4 to 6, and then 14 and 15, His Honour said:
[4]The two reasons proffered by the wife from the bar table in support of her application are first, that she is unwell and needs a rest, and she is off work at least until apparently 7 April 2015. The second reason the wife puts forward is that she had booked a barrister, but he became unavailable today because, the wife asserts, a part-heard matter he was involved in was carried over to today. She also tells me that she made attempts to find an alternative barrister but was unsuccessful.
[5]In support of her application the wife has relied on a medical certificate which was forwarded to the Court via email on Thursday 26 March 2015 at 7:16pm. I will receive that medical certificate and mark it Exhibit “W1”. The medical certificate is from a medical practitioner in Victoria; it certifies that the wife consulted the Doctor on 26 March 2015, and says “[s]he was affected by a medical condition and is unable to attend work today 26/3/2015 until 2/04/2015 inclusive.”
[6]In relation to the unavailability of the wife’s barrister, there is no documentation the wife has presented to this Court in support of what she has asserted from the bar table.
[14]To return to the adjournment application, I am not satisfied that the wife is unable to conduct the hearing today. I am not satisfied with the medical certificate that the wife has presented to the Court.
[15]There are two issues about that medical certificate. First, the doctor describes the wife as suffering from a medical condition, however there is no detail whatsoever as to what that condition is. Secondly, the certificate says that the wife is unable to attend work from 26 March 2015 to 2 April 2015, but it says nothing about her ability to conduct a hearing in this Court today. Thus, that medical certificate is of no assistance whatsoever to me today in understanding why the wife would seek an adjournment, allegedly because she is “unwell and needs a rest”, being the precise words she used to me in her submission.
Shortly thereafter in Gazal & Belros,[10] His Honour said:
[45] What the High Court said in Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175 is also apposite to these proceedings, namely, it is relevant to take into account the negative effects of delay and adjournments, and the failure to comply with orders providing for case management in exercising the discretion that the Court has. At [30] French CJ said this:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a Court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
[10] Gazal & Belros [2015] FamCAFC 92.
Later that year, the Full Court again considered an “adjournment appeal” in Elgin & Elgin[11] where May, Thackray and Ryan JJ said at paragraphs 92 to 98:
[92] A decision of a trial judge in granting an adjournment is generally regarding as falling within the category of 'practice and procedure'. In Bloch v Bloch (1981) 180 CLR 390, Wilson J said at 395:
The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate Court will feel justified in reviewing such a decision…
[93] In Sali v SPC Limited (1993) 67 ALJR 841 the High Court in the context of considering the proper approach to the refusal by an intermediate state Court of appeal to allow an adjournment, discussed whether a judge is entitled to consider the effect of an adjournment on Court resources and other litigants. Of this their Honours Brennan, Deane and McHugh JJ said at 843 after referring to an English Court of Appeal decision Maxwell v Keun [1928] 1 KB 645 at 650 for the general principle that:
...[A]lthough an appellate Court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate Courts on many occasions.
[11] Elgin & Elgin (2015) 54 Fam LR 31.
[94] Reference was then made to a further proposition contained in the English decision that "an adjournment which, if refused would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action". Their Honours said of this:
...However, both propositions were formulated when Court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.
In determining whether to grant an adjournment, the judge of a busy Court is entitled to consider the effect of an adjournment on Court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers this "may require knowledge of the working of the listing system of the particular Court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of Court resources.
[95] In the judgment of Toohey & Gaudron JJ it was said that (at 846):
A decision by a Court to grant or refuse an adjournment of proceedings is a decision made in the exercise of a discretion vested in that Court. It is therefore a decision which will not lightly be set aside on appeal.
[96] To the extent to which it is necessary to add to this, reference was made by counsel for the wife to Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 to emphasise the relevance and the occasions a Court may consider the implications of case management in the context of any injustice which might be occasioned to either party. In dealing with the suggestion that principles of case management should only be employed in extreme circumstances their Honours at [94] made it entirely clear that this is not necessarily so:
...Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the Court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
[97] In the submissions of counsel for the wife reference was also made to [102]-[103] and [112] of that decision. While Aon was concerned with an application for leave to make a late amendment to pleadings it is obvious that the contents of these passages apply also to a decision as discretionary as whether an adjournment of a trial should be allowed. It is unnecessary to refer any further to matters of general principle in this respect.
