JEFFS & MARSHALL (No.4)
[2019] FCCA 174
•31 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFS & MARSHALL (No.4) | [2019] FCCA 174 |
| Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – mother makes oral application seeking permission to defend proceedings part way through part-heard trial – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), s.60CA Federal Circuit Court Rules 2001 r.16.05(2). |
| Cases cited: Scheibner-Grover (now Grossman) and Ryan (1987) FLC 91-833 Taylor v. Taylor (1979) FLC 90-674 Allesch v Maunz (2000) 203 CLR 172 Cooke & Morton [2018] FamCAFC 9 Jeffs & Marshall [2018] FCCA 3185 Tate & Tate [2000] FamCA Harper & Harper [2016] FCCA 1603 Clifford & Mountford [2006] FMCAFam 450 Barbey & Tuttle [2013] FamCAFC 44 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 |
| Applicant: | MS JEFFS |
| Respondent: | MR MARSHALL |
| File Number: | MLC 7616 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 19 November 2018 |
| Date of Last Submission: | 19 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Teicher |
| Solicitors for the Applicant: | Cathleen Corridon & Associates |
| Counsel for the Respondent: | Ms Healey |
| Solicitors for the Respondent: | CBD Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Devine |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Law |
ORDERS
The mother’s oral application to be permitted to proceed on a defended basis be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Jeffs & Marshall (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7616 of 2016
| MS JEFFS |
Applicant
And
| MR MARSHALL |
Respondent
REASONS FOR JUDGMENT
This is a difficult parenting matter concerning the best interests of [X], born … 2009, and [Y], born …2013. There have been numerous appearances and trial dates in this matter.
Due to the serious risk issues in this case, it has been necessary to list the trial over several non-consecutive days in priority to other cases that have been waiting for trial dates for many months. The difficulty has been compounded by the false starts due to the mother’s non-attendance on multiple occasions.
What is unusual about this trial is that whilst it has proceeded on an undefended basis as a far as the mother’s case is concerned, because of the risk issues and the history of these proceedings, the trial has nonetheless proceeded over the course of many days as the Court could not be satisfied that the orders sought by the father were in the children’s best interests without hearing evidence. At the time of the mother’s oral application, the family report writer had given evidence first and was cross-examined for a day and a half. The father had been cross-examined for a day.
On the third day of the trial the mother made an oral application effectively seeking that the order made on 7 November 2018 be set aside and that she be able to defend the proceedings.
After hearing that application at that time on 19 November 2018, I briefly indicated that I accepted the Independent Children’s Lawyer’s submissions and would dismiss the application. I informed the parties that I intended to incorporate written reasons for the dismissal into the primary judgment so as to not to delay the continuation of the trial.
Counsel did not object and at no stage since then have any of the parties requested that I provide these reasons separately. Having now been advised by the appeals registry that there is an appeal from that decision, it is appropriate that I provide the reasons for dismissing the mother’s oral application separately, as the trial reasons will not be finalised for several weeks at least, noting the timetable for filing written submissions ends on 15 March 2019. Further to this, given the nature of the appeal there is little to be achieved by working further on the primary reasons until the outcome of the appeal is known.
History of proceedings
It is necessary to set out the history of the proceedings in order to give context to the mother’s application. I will not set out all of the orders made during the course of the proceedings.
The mother filed an initiating application on 12 August 2016 seeking that the children live with her and spend no time with the father.
The father filed a response seeking time with the children at Contact Centre on six occasions and then day time visits. The father’s position has changed significantly during the course of the proceedings.
On 27 September 2016, Her Honour Judge Jones made interim orders for the parties to enrol with the Berry Street Contact Centre and made an order for a s.11F report. She appointed an Independent Children’s Lawyer (“ICL”) and ordered that the parties attend for a psychiatric assessment with Dr A.
On 30 November 2016 Her Honour Judge Williams made a further order for a s.11F report.
On 17 May 2017 I made orders adjourning the matter for an interim hearing and listing the matter for a four day final hearing starting on 24 September 2018.
