KERR & KENNETT - [2019] FamCA 885

FAMILY COURT OF AUSTRALIA

KERR & KENNETT

[2019] FamCA 885

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Where the father did not appear at the commencement of the trial, having indicated the same to the Independent Children’s Lawyer – Where the father was advised of the importance of appearing at the trial – Where the father was given appropriate notice of the hearing of the matter – Where the trial is to proceed in the father’s absence.

Family Law Act 1975 (Cth)

Allesch & Maunz (2000) 204 CLR 172
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteLam (2000) 214 CLR 1

APPLICANT:

Ms Kerr

RESPONDENT:

Mr Kennett

INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

FILE NUMBER:

MLC

6702

2012

DATE DELIVERED:

20 November 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pendergast

SOLICITOR FOR THE APPLICANT:

Munro Legal Pty Ltd

RESPONDENT:

No appearance for or on behalf of

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

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 Kerr & Kennett 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 BRISBANE

FILE NUMBER: MLC 6702 of 2012

Ms Kerr

Applicant

And

Mr Kennett

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

I have today an application made on behalf of the mother that the hearing listed for three days to commence today before me proceed in the absence of the father.
This application is supported by the Independent Children’s Lawyer.
Authority clearly establishes that the Court is obliged to ensure a fair trial and to afford procedural fairness to all parties. Authority also clearly establishes that fairness is not an abstract concept, but is essentially practical and whether what is spoken of is spoken of in terms of procedural fairness or natural justice, the law is concerned to avoid practical injustice: see, for example, the comments of Gleeson CJ in Re Minister of Immigration and Multicultural and Indigenous Affairs; ex parte Lam.
One of the essential tests to determine whether fairness is afforded to parties is that such parties should have a reasonable opportunity to present his or her case.
The well-known comments of Kirby J in Allesch & Maunz[1] at paragraphs 35 and following until and including paragraph 40 are particularly relevant to the present case and the present application.
[1] (2000) 204 CLR 172 at [35]-[40].
In summarising those, it is clear that His Honour said – and I think it is uncontroversial – that what is required of the Court in discharging one of the fundamental principles of justice is to afford to a person whose interests may be adversely affected by a decision to be made an opportunity to present material information and to make submissions relevant to any such decision before it is made. It has often been said that such a principle lies deep within the common law and it has also often been said that it is a principle that may be regarded as:
…an indispensable requirement of justice.
However, as Kirby J also noted, in particular at paragraph 38 of his Honour’s reasons in Allesch & Maunz,[2] the application of the principle I have just summarised does not require that the decision-maker actually hear or receive submissions of the party potentially liable to be adversely affected. As his Honour said:
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.
[2] (2000) 204 CLR 172 at [38].
And further at paragraph 40 of his Reasons:
Courts are not 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 to them who can explain their case or the case for an adjournment.
It is clear, as his Honour also noted, that the Court must consider not only the rights of the mother and the children in this particular case but also:
…the rights of the public in the efficient discharge by courts of their functions and these must be weighed against unreasonable delay in concluding the litigation.
As Ms Pendergast, who appears on behalf of the mother, has submitted these proceedings - albeit in varying forms and in varying courts exercising jurisdiction under the Family Law Act 1975 (Cth) - have been ongoing for a significant period of time. Recourse to the Court record will reveal that a relatively large number of orders have been made, including by Judges of this Court, prescribing the children’s time with their father. Despite those orders, the evidence stablishes that, save for interaction during an interview for the preparation of a Family Report – the interview having occurred in September 2018 – the children have not spent any in person time with their father since about mid-2018. On the mother’s evidence before the Court, the children’s communication with their father has occurred this year on an approximately monthly basis.
That is also, it seems to me, a relevant consideration in determining whether to exercise the discretion to proceed to hear the proceedings in the absence of the father today.
Further relevant considerations are as follows.