[98] Forrest J was entirely correct in taking into account the unlikely possibility of the matter being heard within a short timeframe and the effect on Court resources should the trial be adjourned.
I also note the decision of the Full Court in Jarrah & Fadel[12] where Murphy J said at paragraph 14:
[14] While this application for leave to appeal relates to interlocutory orders made by the judge below the impact of an adjournment would see the imminent parenting proceedings listed for trial before that judge being delayed. As her Honour pointed out a predominant consideration of the application for adjournment is the best interests of three young children. Given the unfortunate history of this litigation there can be no doubt in my mind that those best interests are met by the litigation about them being brought to an end as soon as can be permitted.
[12] Jarrah & Fadel [2014] FamCAFC 14.
The Court must provide natural justice through procedural fairness to all litigants. Included in that imperative is the requirement to provide all litigants with the opportunity to place their case fully before the Court. It is the giving of that opportunity that matters most, as “affording the opportunity is all that the law and principle requires.”
Considerations of natural justice and procedural fairness need to be weighed on both sides in this matter, for the Father having the matter adjourned so that he has opportunity to place his case before the Court in consequence of his absence from the Court at the time the matter has been set down for hearing, and for the Mother having the matter proceed in accordance with the Court’s orders and directions so as not to be further delayed with all the detriments, personal and financial, that such delay will cause. Most importantly, considerations of natural justice and procedural fairness need to be weighed in terms of the best interests of children, X and Y, including their interest in having these proceedings, which, having been commenced on 11 July 2016, have subsisted for a large part of their young lives, ended by a final resolution.
As the above quoted authorities make plain, there are considerations beyond the parties to these proceedings and their children the subject of these proceedings. There is consideration of the other litigants in matters currently before the Court and awaiting “judge time”. If the Father’s application for adjournment of the final hearing were granted and further final hearing dates allocated any earlier than “the back of the queue”, then there would be consequent pushing back of other matters also awaiting final hearing, other matters that have not yet been allocated their first hearing dates, where, when one includes the allocated undefended hearing date, this matter has had two sets of final hearing dates allocated. If the matter does go to “the back of the queue” then the reality of my final hearing listing docket is that it would be unlikely to be allocated final hearing dates that occur any earlier than late 2020 or early 2021.
The Father has had sufficient opportunity to plead his case by filing his trial evidence by way of affidavits. He has not done so in the period between the direction to file trial affidavits made on 27 September 2018 and the first day for final hearing, 30 April 2019, being a period of seven months. Had the Father been present before the Court, whether self-represented or represented by a legal practitioner, on the first day set down for final hearing, there would still have been the difficulty of no trial affidavits having been filed by the Father.
The Father’s reason for not being before the Court on 30 April or 1 May 2019 is inadequate to have the Court grant an adjournment in his favour because the evidence he relies upon to prove that reason does not do so to the requisite standard, the balance of probabilities. It is silent on both medical certificates as to the medical practitioners own expert opinion as to the Father’s ability to conduct the case on his own behalf, with the second medical certificate merely referring to the Father’s own assertions in that regard.
On the basis of the above reasons, I dismissed the Father’s Application in a Case filed 22 April 2019 seeking to adjourn the final hearing from 30 April 2019.
On the basis of the above reasons I found that it was appropriate to proceed with the final hearing of this matter on an undefended basis in relation to the Respondent Father.
Accordingly, the final hearing proceeded on undefended basis as against the Father on 1 May 2019.
The proposals before the Court on Hearing
In preparation for the final hearing, Counsel for the Mother prepared a Case Outline document and a copy was tendered to the Court at the commencement of the hearing and marked as Exhibit 5. The orders as sought by the Mother at the commencement of the hearing were set out in the Case Outline document as follows:
a)That the Mother have sole parental responsibility for the children X born on … 2012 and Y born on … 2014, (together, “the children”) .
b)That the children live with the Mother.
c)That the Father be restrained from removing the children from their Mother’s care other than in accordance with these orders.
d)That the children spend time with the Father on the first Sunday of each month, from 10:00am until 4:00pm, with time to be supervised by one of the below supervisors:
i)Ms A;
ii)Ms M; or
iii)Such supervisor as may be agreed in writing between the parties, which may include supervisors retain from an agency that provides supervision services, in which case the Father will meet the costs of and relating to such supervision.