On 11 August 2017 the parties agreed to consent orders as follows:
a)requiring them to enrol in the reunification program at Contact Centre Suburb B;
b)that they register at Berry Street Contact Centre;
c)that the mother provide school and/or daycare reports to the father’s solicitors with the addresses redacted; and
d)a restraint on the mother denigrating the father.
On that occasion the mother flagged her desire to relocate.
The father attended all the appointments made available to him at Contact Centre. The mother did not engage with that service.
On 7 September 2017 the mother filed an amended initiating application seeking permission to relocate to Town C in New South Wales on both an interim and final basis. The mother sought orders that the parties enrol in a reunification program within 90 kilometres of Town C and enrol at a contact centre. The mother sought to relocate straight away because she was due to have a major operation and needed family support to assist with care of the children during her recovery. The maternal grandmother was living in Town C at the time.
As the reunification process had not started at that time (and still has not), I made orders on 9 October 2017 permitting the mother to take the children to Town C once her operation was scheduled for a period of up to 12 weeks after her operation.
On 19 February 2018, the mother’s Counsel indicated that the mother was about to have another operation and was living in Town D, NSW, where she has cousins.
On 21 June 2018, the father filed an application in a case seeking orders for the mother and children to return to Victoria and live within 50 kilometres of his home, the children to be enrolled in a Victorian school, the parties to enrol with Togetherness Family Supervision, for the father to have supervised time and for the parties to attend for a private family report.
On 28 June 2018 I made the following orders by consent:
1. That within 28 days, the mother make, file and serve an affidavit setting out the following:
a. The current day to day care arrangements for the children;
b. The day to day care arrangements for the children while the mother is in hospital;
c. The day to day care arrangements for the children upon the mother’s discharge from hospital; and
d. The children’s knowledge about their mother’s current circumstances.
2. That within 28 days, the mother provide a report from her surgeon and any other treating health professional including any psychologist, psychiatrist and GP as to the following (where relevant):
a. The outcome of any previous operation;
b. Current prescribed medication and the purpose, dosage and duration required for that medication;
c. When the next operation is to occur and the purpose of that operation;
d. The recovery period expected;
e. Prognosis;
f. Whether the prescribed medication affects the mother’s capacity to properly parent the children; and
g. Expected outcome from any required operation
NOTATION
A. In the event the mother fails to comply with orders 1 & 2, the ICL may seek orders on 6 August 2018, for the mother to deliver the children to the child minding facility at the Melbourne Registry on 24 September 2018.
The father filed an amended application in a case on 31 July 2018 seeking a recovery order for the children.
On 7 August 2018, I made further extensive orders which were in summary:
a)adjourning the father’s application in a case to the final hearing;
b)ordering the mother to personally attend Court for each day of the final hearing;
c)ordering the parties to file trial affidavits on or before 7 September 2018;
d)ordering the parties to attend Ms E for private family report at the father’s expense;
e)orders under section 69ZW and 91B of the Family Law Act directed to the Department of Health and Human Services Victoria and the Department of Family and Community Services New South Wales; and
f)a request for the Children’s Court of Victoria file to be produced to the Court.
On 19 September 2018, the solicitor for the mother sent my Chambers a request to appear via video/telephone at the trial, which at that time was listed for 24 – 27 September 2018. I listed the matter for a Mention Hearing on 21 September 2018 to discuss the mother’s request to appear via video or telephone. My Chambers asked the solicitor for the mother to make enquiries with respect to the logistics of a videoconference hearing, such as how and where it would occur, prior to the Mention Hearing.
On 21 September 2018 I made the following orders:
1. The final hearing dates of 24 and 25 September 2018 be vacated, noting that the final hearing will commence on 26 September 2018 at 10.00am.
2. The mother is to attend Court in person on 26 September 2018.
3. The Deputy Principal Registrar provide to the Department of Family and Community Services (NSW) (“FACS”) a copy of the subpoenaed documents as identified by the parties being Annexure A to these Orders, the Department of Health and Human Services response to the s.69zw order, the affidavit of Ms Jeffs filed 20 September 2018, the affidavit of Mr Marshall filed 17 September 2018, the affidavit of Ms F filed 17 September 2018, and a copy of the Family Report prepared by Ms E dated 21 September 2018.
