Kalant and Jordain (No 4)

[2020] FamCA 581

FAMILY COURT OF AUSTRALIA

KALANT & JORDAIN (NO. 4) [2020] FamCA 581

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – application for adjournment refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Kalant

RESPONDENT: Ms Jordain

FILE NUMBER: PAC 2727 of 2015

DATE DELIVERED: 10 July 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 10 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bainbridge Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The Mother’s oral application for adjournment is refused. 

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. This matter concerns an Application for an Adjournment that is made by Ms Jordain, who is the Respondent to the contravention proceedings.  Those contravention proceedings follow from Applications filed on 10 April 2019, 20 December 2019 and 2 March 2020. 

2. The matters came before the Court on 23 January 2020 on which occasion the Mother was present and made an Application for Adjournment.  The proceedings were then relisted for Case Management Directions to be given on 26 February 2020.  The Mother was directed to attend on that occasion in person. 

3. On 26 February 2020, the Mother did not attend in person but was reached on the phone and contravention proceedings were then listed for hearing on 16 April 2020.  The Mother was directed on that occasion that if she wished to pursue an adjournment she was to file an Application for Adjournment by 9 April 2020 and it was indicated to her that she would be permitted to lead oral evidence on the hearing of the matters. 

4. On 16 April 2020, the Mother declined initially to join the proceedings being conducted at that point by telephone.  She later joined by telephone and sought a further adjournment of the proceedings on the basis that she was waiting for the completion of a child protection interview and the preparation of reports by the child protection agencies.  The Mother was then granted permission to appear by video link on the next occasion.  The proceedings were adjourned to 8 May 2020 for further directions and in order for a contravention hearing date to be allocated. 

5. On 8 May 2020, there was no appearance by the Mother, although she sent an email asserting that she was unwell.  The proceedings were then relisted for 22 May 2020 and the Mother was required to attend in person on that day, or risk a warrant being issued for her arrest.  She was given permission to make an Application for an Adjournment by 15 May 2020.  The Mother attended on 22 May 2020 in person having filed an Application in a Case on 21 May 2020, which was refused and dismissed.  The matter commenced and the Father is under cross-examination.  The matter was unable to be completed due to timing constraints imposed by the COVID-19 pandemic.  The proceedings were then adjourned to 28 May 2020 and the Mother was directed to again attend in person. 

6. On 28 May 2020, the proceedings were unable to proceed on the basis that I was ill and unable to attend at Court.  An administrative adjournment was made deferring the matter to 5 June 2020.  On 5 June 2020, there was no attendance by the Mother.  The Mother was also telephoned but unable to be raised.  The proceedings were then adjourned until 10 July, being today, and the Mother was directed in Orders that were served upon her in person to attend in person.  The Mother was further directed in that Order to file any Application for Adjournment by 3 July 2020.

7. Today, the Mother has attended in person and has tendered a medical certificate which is Exhibit X1 in the proceedings.  That exhibit reads as follows, is dated 8 July 2020 and signed by Dr H:

   This is to certify that Ms Jordain has a medical condition and will be unfit to attend court on Friday 10th July.  She is suffering from anxiety, shortness of breath and palpitations.

8. The Mother asserts that she has a serious heart condition and it seems to be accepted that she has long asserted and suffered from various medical conditions, some of which were subject of evidence given before Judge Tonkin in the proceedings that occurred before her.  The Mother says that she is unfit to attend today, relies upon that medical certificate, seeks a further adjournment of the proceedings and says that the Court will need to call an ambulance if the proceedings are to continue today. 

9. The Application for Adjournment is opposed by the Father who notes that the Mother has not complied with previous Orders, including the Order that an Application for Adjournment should be received by 3 July 2020.  The Mother has offered no explanation for why medical material was not obtained for that particular deadline.  He also asserts that I should not be satisfied by the medical certificate and I observed that the medical certificate contains very little information and does not contain the basis upon which it is asserted that the Mother suffers from an anxiety, shortness of breath and palpitations and does so to an extent that means that she is unfit to attend and participate in the proceedings today.  He points also to her attendance today and so far her participation in the proceedings and I observe that to date she has been able to participate in the proceedings and articulate clearly to me the position that she wishes to pursue.  He notes the lateness of the material that has been brought before the Court.  His resistance to the further adjournment of the proceedings is supported by the Independent Children’s Lawyer. 

10. The Independent Children’s Lawyer notes that the Mother’s oral assertions in Court refer to a future need to attend upon a cardiologist.  The Mother asserts that she has a need to attend upon a cardiologist in order to obtain further medication or potentially undergo surgery.  The Independent Children’s Lawyer notes, as did the Father, that the Mother has long-standing anxiety symptoms.

11. Importantly, the Independent Children’s Lawyer notes that these proceedings have been severely delayed over a period of six months as has been outlined by me and that the delays are causing the substantive matters in relation to the child, who is not spending time with the Father, to also be delayed. 

12. It may be observed that it is in the child's interests that if the parties are sufficiently fit to participate in the proceedings that the proceedings continue to resolution so that the substantive matters in relation to the child may receive their proper attention. 

13. On the basis of the foregoing matters and on the basis that the Mother has failed to establish that she is unfit to participate in the proceedings today, to my satisfaction on the balance of probabilities, the Adjournment Application is refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 July 2020

Associate: 

Date:  13 July 2020