The matter was listed for final hearing today by orders made by Baumann J on 27 June 2019. The orders made by his Honour that day listed the matter for not more than three days commencing in the week of 18 November 2019. His Honour also made Directions in relation to the filing of affidavit material.
These Directions provided that, by no later than 4.00 pm on 30 October 2019, each party file and serve one consolidated affidavit of evidence-in-chief and one affidavit from any witness intended to be relied upon at the trial. His Honour also made orders in relation to the filing of a Case Outline document containing a precise Minute of the Final Orders sought, a relevant chronology, a list of affidavits and applications and/or responses to be relied upon at trial, with such document to be filed and served by no later than 4.00 pm on 13 November 2019. The Order made by Baumann J in June also specifically provided that this matter was listed within a rolling list and that the parties would be given at least 24 hours’ notice of a date or time for the commencement of the trial.
In fact, the matter was listed before me thereafter and given a specific starting date of today.
At the time Baumann J made Orders in June of this year, the father was represented by the firm H Lawyers who are located in Suburb J in Victoria. On 1 October 2019, those solicitors filed a Notice of Ceasing to Act. That document outlined that it was known at that time that the proceeding was listed before the Court at 9.30 am on 21 October 2019 - that was for the purpose of a compliance or case management hearing which I conducted on that date.
Reference to the record makes it clear that the father did not appear on 21 October 2019.
As a consequence of his former lawyers ceasing to act and the operation of s 102NA of the Family Law Act 1975 (Cth) (to which Baumann J had made specific reference in the Orders he made on 27 June 2019) I directed that a copy of a Transcript of the Proceeding on 21 October 2019 be obtained, marked as Exhibit “A” and provided to the parties by email. I also directed that the Independent Children’s Lawyer correspond with the father to draw his attention to the contents of Notation C of the Order made by Baumann J on 27 June 2019 in relation to the existence or availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which the father may apply to that scheme for provision of a lawyer.
The Independent Children’s Lawyer was also required, as a consequence of the Direction I made on 21 October 2019, to urge the father to immediately take steps to make such application to such a scheme.
It is clear from the contents of Exhibit 1 that the Independent Children’s Lawyer complied with the Direction I made on 21 October 2019 and forwarded an email to the father. It is clear from reference to that email that the Independent Children’s Lawyer complied completely with the Direction and also informed (or confirmed) to the father that this proceeding had been set for final hearing for three days - at that time, it was said to be from 18 to 20 November 2019.
Reference to Exhibit 1 also establishes that, on 11 November 2019, the Independent Children’s Lawyer followed up the email sent on 21 October 2019 and requested that the father advise by return email whether he intended to participate in the final hearing or not. The Independent Children’s Lawyer also sought that the father advise by return email whether he had contacted either Legal Aid Victoria or Legal Aid Queensland in relation to obtaining a grant of legal assistance for the hearing, given the provisions of s 102NA of the Family Law Act 1975 (Cth).
Exhibit 1 contains an email sent by the father to the Independent Children’s Lawyer on 11 November 2019. In that document the father advises the Independent Children’s Lawyer that he would not be able to attend the Family Court matter and would like to adjourn it. He outlines, amongst other things, that he is on the verge of bankruptcy and has no money for flights or accommodation. He also advises the Independent Children’s Lawyer, amongst other things in that email, that he is in a new relationship which he had kept secret from the mother because of his assertion that she had “destroyed” his last relationship as a consequence of what he described as her “constant badgering” and “false allegation of criminal and drug behaviour”.
The father’s email also advises the Independent Children’s Lawyer that he had only just obtained full-time employment in North Queensland and that he would be able to afford proper “leg” – clearly “legal” – representation in six months.
Exhibit 1 establishes that the Independent Children’s Lawyer responded to the father’s email by email sent on 12 November 2019. In that email, the Independent Children’s Lawyer advised the father of her position in relation to his request in relation to seeking an adjournment of the matter: namely, that she did not agree to such adjournment. The Independent Children’s Lawyer also advised the father as follows: “It is imperative that you make arrangements to attend Court on the first day being Wednesday 20 November 2019.”