4. That the parties be granted leave to file subpoenas with short service for Mr G, the Maternal Grandmother Ms H, any treating doctors of the mother, Victoria Police and any other subpoena that is required.
5. All subpoenas that have been issued be released to the parties for inspection.
6. General liberty to apply is granted to the parties.
7. All parties be granted leave to contact Chambers directly with respect to the release of any further subpoenaed documents.
8. The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the documents produced by the Department of Health and Human Services (“The Department”) in response to the s.69ZW order made 7 August 2018 in these proceedings.
9. The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.
THE COURT REQUESTS THAT:
10. The Victoria Legal Aid funding for the mother’s representation continue.
On 26 September 2018 I made the following orders:
1. The matter be adjourned to 25 and 31 October 2018 and 1, 2, 7, 8 and 9 November 2018 at 10:00am for final hearing.
2. The mother MS JEFFS (“the mother”) attend in person for each day of the trial and if the mother seeks to be excused she must provide an affidavit by her treating specialist and that specialist must be available to give evidence.
3. Parties be granted leave to approach chambers with respect to the release of any subpoena documents for inspection and/or photocopying.
…
THE COURT REQUESTS THAT:
6. The Victoria Legal Aid funding for the Independent Children’s Lawyer continue due to the special circumstances of this case.
AND THE COURT NOTES THAT:
A. The court may make an order for the children to be produced during the trial.
B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
BY CONSENT IT IS ORDERED:
1. That within 48 hours from the date of this order, the parties do all acts and sign all documents necessary to engage with ‘Contact Centre for Children, NSW (the service) and in particular complete:
a. Service Agreement Form; and
b. Referral form
2. That the father spend time with the children, supervised by the service as follows:
a. Saturday 6 October 2018 from 12 midday until 3pm; and
b. Saturday 20 October 2018 from 12 midday until 3pm
Or such other days and times as may be nominated by the service.
3. That the father’s time with the children occur at Play Centre, Suburb J NSW or at such other children’s play centre nominated by the service and within a 5km radius from Sydney domestic terminal.
4. That the father be responsible for the cost of the supervision.
5. That the father obtain an observation report from the service, at the father’s expense.
6. The father file and serve an affidavit annexing the observation report by 25 October 2018.
On 22 October 2018, the mother’s solicitor emailed my Chambers seeking an adjournment of the first date of the trial and advising that the mother had undergone surgery on 20 October 2018 at … Hospital. All parties agreed to the adjournment of the first day of the trial.
On 23 October 2018 I made the following order in Chambers:
1. The final hearing date 25 October 2018 be vacated.
2. The matter be adjourned to 31 October 2018 and 1, 2, 7, 8 and 9 November 2018 at 10:00am for final hearing.
3. The mother MS JEFFS (“the mother”) attend in person for each day of the trial and if the mother seeks to be excused she must provide an affidavit by her treating specialist and that specialist must be available to give evidence.
IT IS ORDERED BY CONSENT THAT:
4. Dr K have leave to inspect any medical advice, treatment plans or report documents produced under subpoena in relation to Mr Marshall.
On 31 October 2018, I made orders which required the mother to attend in person on 7, 8 & 9 November 2018. I refused the mother’s request to give evidence by telephone or video link and gave brief reasons. I adjourned the trial yet again. I also ordered in the event the mother did not attend in person that leave be granted to the father and Independent Children’s Lawyer to proceed on an undefended basis.
On 7 November 2018, I struck out the mother’s initiating application and ordered that the trial proceed on an undefended basis with respect to the mother’s case due to the mother’s non-attendance at court. I refused the mother’s Counsel’s oral application to adjourn the trial on that occasion.
This trial has had many false starts, largely due to the mother’s conduct. However, the mother’s Counsel emphasised the surgeries that the mother has had on her leg and the risk that her leg was to be amputated. She very much sought to convey the impression that all of the delays are beyond her control and that the mother’s failure to comply with orders has been due to the extenuating factors, rather than due to deliberate non-compliance on her part.
