LEAGER & HEDLIN

[2020] FCCA 2618

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEAGER & HEDLIN [2020] FCCA 2618

Catchwords:
FAMILY LAW – Children – final parenting orders – application for leave to proceed on an undefended basis – mother initiated proceedings – where the mother has put no evidence before the Court in accordance with trial directions – where the mother has not filed any substantive material since March 2019 – where the father’s evidence is unchallenged – where the mother accorded substantial notice the father may seek leave to proceed on an undefended basis – where the father seeks final orders for sole parental responsibility – where the Court is satisfied that the mother had been given notice of the proposed orders – where the Court was satisfied  that the mother knew of the risk of orders being made in her absence – where the Court is satisfied that the mother has been accorded with procedural fairness – leave granted to the father to proceed with his application for sole parental responsibility on an undefended basis – mother’s initiating application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03C(1)(c), (e)

Applicant: MS LEAGER

Respondent: MR HEDLIN

File Number: MLC 2802 of 2019

Judgment of: Judge C. E. Kirton QC

Hearing date: 3 September 2020

Date of Last Submission: 3 September 2020

Delivered at: Melbourne

Delivered on: 24 September 2020

REPRESENTATION

There being no appearance by or on behalf of the Applicant
Counsel for the Respondent:	Mr J. Korke

Solicitors for the Respondent: VM Family Lawyers

Solicitors for the Independent Children’s Lawyer: Lampe Family Lawyers

ORDERS

1. On default of appearance by the Applicant Mother and pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the Mother’s Initiating Application filed 18 March 2019 be dismissed.

2. Pursuant to r. 13.03C (1)(e) of the Federal Circuit Court Rules 2001 (Cth), the Respondent Father be granted leave to proceed on an undefended basis.

IT IS NOTED that publication of this judgment under the pseudonym Leager & Hedlin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2802 of 2019

MS LEAGER

Applicant

And

MR HEDLIN

Respondent

REASONS FOR JUDGMENT

Ex Tempore; Revised from Transcript

1. I will deal with the Application for leave.  This matter has been listed for the Final Hearing today.  It has been listed for a Final Hearing of two days.  Interim orders were made on 3 August 2020 and those interim orders provided that, in the event that the Applicant Mother (Mother) did not file trial material or did not appear at the Final Hearing of this Application on 3 and 4 September 2020, then the Respondent Father (Father) may seek leave to proceed with his Application on an undefended basis.  The Independent Children’s Lawyer was ordered to serve, pursuant to Order 2, a copy of the Orders of 3 August 2020 on the Mother within 7 days and to also serve an affidavit of service evidencing compliance with those orders within 14 days. 

2. I should indicate that this matter commenced by way of an Initiating Application that was filed by the Mother on 18 March 2019, and was supported by an affidavit of the Mother, which was filed on 21 March 2019. 

3. The Independent Children’s Lawyer served a copy of the Orders that were made on 3 August 2020 on the Mother on 4 August 2020 and filed an affidavit of service on 7 August 2020, deposing as to service of those orders by email, at the Mother’s email address.  So the Court, therefore, finds that the Mother has been notified that, in the event she did not either appear and/or file her trial material prior to today’s date, the Father may seek leave to proceed with his Application.

4. This morning, this matter commenced and the Mother had not appeared.  The matter was stood down and both the Independent Children’s Lawyer and Counsel for the Father made attempts to speak to the Mother.  The Independent Children’s Lawyer informed the Court later in the morning that he had spoken to the Mother and the Mother did, in fact, join the hearing this morning on the telephone.  The matter was then stood down to enable the parties to have some discussions, to see whether they could come to some consent agreement.  Counsel for the Father sent through a Minute.  The matter then, subsequently, came back prior to lunch and the Mother did not then join the hearing and could not be contacted. 

5. The matter has now recommenced at 2.15 pm after lunch and the Mother has still not re-joined the hearing either by way of videoconference on Teams or on the telephone.  Counsel for the Father has informed the Court that he has attempted to contact the Mother by mobile phone at 10.37 am, 11.08 am, 11.18 am, 11.59 am, 12.10 pm and 12.24 pm.  At 2.03 pm, he sent a text to the Mother advising the Mother that the Court would be resuming at 2.15 pm and that the Father would be making an application to proceed with the matter in relation to the children.

6. The Court also sent this morning, an email to the Mother, asking the Mother whether she consented to the proposed minute of consent orders that were emailed through to the Court.  That minute of consent orders was in the same form as the minute of orders sought by the Father in the Father’s Outline of Case. The Mother has not responded to the Court’s request for a response.

7. The Court, at the commencement of the hearing this afternoon, has also telephoned the Mother, and the Associate confirmed the telephone call has gone to voicemail.

8. Counsel for the Father has, therefore, made an application to proceed with the hearing of this matter on an undefended basis. The basis is that the Mother has not appeared, and that she has also not filed any trial material or any substantive material since the filing of the affidavit on 21 March 2019 which was in support of her Initiating Application.

9. The Court therefore grants the application to proceed on an undefended basis.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Associate: 

Date: 24 September 2020