e)Other than where the children’s time occurs in the presence of supervisors retain from an agency that provides supervision services, for the purposes of the time specified in Order (d) herein, the following will apply:
i)To affect change over, the supervisor shall collect the children from their Mother’s home at the commencement of the children’s time with the Father and return the children to the Mother at the Mother’s home at the conclusion of the children’s time with the Father;
ii)The Father shall not be present during changeovers;
iii)The Mother and supervisor shall be permitted to communicate with each other about the children’s time with the Father and other relevant matters;
iv)That each of the supervisors shall complete the undertaking in the form which is Annexure “A” to these orders with respect to their obligations as a supervisor, if they have not already done so, prior to commencing supervision of time.
f)That where the children’s time with the Father in accordance with Order (d) herein occurs in the presence of supervisors retained from an agency that provides supervision services, the following will apply:
i)The Father shall email the Mother the confirmed paid supervision booking paperwork no later than 21 days before the scheduled Sunday, such paperwork to include:
1. The location of the venue where supervised time will take place, such location to be within 25 kilometres of the Sydney CBD; and
2. Contact details for the retained supervisor;
ii)The Father shall not be present during changeovers;
iii)The Mother and supervisor be permitted to communicate with each other about the children’s time with the Father and other relevant matters.
g)That the Mother shall facilitate the children having Skype or telephone or FaceTime communication with the Father in accordance with their wishes, but to include on each of the children’s birthdays and Christmas Day and the Mother be permitted to terminate a call if the Father seeks to engage the Mother during the course of the call.
h)That after one month from the date of these orders, the Father may email the Mother, no more than once each month, for updates in relation to the children, including each child’s emotional, intellectual and medical needs, progress at school, social and physical development and the Mother will respond by email to the Father about these matters within 21 days of receiving each such written request.
i)That within 14 days of receiving the children’s school reports, the Mother will email a copy of each report to the Father.
j)The Mother notify the Father by email as soon as practicable in the event of either of the children suffering a serious illness or having a serious accident.
k)That pursuant to section 68B of the Family Law Act, Father be restrained from attending either child’s school, school events, sporting activities and social events without the Mother’s prior written consent had in advance.
l)That both parties be injunction and restrained from:
i)Denigrating or criticising the other parent or their family in the presence or hearing of the children or allowing any third person to do so; and
ii)Discussing the proceedings in the presence or hearing of the children or allowing any third person to do so.
m)That the Mother is solely appointed to give consent to the issue of a passport for the children under the Australian Passports Act 2005 and for the renewal of each child’s passport at the Mother’s cost from time to time.
n)The Mother may take the children from Australia to travel overseas for a holiday provided that she gives to the Father at least 4 weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline (or other carrier) with whom the child will be travelling, members of the travelling party in the case of family holidays, the intended destination and the intended date and time of return and subject to the trip, and for the purpose of such holiday, the Father’s time in accordance with these orders will be suspended.
o)The Mother will hold the children’s passports in her safe custody.
p)The Mother keep the Father informed by written communication of the Mother’s working email account and notify the Father of any changes to same from time to time.
q)The Father keep the Mother informed by written communication of his working email account and of the full address where he is living and notify the Mother of any changes from time to time.
r)Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if either party contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the attachment to these orders and these particulars are included in these orders.
Murphy J in Harridge & Anor & Harridge[24] at paragraph 73 quoted an article by B. Mahendra, a British psychiatrist and barrister entitled “Psychiatric Risk Assessment in Family and Child Law” and provided a helpful list for trial judges for determining matters where unacceptable risk is raised:
[24] Harridge & Anor & Harridge[2010] FamCA 445.
(a) What harmful outcome is potentially present in this situation?
(b) What is the probability of this outcome coming about?
(c)What risks are probable in this situation in the short, medium and long term?
(d)What are the factors that could increase or decrease the risk that is probable?
(e)What measures are available whose deployment could mitigate the risks that are probable?
The Full Court in Napier & Hepburn[25] referred extensively at paragraph 56 to the judgment of Fogerty J in N v S[26] at 82,713, and emphasised that it is not for the Court to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not being permitted to prosper.
[25] Napier & Hepburn(2006) FLC 93-303.