This submission needs to be seen against the background of the mother’s breach of orders which required her to return to Victoria after a 12 week period of recuperation. The mother has been in breach of this order for many months. Furthermore, she has not remained in Town C, NSW, but has lived in several different locations in NSW. Her Counsel’s submissions with respect to her difficulty in affording the cost of travel and her limitations in travel need to be seen against this background. The mother did not file medical evidence that was sufficient to support her claims nor her application to appear by videolink or telephone throughout the trial.
It also needs to be seen against the background where there are real concerns about the welfare of the children in the mother’s care. There are real concerns about the mother’s capacity to care for the children properly which goes beyond providing physical care. The issue of the welfare of the children must outweigh the case management issues. The trial could not be delayed any further.
The mother’s Counsel also submitted that the mother had been unable to afford the costs of flights but would show proof of flights for the next day. The father’s and the ICL’s Counsel objected to the adjournment and I refused the application. The mother has simply given too many excuses and has been given too many chances to participate in the trial. I also granted leave to the ICL and the father to proceed undefended.
The mother appeared in court at 3:43pm on 8 November 2018, which was the second day of trial. She attended court late on 9 November 2018, which was meant to be the third day of the trial and which had to be adjourned because Counsel for the ICL was extremely unwell. The court observed that Counsel for the ICL had difficulty standing without assistance and Counsel for both the father and mother quite properly did not oppose an adjournment in those circumstances. The mother’s Counsel sought to proceed with the application of the matter to become fully defended. I refused to hear that application given the illness of Counsel for the ICL and informed the mother’s Counsel that she could bring that application when the trial resumed on 19 November 2018.
This was not the first time the mother’s Counsel sought to make that application. When the mother’s Counsel first raised this application on 8 November 2018, the mother was not even in court.
Mother’s oral application to proceed defended
When the trial resumed on 19 November 2018 the mother’s Counsel made an application for the trial to become fully defended with the mother being able to rely on her affidavit and those of her witnesses and for the mother and her witnesses to be cross-examined. Both the father and the ICL opposed the mother’s application. Counsel for the ICL submitted that presumably the applicant was reliant on rule 16.05(2) of the Federal Circuit Court Rules 2001 seeking to vary or set aside an order made in the absence of a party:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the judgment or order; or
(h) there is an error arising in the judgment or order from an accidental slip or omission.
Despite the matter being adjourned for more than a week, the mother did not file any material in support of her application. The mother’s Counsel sought to rely on medical evidence which had not been filed and served. She submitted that evidence would contradict the medical evidence previously filed on her client’s behalf. The mother chose to rely on that medical evidence in support of her earlier application. I refer to my reasons given on 31 October 2018. This again needs to be seen in the context of the mother having numerous opportunities to gather and place such medical evidence before the court as she thought appropriate. Detailed orders were made with respect to this on 28 June 2018 and with which the mother never complied.
The mother’s Counsel relied on the case of Scheibner-Grover (now Grossman) and Ryan (1987) FLC 91-833. In that case the court upheld an appeal from the trial judge’s decision to list the matter for hearing on three hours’ notice. The complaint was based on a denial of natural justice because the husband was not given a fair and reasonable opportunity to prepare his case and to appear at the hearing.
The mother’s Counsel also referred to Halsbury’s Laws of England and quoted “no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is the cardinal principle of justice”. I do not cavil with the importance of that principle. It simply is not accurate to suggest firstly that the mother is not on notice of the allegations or that she has not been given a fair opportunity to be heard.
The mother has been on notice for some months now that it is the father’s application for the children to live with him. She is on notice that he sought to proceed with an interim application to that effect.
It is worthwhile setting out the following parts of the decision in Scheibner-Grover (now Grossman) and Ryan which refers to earlier decisions on this point:
In Taylor v. Taylor (1979) FLC 90-674 at p. 78,596 Mason J. said:
``The Full Court should then have approached the case on the footing that it was prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case. As Jenkins L.J. said in Grimshaw v. Dunbar, [1953] 1 Q.B. 408, at p. 416:
'... a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case no doubt on suitable terms as to costs, as was recognized in Dick v. Piller [1943] K.B. 497.'''