Exhibit 1 also contains a copy of the father’s email response sent on 12 November 2019 to the Independent Children’s Lawyer. The father’s response includes that he had previously applied for Legal Aid and did not qualify - although that seems to ignore the Notation contained in the Order made by Baumann J in June 2019 and the information conveyed by the Independent Children’s Lawyer on 21 October 2019 as a consequence of the direction I made that day. In the father’s email he asserts that he wants to but cannot attend Court today; that he does not have any money and does not consent to the children going to England to live.
The Independent Children’s Lawyer replied to the father’s email on 12 November 2019 to advise that she had previously informed the father on two occasions that he should contact either Legal Aid Victoria or Legal Aid Queensland for legal assistance given the amendments to the Family Law Act 1975 (Cth) which relate to cross-examination when domestic violence is alleged by either party.
The Independent Children’s Lawyer also relevantly advised the father: “The applications for legal assistance in these circumstances are not means or merit tested.” She reiterated her position in relation to the father’s proposal that the hearing today be adjourned and advised him that it was imperative that he make arrangements to attend Court on the first day of the hearing, being today.
My Court Officer has called the father’s name three times. It is clear that he is not present. It is in that context, then, that Ms Pendergast, on behalf of the mother, made the application that she has.
It is also relevant to my determination of such application to note that, despite Directions made by Baumann J in June of this year to facilitate the matter being heard finally today and thereafter, the last affidavit filed by the father was one sworn or affirmed by him on 5 July 2018, which was sealed in the Court on 6 July 2018.
It is also clear though that, despite not filing affidavit material, the father has been afforded the opportunity to participate in each of the Family Report interviews conducted by Ms G: the first occurred, as I earlier said, in September 2018 (which resulted in the preparation of her report dated 24 March 2019) and the second set of interviews occurred in October 2019, which resulted in the preparation of her most recent report. Consequently, a further matter to be taken into account in dealing with the application to proceed to hear and determine the matter in the father’s absence is the potential cost to the public purse of any adjournment in that, if such adjournment were granted, it is highly likely that Ms G would be required to prepare a third Family Report at, as I have said, cost to the public purse.
In addition, if an adjournment of the hearing today was granted, those matters which have not been brought on because this matter has been listed will have missed the opportunity to be heard: in that sense, one of the very matters to which Kirby J alluded in his Honour’s Reasons, to which I have already made reference, would occur.
Further evidence in relation to the father’s knowledge of the commencement of the hearing today is contained within the affidavit of Ms K, sealed 18 November 2019. The contents of that affidavit makes it clear that the mother’s solicitors wrote to the father on 12 November 2019 to advise him that the mother did not agree to an adjournment of the matter; to reiterate that it remained listed for hearing commencing today and to place the father on notice that, if he did not attend at court, the mother would seek, by way of final order, that she be accorded sole parental responsibility for the major long-term issues relating to the children, that the children live with her and that she be permitted to relocate them to live in the United Kingdom.
This correspondence was, in a sense, re-sent to the father by email sent on 17 November 2019.
There is nothing in Ms K’s affidavit to suggest that the father responded to either of the emails sent on either 12 November 2019 or 17 November 2019.
In the circumstances I have outlined, I am easily persuaded that the father has had appropriate notice of the hearing of this matter. I am easily persuaded that he has been accorded that which fairness requires him to be accorded: namely, the opportunity to present evidence and to be heard in relation to the orders sought by the other parties to the litigation.
In determining to proceed to hear the matter in the father’s absence, I have accorded greater weight to the potential impact on the mother and the children of failing to hear and determine the matter today in the context of this particular proceeding and on the rights of the public to the efficient discharge by Courts of their functions than to providing the father with a further opportunity to be heard.
For those reasons then, I accede to the application made by Counsel for the mother on behalf of the mother, supported by the Independent Children’s Lawyer, and intend to proceed to hear the matter in the father’s absence.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 November 2019.

Associate:

Date: 20 November 2019