[26] N v S (1996) FLC 92-655.
To go forward from an assessment of unacceptable risk to a finding that certain conduct giving rise to the assertion of unacceptable risk has actually occurred places the onus on the party asserting that the conduct has occurred to establish on the balance of probabilities that the assertion is correct. As pointed out by the Full Court in Re W; Sex Abuse (Standard of Proof),[27] the standard of proof the Court is required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw v Briginshaw,[28] noting that the appropriate reference is now to section 140 of the Evidence Act 1995 (Cth), and in particular, section 140(2)(c).[29]
[27] Re W; Sex Abuse (Standard of Proof) (2004) 32 Fam LR 249.
[28] Briginshaw v Briginshaw (1938) 60 CLR 336.
[29] Johnson & Page (2007) FLC 93-344 at [72].
In Johnson & Page at paragraphs 62 to 72, the Full Court (May, Boland & Stevenson JJ) set out a detailed summary of the relevant law relating to unacceptable risk up to that time and I have had regard to the whole of those paragraphs of that judgment. In particular at paragraphs 68 and 71:
[68] In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1. The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2. The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5. The concentration in these cases should normally be uponthe question whether there is an unacceptable risk to the child.
6. The onus of proof in reaching that conclusion is the ordinary civil standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
[71] We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
What harmful outcome is potentially present in the Father spending supervised time with the children?
The Father has been entitled to spend supervised time with the children since the orders made by Judge Boyle on 30 August 2016. Those orders were varied on 2 November 2016, but still provided for the Father to have supervised time with children.
Orders were made by Her Honour on 16 December 2006 that expanded the list of persons who could supervise the Father’s time with the children, including:
…as otherwise agreed in writing between the parties.
Those orders remained in place right up to the final hearing on 1 and 2 May 2019, but the Father ceased to avail himself of spending supervised time with children in mid-2017, the last occasion of his supervised time with the children occurring on Sunday, 25 June 2017.
Time between the Father and the children, in accordance with the interim orders, has not been denied to the Father by the Mother, it has been denied to the children by the Father. On the evidence at hearing, the Father could not see any reason behind the necessity for his time with the children to be supervised, and so he refused to spend time with the children.
In the event that final orders are made providing for the Father to spend time with the children on the supervised basis, even for the period of six months as suggested by Family Consultant Ms G and supported by Family Consultant Ms H, being the period during which the Father must complete the recommended courses and pursue engagement with a clinical psychologist, I find that there is an unacceptable risk to the children of consequent disappointment, in that the Father will persist in refusing to avail himself of the opportunities provided by such an order, as to do so would offend his personal principles. That cannot be in the best interests of children.
What harmful outcome is potentially present in orders being made that the Father spend time with the children on an unsupervised basis?
Both Family Consultant Ms G and Family Consultant Ms H were emphatic in their evidence that the Father commencing to spend time with the children on an unsupervised basis without having undertaken the recommended courses and the recommended engagement with a clinical psychologist would present a risk to the children.
This risk would be presented by the Father’s potential to engage in aggressive behaviour toward them, or towards others, as a consequence of his failure of anger management and/or as a consequence of his potential for inappropriate personal behaviour consequent upon his abiding perception that everything is always someone else’s fault. Further than that, both Family Consultants identified a potential risk to the children of physical harm at the hands of the Father if their behaviours pushed the Father to the point of losing his temper.
The evidence of the Mother on hearing summarised above includes multiple occasions of family violence perpetrated upon her by the Father. The Mother’s evidence in that regard was unchallenged. She was not cross-examined on her assertions of family violence perpetrated by the Father by the Independent Children’s Lawyer and she was, of course, not challenged in cross-examination by the Father as he was not a participant in the final hearing. I accept the evidence of the Mother, it being unchallenged and not subject to any contradictions internally or externally.
Accordingly, I find that the Father perpetrated family violence in the nature of assaults upon the Mother during their period of cohabitation. I find that the Father perpetrated family violence in the nature of preventing the Mother from making or keeping connections with her family to the extent that she desired and by, on the occasion of locking the Mother on the balcony, unlawfully depriving her of her liberty.