The mother’s situation is very different to that in the above case. It is important to emphasise that natural justice requires a party to be given a reasonable opportunity to be heard and present his or her case. That does not mean the litigant can dictate terms as to when and how they participate. It is up to the litigant to take up the opportunity given to them to be heard[1]. For a variety of reasons a party may not take up those rights and a court cannot compel them to do so.
[1] See the comments of Kirby J in Allesch v Maunz (2000) 203 CLR 172 when discussing the right of the party to be heard.
The mother’s Counsel submitted that there was no prejudice to the father as he could be recalled to give further evidence just as the family consultant was being recalled. She further submitted that whilst the applicant was late she was now in court and is entitled to be heard and present her case in circumstances where she was prevented from attending due to accident or mishap. This submission mischaracterised what has occurred.
The mother’s Counsel relied on Cooke & Morton [2018] FamCAFC 9. In that case the father was in hospital on the date of the trial. The father had engaged lawyers up until two days before the trial. He did not file any material and did not make a formal application for an adjournment. The trial judge treated correspondence from the father as an application for an adjournment. The mother and ICL opposed the adjournment. The trial judge heard the case and reserved the decision. The father did not make an application to set aside of vary the orders. He unsuccessfully appealed, arguing that he had been denied natural justice. I observe that in that case the father was not present at any part of the trial and did not have a legal representative obtaining instructions, cross-examining the witnesses and making submissions.
The father’s Counsel submitted that the mother has been given numerous opportunities to appear and participate in the hearing. She pointed out that her client, who is privately funding his legal fees, has attended court in person on time on each occasion that the matter has been listed. She referred to the orders made on 23 October 2018 adjourning the hearing and giving the mother a further opportunity to appear.
She further submitted that the mother’s own medical evidence did not support her application when she made her application to appear by videolink or telephone. At [3] of my reasons in Jeffs & Marshall [2018] FCCA 3185, I outlined that evidence as follows:
The mother filed an affidavit by Dr L on 20 October 2018. In his letter annexed to that affidavit he states that the mother underwent an operation on 19 October 2018 and was expected to be an in-patient at the hospital for three to seven days, and thereafter discharged. He says that she will not have any restrictions on travel or her ability to attend Court, other than she is non-weight bearing in one leg and needs to keep the leg elevated the majority of the time. He also referred to the pain medication that she is on which causes lethargy.
The father’s Counsel noted that the mother now sought to discredit the evidence of Dr L, whose evidence she had relied upon previously. Counsel for the father submitted that the subpoenaed records from the hospital show the Dr L was part of the mother’s surgical team for the mother’s most recent operation, placing him in a good position to comment on her fitness for travel. Dr L was asked if the mother was able to travel and he said she was. The father’s Counsel also complained that the mother’s solicitors had said in correspondence between the parties that the mother was in hospital for a month, however the subpoenaed records show that the mother was in hospital for a week. .
The father’s Counsel submitted that mother’s claims about being unable to afford flights was another fiction given that even if she had made the flight she had originally booked she would have been an hour late for court. She further submitted that it is hard to argue that the mother could not afford the flights when she was throwing away significant costs on missed flights. It should also be remembered that the mother is incurring these costs as she remains in breach of orders which required her to return to Victoria.
The medical evidence also shows that the mother was aware in June 2018 that she needed an operation in October, but did not inform the parties or the Court. Rather, she only raised it at the last minute as another attempt at delay.
The father’s Counsel also referred to the mother’s serial non-compliance with orders, including the recent orders for the father to spend supervised time with the children in New South Wales at considerable expense to him. She submitted that the only way to address the prejudice to the father, if the mother was now allowed to participate in the proceedings, would be for the children to be brought to Victoria to spend time with the father. The father’s Counsel referred to the case of Tate & Tate [2000] FamCA 1040 and submitted that compliance with Court orders is essential to the proper working of the court system.
She further submitted that the mother’s flagrant non-compliance with orders is not limited to orders of this Court but also with respect to the Children’s Court and the Magistrates Court. There is a real risk to the administration of justice to now permit her to participate. If she is permitted to participate in the proceedings then the children should be brought to Victoria. The mother has family members in Town M in Victoria.
