Kalant and Jordain (No 2)

[2020] FamCA 448

FAMILY COURT OF AUSTRALIA

KALANT & JORDAIN (NO. 2) [2020] FamCA 448

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment of contravention proceedings pending outcome of further investigations – noncompliance with orders – non-attendance at directions – ability to receive email correspondence – failure to inspect material produced – adjournment application refused

Family Law Act 1975 (Cth) s 69ZW

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Kalant

RESPONDENT: Ms Jordain

INDEPENDENT CHILDREN’S LAWYER: Ms M Burgess

FILE NUMBER: PAC 2727 of 2015

DATE DELIVERED: 22 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 22 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bainbridge Legal

COUNSEL FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mary Burgess

Orders

1. The Mother’s Application in a Case filed on 21 May 2020 is refused and dismissed.

2. The Mother is entitled to remove the documents provided to her as the exhibit bundle from the Father, provided that those documents are not used for any other purpose other than for proceedings before the Family Court of Australia unless permission is obtained from the Court otherwise, and provided that at the expiration of the relevant appeal period those documents are returned to the Court for destruction.

3. I direct that the proceedings are adjourned until 10am on 28 May 2020.

4. I direct that the Mother is to attend those proceedings in person.

5. I direct that Mr Kalant and the Independent Children's Lawyer are to attend by video link.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kalant & Jordain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC 2727 of 2015

Mr Kalant

Applicant

And

Ms Jordain

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In this matter an application supported by an affidavit was filed yesterday by the Mother seeking an adjournment of the proceedings pending further investigations by Children Youth and Protection Services (“CYPS”) in relation to the child the subject of the proceedings, X.  It is necessary to canvass the recent history of this matter to determine why it is that I have now considered that it is inappropriate to hear the Mother's application in respect of that adjournment. 

2. The matter was transferred to the Family Court of Australia on 21 August 2019.  That transfer occurs in a context where the matter has previously been dealt with to finality by Judge Tonkin, whose determination in relation to parenting matters was supported by the Full Court when the matter was taken on appeal. 

3. On 9 December 2019 the Contravention Application filed on 10 April 2019 was adjourned for hearing to 23 and 24 January 2020.  On 23 January 2020 the Contravention Application was not heard, but rather it was determined that it was appropriate to reopen the proceedings, a Rice & Asplund issue having been raised in respect to the matters.  The parties were of one mind that the proceeding should be reopened, notwithstanding the final determination by Judge Tonkin.  The matter was then adjourned for directions, including directions in relation to Contravention Applications, to 26 February 2020.  On 5 February 2020 a further Contravention Application was filed and on 26 February 2020 those Contraventions were set for hearing on 16 April 2020 and a direction was made that if the Mother was to seek an adjournment she was to file an Application and material in support of that by 9 April 2020.  On 2 March 2020 a further Contravention Application was filed.  On 10 March 2020 that Application and the Contravention Application filed on 2 March 2020 were listed for hearing, along with the other Contravention Applications on 16 April 2020 and a s 69ZW order was made to CYPS.  On 12 March 2020 the Mother was served with the Contravention Application filed 2 March 2020.  When the matter came on for hearing on 16 April 2020 the Mother appeared by telephone, although arrangements had been attempted to be made for her to appear by video link.  Despite the Mother’s non-compliance with the Orders of 26 February 2020 in relation to filing material in respect of an adjournment application the Mother orally sought an adjournment and was granted an adjournment.  She was granted that adjournment on the basis that CYPS had not at that stage complied with the s 69ZW order, they having advised the Court of their incapacity to have done so at that stage.  The Mother’s submission was that CYPS material was necessary to consider in order to determine whether or not the proceedings could go ahead or whether due to an ongoing investigation in respect of X it was necessary to adjourn the contravention proceedings. 

4. On 29 April 2020 the s 69ZW Order was answered by CYPS. 

5. The matter previously having been adjourned for further directions to 8 May 2020, no appearance was made by the Mother on that occasion.  Orders were then made to set the matter down for hearing to 22 May 2020, along with directions providing the parties, including the Mother, with access to the CYPS material that had been produced.  Orders were made that if the Mother was to seek to adjourn the application or to adjourn the hearing of the applications she was to do so by 15 May 2020.  I note that the Independent Children's Lawyer advised the Mother by email of the arrangements in respect of the further hearing of the matter.  The Mother initially told me that she had no technology by which she would be able to receive that notification from the Independent Children's Lawyer but subsequently held up a phone in the Court room and purported to show me the email from the Independent Children's Lawyer and advised me that if I looked at it I could see that she had not opened it.  This disabused me of the notion that the Mother did not have access to technology which would have enabled her to see the Court orders that were made in relation to her matter, nor to receive the advice from an Independent Children's Lawyer.  Further, on 15 May 2020 the Mother was personally served with the Orders by the lawyers for the Father. 

6. I also pause to note that the Mother has taken no steps to inspect the material that has been produced by CYPS. 

7. On 21 May 2020 and in contravention of the Orders I had previously made in relation to the filing of an application for an adjournment, the Mother filed an Application and supporting affidavit, again purporting to require an adjournment due to an ongoing CYPS investigation.  Under the circumstances of the non-compliance with the various orders that have been made, non-attendance at directions and by a failure on the part of the Mother to inspect the CYPS material that she said was necessary to be produced so that she could determine whether or not the matters could proceed I decline to entertain her adjournment application.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 May 2020

Associate: 

Date:  4 June 2020