On the same basis of the Mother’s unchallenged evidence, I find that the family violence perpetrated by the Father against the Mother was perpetrated on occasions in the presence of, and within the perception of, the children. Family violence by one parent to the other in the presence of children has an effect on those children, and can have a devastating and even lifelong effect, to the detriment of those children.
The Father’s propensity to violence when he is opposed or displeased, as demonstrated in the occasions of his violence to the Mother, presents a real risk to the children. The Father’s propensity to lash out by way of physical or verbal violence when he is opposed presents a real risk to the children in that they can witness that behaviour on the part of the Father towards others while in his unsupervised care.
What is the probability of the children being subjected to harm whilst in the Father’s care on an unsupervised basis, or even conceivably supervised basis, in consequence of his failures of parenting capacity and his personal behavioural traits and attitudes?
Without the Father undertaking courses to be educated on how to appropriately parent his children, how to respond to them, and in particular, how to respond to their behaviours, especially when their behaviours are contrary to his orders, wishes or expectations, the evidence compels me to find, on the balance of probabilities, that there is an unacceptable risk of the children being subjected to such harm.
I find it is necessary for the Father to engage in a course of therapy with a clinical psychologist, at least, as recommended by the Family Consultants, and as on the totality of the evidence, to enable him to address and overcome the potential harm to the children.
The evidence compels me to find on the balance of probabilities that there is an unacceptable risk of the children being exposed to harm in the care of the Father.
What risks are probable if the children are in the care of the Father on an unsupervised basis, in the short, medium and long-term?
Unfortunately, the risks that are probable in those circumstances I find to be the risks that are potentially present in the situation as outlined above. Accordingly, those risks are unacceptable.
What are the factors that would increase or decrease the risks that are probable?
The answer to this question has been addressed above repeatedly. That is, the engagement by the Father in appropriate courses and appropriate therapy may, in the first place, bring him to a point of acceptance of his own part in the events of the past between himself, the Mother and in relation to his actions such as retaining the children from their Mother, their lifelong primary caregiver, for a period of two months without accepting that there is any detriment to the children or blame attaching to him and that course of action.
Whether or not the Father undertaking the recommended courses and engaging in the course of therapy would achieve the result that he no longer presents a risk to the children is a matter that would need to be assessed by the appropriately qualified health professionals and social scientists before a further step could be taken to consider time between the Father and the children on either a supervised or unsupervised basis.
What measures are available whose deployment could mitigate the risks that are probable as identified in these reasons?
The measures are the making of orders that the Father engage in the courses recommended by the Family Consultants, and that the Father engage in a course of therapy with at least a clinical psychologist to address the issues that affect his parenting capacity and that represent an unacceptable risk to the children as discussed above.
Having identified those measures, the question needs to be asked as to whether, if implemented, those measures will be of any use. The Father has shown by his course of conduct over the two years that he has failed to take any advantage of the interim orders for spending supervised time with the children and by his course of conduct in failing or refusing to comply with orders made by the Court that he has little regard for Court orders. I find that at the present time it would be an empty exercise to make orders that the Father engage in the courses, and that the therapy is a prelude to a condition of spending time with the children pursuant to orders.
Accordingly, I find that it is not in the children’s best interests in the present circumstances to have a meaningful relationship with their Father because the need to protect the children from the unacceptable risks involved in having that meaningful relationship must be given precedence.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In the more recent of the two Family Reports dated 5 March 2019, the interviews occurred on 24 January 2019, at which date X was six years of age and Y was four years of age. Neither child was of an age where their views would be given any real weight by the Court.
It was the view expressed by X that he wanted his Mother and Father to be back together. He expressed this by saying that he wants to live with his Mother and his Father. His expression of a view did not go beyond this.
When asked by the Family Consultant about her Father, Y:
…said that she feels sad about not seeing him much. She pulled a sad expression and returned to her play.
This additional consideration does not assist me in determining the parenting orders to be made in the best interests of the children.
The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
As commented above, the children have a meaningful relationship with their Mother. It is evident from the evidence in the Family Reports that each of the children has a close and loving relationship with their Mother.
It is also evident from the Family Reports that each of the children has a meaningful relationship to some extent with their Father, though whether that meaningful relationship is tainted with some anxiety or even fear on the part of the children in the presence of their Father is not clear, though it is suggested as a possibility in the evidence of the Family Consultants.