Counsel for the ICL also opposed the mother’s oral application. She pointed out that although it was an oral application and it was made on notice, it was unsubstantiated by any affidavit material.
Counsel for the ICL submitted the only order to which this application could apply was the order made on 7 November 2018 striking out the mother’s application. She argued that the order made on 7 November 2018 was not an interlocutory order and that rule 16.05(2) is the only basis for the application.
With respect to the operation of rule 16.05, Counsel for the ICL referred to Harper & Harper [2016] FCCA 1603 which was a property case. His Honour Judge Harman refers to the decision of Clifford & Mountford [2006] FMCAFam 450 by Federal Magistrate Jarrett (as he then was) and particularly with respect to [7] to [34]. What is clear from the wording of rule 16.05(2) is that the power to set aside orders made in the absence of a party is discretionary.
In Barbey & Tuttle [2013] FamCAFC 44 the Full Court considered an appeal from refusal to set aside orders and at [48] said the following:
48. His Honour began by stating the rule, and quoted from the case of Clifford & Mountford [2006] FMCAfam 450 as authority for the “usual, but not exclusive considerations” for an application under r 16.05(2)(a) (at paragraph 5):
“34.From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):
a) The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b) There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely:
i) a reasonable explanation for the applicant's absence at the trial or hearing;
ii) material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii) no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
b) Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i) Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii) Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii) the conduct of the applicant since the judgment or order sought to be set aside was made.”
(Bold emphasis added)
The Full Court then considered these matters in turn before concluding that at [90] the trial judge considered each of the three factors identified and that the trial judge was not bound to or prevented from putting more weight on one factor than another. The Court is not limited to those three factors.
At [37] of Harper & Harper the Court referred to whether or not there is an explanation as to the absence of the party at the hearing which is reasonable. The only relevant document the mother relied on is the affidavit of her doctor, Dr L, filed on 29 October 2018. The letter annexed to that affidavit stated that “[the mother] will not have any restrictions on travel and ability to attend court” She was able to travel. As such, the submission that her absence was due to medical grounds was unsatisfactory. With respect to her claims of financial hardship, there is no evidence before the court as to her financial situation. Given the gap between the hearing dates, she could have brought an application in a case with supporting evidence.
Counsel for the ICL indicated that she was not able to find any case law addressing the issue of seeking to participate in a hearing that is part heard which has proceeded on an undefended basis. Counsel for the ICL submitted that as the mother has not filed any further material the only material is that which was already before the court on 7 November 2018. There is no evidence before the Court about the mother’s finances, although I note the mother is legally aided. The mother had the opportunity to file an application and supporting affidavit but failed to do so. The mother has not filed any material that can satisfy the Court that it would have made a different order to the order made on 7 November 2018 if the evidence had been available had been available at the time.
The ICL’s Counsel pointed out that the trial has run for a number of days on an undefended basis. The father and the ICL would be prejudiced by the mother being allowed to defend the case at this stage as counsel may have asked other questions of witnesses. Recalling witnesses will lengthen the trial, in addition to the mother and her witnesses being called.
The ICL’s Counsel submitted that the prejudice to the mother, which her Counsel has not elucidated, must be with respect to the absence of evidence led by the mother and her witnesses. The Court cannot have confidence that the mother will attend court in the future on time every time. The mother was not in Court on 31 October or 7 November and did not attend on 8 November until 3.43pm. She was late to Court on 9 November. The Court cannot be confident that the mother will turn up for each subsequent day of the trial on time.
Further to the issue of prejudice the mother’s Counsel has been in court each day of the trial and has cross-examined witnesses and can continue to do, as well making objections to evidence and make submissions.