As the matter proceeded on an undefended basis as against the Father, and as there is no evidence from the Father before the Court on hearing, there is difficulty in making a finding as to the real nature of the relationship between the Father and the children.
It can be found on the basis of the observations detailed in the Family Reports, and also in the attitude of the Mother right up to the end of the evidence in the hearing, that the children should have, and would benefit from, a relationship with their Father, and that the nature of the relationship between the children and their Father has its good points and its benefits. Unfortunately, those benefits are currently outweighed by the detriments.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
I do not have sufficient evidence to make a finding in relation to the Father taking or failing to take opportunity to participate in making decisions about major long-term issues in relation to the children. Inherent in the relationship between the parents and the attitude of the Father to the Mother and her parenting of the children, it is likely that the opportunities have not been presented to the Father and that, if presented, the Father would use the occasion as an attempted control tool towards the Mother.
It is plain on the evidence that the Father has deliberately, and by his own conscious decision, failed to take two years’ worth of opportunity to spend time with the children, and to communicate with them on a regular basis. The opportunity to spend time with the children on a supervised basis, assisted by any one of six named supervisors, has been open to the Father throughout that time under the interim orders and the Father has, in effect, refused to do so.
It has been open to the Father to put forward other proposed supervisors in an effort to reach agreement with the Mother as to the suitability of the proposed supervisor, and so add to the list. Other than proposing persons within his family who are not acceptable to the Mother, the Father has made no other effort. He has made no effort to propose a commercial supervision agency.
This failure by the Father to pursue his time with the children, putting his personal sense of what is right and just, and perhaps his pride, over and above the best interests of his children leads me to find that under this additional consideration, the making of orders for the Father to spend time with the children on a supervised or unsupervised basis in the present circumstances is not in the best interests of the children.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The evidence of the Mother, unchallenged on hearing, is that since the separation of the parties, the Father has provided no child support or other financial support for the children other than a payment towards a birthday party in 2018.
The children are wholly financially supported by the Mother.
I suspect, though on the basis of the evidence before the Court on the undefended hearing, I cannot find, that the Father’s failure to contribute to the financial support of the children since the separation of the parents is symptomatic of his attitude that everything is someone else’s fault, in this case principally the Mother’s fault, and that it is her fault that he is not providing financial support for the children because it is a consequence of her fault in withholding the children from him. If my suspicion is correct and that is the reason behind the Father’s failure to provide financially for the children, then it would go along with my findings as to the unacceptable risk to the children presented by spending time with their Father in the present circumstances.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Separation of the children from their Father by not spending any time with him is not a change in their circumstances in any recent sense, as they have not spent time with him since June 2017.
I do not consider that this additional consideration assists me in determining parenting orders to be made in the best interests of the children in the current circumstances.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
My summary of the evidence in the matter set out above, and my analysis of what that evidence means in relation to the Father’s parenting capacity need not be repeated here, other than to say that I find that the Father has demonstrated a lack of parenting capacity in his failure to take advantage of the continuing opportunity over the past two years to spend time with the children on a supervised basis.
The Father has shown an inability, as demonstrated in the evidence, and particularly as reflected in the opinions expressed by the Family Consultants in the Family Reports, to be accepting of his own failings, and an inability to have any insight into the consequences of his actions on each of the children, on his relationship with each of the children, on the Mother and on the Mother’s ability to interact with him so as to co-parent the children.
The Mother has demonstrated that she has the capacity to provide adequately for the children’s needs, including their financial, physical, emotional and intellectual needs.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
On all of the evidence, the Mother has demonstrated a proper attitude to the responsibilities of parenthood and to the children. She has been the principal carer all of their lives. She has been the sole carer since the separation of the parties. No more in-depth analysis of the Mother’s parenting or attitude of the children is required.
On all of the evidence, the Father has failed to demonstrate a proper attitude to the children and the responsibilities of parenthood. I find that in his failure to take advantage of the opportunity to spend time with his children, due to defending his personal principles, or pride, or sense of what is just and right, is a complete failure of the Father to demonstrate a proper attitude to the children and the responsibilities of parenthood.
I find that the family violence perpetrated by the Father upon the Mother in the presence of the children is a further failure by the Father to demonstrate a proper attitude to the children in the responsibilities of parenthood.
I find that the failure of the Father to engage fully in the proceedings and to comply with the orders of the Court in relation to procedure, and to engage in the final hearing, is a further failure by the Father to demonstrate an appropriate attitude to the children and the responsibilities of parenthood.
In circumstances where the Father cannot demonstrate a proper attitude to the children and the responsibilities of parenthood, I find that it is not in the best interests of the children to spend time with him on an unsupervised basis, and it is another factor against it being in the best interest of the children to spend time with their Father even on a supervised basis in the current circumstances.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This consideration takes on particular importance in this matter. The Father did not participate in the final hearing; it proceeded undefended on the basis that I found that the Father’s reasons for failing to appear before the Court, coupled with the other considerations discussed at the start of these reasons, did not justify the final hearing being vacated and the matter adjourned.
I declined to make a final order for long-term or unending supervision of the Father’s time with the children on the basis that such an order, made on a final basis, cannot be in the best interests of the children. In this regard I refer to the decisions of the Full Court of the Family Court of Australia in Moose & Moose[30] and Gorman & Huffman.[31]
[30] Moose & Moose (2008) FLC 93-375.
[31] Gorman & Huffman [2016] FamCAFC 174.
Similarly, I declined to make interim orders and put this matter over for a further hearing. As stated earlier, in relation to my consideration of the Father’s adjournment application, these proceedings have been on foot before the Court since 11 July 2016, and the best interests of the children require that there be finality. To make an interim order for the Father’s time with the children to be supervised would, in any case, be an empty exercise in view of the Father’s refusal to take advantage of the interim order that has subsisted since 30 August 2016.
Based on the findings I have made in these reasons, in the event that the Father addresses his personal and parenting issues, at least in the manner recommended by the Family Consultants in the Family Reports, he may be able to establish sufficient changed circumstances to justify the Court in reopening the parenting issues on a subsequent application.
I am also mindful of the provisions of rule 16.05 of the Federal Circuit Court Rules 2001.
On the basis of my consideration of the primary and additional considerations set out in section 60CC of the Act, I find that it is in the best interests of the children to make orders that they live with their Mother and that they spend time with their Father only by agreement between the parents, evidenced in writing, signed by both of the parents.
Parental Responsibility
I am required by section 61DA, when making a parenting order, to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them unless that presumption is rebutted by evidence that satisfies me that it would not be in the best interests of the children for their parents have equal shared parental responsibility, or unless the presumption does not apply, if I have reasonable grounds to believe that a parent of the children has engaged in abuse of the child or either of them or has engaged in family violence.
I made a finding that the Father has engaged in family violence within the meaning of that term as defined in section 4AB of the Act. Accordingly, the presumption does not apply.
Even though the presumption does not apply, I must consider what order, if any, is in the best interests of the children to be made in relation to parental responsibility, as otherwise the circumstances prevailing under section 61C of the Act continues, and the parents each have parental responsibility for the children. As the Full Court explained in Goode & Goode, this is a different legal position to equal shared, or even shared, parental responsibility.
On the basis of my evaluation of the primary and additional considerations in section 60CC of the Act, I find that it is in the best interests of the children that the Mother have sole parental responsibility for the children. On the evidence as summarised in these reasons, there is virtually no possibility of the parents being able to communicate and co-operate on a basis adequate for them to make proper decisions for co-parenting the children in relation to the children’s long-term welfare and interests.
The children live with the Mother, and will continue to live with the Mother pursuant to the orders I will make. Unless by agreement between the parents, evidenced in writing, signed by each of them, the children will not be spending time with their Father. In those circumstances it is in the best interests of the children for their Mother to have sole parental responsibility for them.
As I will not be making an order that the parents have equal shared parental responsibility for the children, I need not address the matters set out in section 65DAA relating to the children spending equal time with each of the parents, or the children spending substantial and significant time with each of the parents.
On the basis of the evidence, and my consideration of the primary and additional considerations in section 60CC in the light of the evidence as set out above, I could not find that it is in the children’s best interests to spend equal time with each of their parents, or to spend substantial and significant time with each of their parents.
It is to be hoped, in the best interests of the children, that the Father takes it upon himself to address the matters referred to in these reasons. What may flow from that if he does I leave without further comment.
Accordingly, I make the orders as set out at the start of these reasons.
I certify that the preceding three hundred and thirty-eight (338) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 29 August 2019
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