Counsel for the ICL then submitted that the natural justice argument is separate to the operation of rule 16.05. It has always been in the mother’s hands whether or not she attended court. She then referred to [33] of Cooke & Morton, the case the mother relied on, which says:
33. As the authorities show, it is a fundamental general principle of natural justice that a party to litigation has a prima facie entitlement to have the proceedings heard in the party’s presence and to be given an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made. The opportunity to be heard usually includes the right to know the case advanced against the party; the opportunity to answer that case; the opportunity to dispute an opponent’s case by cross-examination of the opponent’s witnesses; and the right to adduce evidence in support of the party’s own case and to make submissions, before an order is made. Generally, when an order is made by a court in the absence of a party (whether that absence is, or is not, the fault of the absent party) there exists jurisdiction and a discretion for the Court to set aside the order (Taylor v Taylor (1979) 143 CLR 1; Kioa v West (1985) 159 CLR 550; Stead v State Government Insurance Commission (1986) 161 CLR 141; Allesch v Maunz (2000) 203 CLR 172; and the authorities cited and discussed in those cases).
The mother has the right to be heard and she has had the opportunity to be heard. She has Counsel representing her and she knows the case presented against her. She has chosen not to exercise those rights, despite being on notice that the trial would proceed in the manner that it has if she did not comply with court orders and attend the beginning of the trial.
In the case of Taylor the discretion as to whether or not to set aside the order applies whether or not the absences is the fault of the absent party. There is no new evidence before the Court such that it could be satisfied that it is appropriate to set aside the order made on 7 November 2018 because it is not only the mother’s absence on that day that is relevant but also her continuing conduct with respect to orders of this court.
It is not only the mother that needs to be accorded procedural fairness. It is also the father and the Independent Children’s Lawyer. The High Court recognised this in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 on 5 August 2009. Significant public resources have been given to this case. The mother and the ICL are funded by legal aid. The Court has also used considerable resources at the expense of other cases which have been delayed. Another consideration referred to by the High Court in Aon Risk is the need to ensure the public maintains confidence in the judicial system.
The ICL’s Counsel further submitted that if the mother’s application was successful there would be further prejudice as the trial would take several more days and would involve further delays.[2] At the time of making her submissions the ICL’s Counsel was hopeful of the matter concluding by the Wednesday of that week.
[2] As it turns out even on an undefended basis the case has far extended beyond time anticipated, in large part because of the need to take oral evidence from witnesses subpoenaed to give evidence and the volume of subpoenaed material tendered into evidence.
If the mother was successful in her application it was likely that the trial would be lengthened by several days and the prejudice to the other parties cannot cure by costs the fact that the mother is in receipt of legal aid which is indicative of her lack of capacity to comply with an order for costs.
Conclusions about the application
As I indicated at the conclusion of oral argument, I accept the submissions of the ICL.
I am satisfied that it is appropriate to consider the mother’s application as being pursuant to rule 16.05(2)(a).
The mother’s complaints that she has not been afforded procedural fairness is without merit.
The mother’s explanation for her absence on 7 November 2018 is unsatisfactory. She has not filed any supporting evidence but makes submissions seeking to contradict the medical evidence she relied on and raises issues of financial hardship.
This case has already expended considerable public financial resources and the private financial resources of the father. As stated earlier any hardship the mother is experiencing with respect to traveling must be seen in the context of the mother being in breach of orders for many months.
The mother is unable to point to the likelihood of different orders being made as she has not filed any evidence in support of her application. There is considerable force in the ICL’s submissions that the court could not be confident that if her application was granted that she would attend each day of the trial.
Then there is the issue of prejudice. The prejudice to the father in particular, but also the public resources of legal aid cannot be remedied by a costs order.
Importantly, it must be emphasised that this case concerns serious issues of risk with respect to two young children. This is not about enforcing case management procedures without regard to the interests of justice. It is precisely because of s.60CA and the concerns about the risk to the children in the mother’s care that the trial commenced and must proceed.
It is not enough to simply complain that the mother has not been afforded natural justice. A breach of natural justice alone does not automatically entitle a party to relief. It is necessary to consider the consequence of the breach. The mother’s Counsel has failed to grapple with the natural justice arguments. It is abundantly clear that the mother has been accorded procedural fairness. Furthermore she has been granted indulgences with adjournments which were not by consent.
For these reasons I dismiss the mother’s oral application.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 31 January 2019
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