MERRITT & BRUCKNER

[2021] FamCA 279

FAMILY COURT OF AUSTRALIA

MERRITT & BRUCKNER [2021] FamCA 279

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Where judgment was reserved – Where the father made an application for delivery up of the children – Where the mother considered the current orders were no longer in the children’s best interests – Where the matter was listed for the hearing of further evidence – Where the mother failed to appear – Where the mother emailed the Court advising she was unwell – Where the mother was advised she could appear by phone – Where a medical report was provided to the Court – Where the report was unable to assist the Court in understanding whether in the proper administration of justice the proceedings should be adjourned – Where the Court attempted to contact the mother by email and phone – Where the hearing was adjourned for one day to give the mother an opportunity to provide further information or attend by phone.   

APPLICANT: Mr Merritt

RESPONDENT: Ms Bruckner

INDEPENDENT CHILDREN’S LAWYER: Duncan Basheer Hannon

FILE NUMBER: ADC 1267 of 2016

DATE DELIVERED: 12 April 2021

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 12 April 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts

SOLICITOR FOR THE APPLICANT: Daniel John Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Duncan Basheer Hannon

Orders

1. The Application in a Case filed 19 January 2021 be adjourned for further hearing to 10.00 am on 13 April 2021.

2. The transcript be ordered in respect of today’s hearing.

3. The costs of the father and the independent children’s lawyer of today’s attendance be reserved to 13 April 2021. 

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 Merritt & Bruckner 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 ADELAIDE

FILE NUMBER: ADC 1267 of 2016

MR MERRITT

Applicant

And

MS BRUCKNER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The parties remain in dispute in respect of the future parenting arrangements for the children, X born … 2012 and Y born … 2014 (“the children”).

2. The proceedings have been before the Court in one form or another since 2016.  Following a ten day final hearing, judgment was reserved on 15 October 2020.

3. Before judgment could be delivered the father filed an Application in a Case on 19 January 2021 seeking that the mother forthwith deliver up the children to the father and that if the mother should fail to comply, a recovery order should issue pursuant to section 67U of the Family Law Act 1975 (Cth) (“the Act”) with the intent that thereafter the children would live with their father until further order of the Court.

4. The application came before the Court on 23 February 2021.  The issues raised by the father were supported by an affidavit and were consistent with the broad thrust of his case namely, that the children reside with him.

5. The mother filed two affidavits in response to the application and arising from a distillation of the matters raised, it is apparent that each of the parties were not satisfied with the circumstances as they stood as at 15 October 2020.  In short, each of the parties considered that events since the reservation of judgment were so manifest in their impact upon the children, that it was appropriate for the Court to consider reopening the proceedings and allowing further evidence to be heard.  The application was initially not supported by the father, was supported by the independent children’s lawyer and ultimately supported by the mother in respect of her contention that the current orders, based upon orders made on 8 November 2015 which provided for the children to spend significant and substantial time in the care of the father, were no longer in the children’s best interests.  She seeks that there be a significant reduction of time that the children spend with the father. 

6. I ordered that further evidence be listed for hearing on 12 April 2021 with two days allowed.  Those orders provided for the affidavit material that the parties were to rely upon.  Orders were made that varied paragraph 2(a) of orders made 5 December 2019 in respect of the time that the children would spend with the father.  Order 5 changed the arrangements in respect of the upcoming school holidays, from the default position of the second half of the holidays as provided for in the orders of late November 2018 to a specified period from 5.00 pm on 11 April 2021 to 5.00 pm on 18 April 2021. 

7. In attendance today was the father who was represented by counsel and the counsel for the independent children’s lawyer.  The mother did not appear.  Neither counsel had any information from their instructing solicitors that had indicated that there was any communication with Ms Bruckner alerting them to the likelihood that she would not attend, providing any explanation or reason in respect of her proposed non-attendance or, in particular, providing any information as to the basis of any health issues.

8. The email communication passing between the Court and the mother is an important consideration.  As a result of the matter being called on, the Court became aware of communication forwarded by the mother to the Court at 9.03 am.  I have read out in open court the content, but, essentially, the email was directed to my associate and it indicated a basis for the mother’s non-attendance, namely, that she was suffering from a viral illness and her participation in Court proceedings was not currently possible.

9. I should also note that for uncertain reasons there has been an earlier communication at 9.00 am which provided the same narrative.  In open court the court officer tried to telephone the mother using her telephone details that are contained on the court file.  I am satisfied that the telephone number is current and that the court officer made all reasonable attempts to contact the mother. 

10. Out of an abundance of caution, the Court also forwarded to the mother at 11.30 am an email advising that the proceedings were not vacated but that they were adjourned for further hearing to 12.30 pm and, in particular, that at that time the Court would consider the following matters: 

    a)The future conduct of the part-heard proceedings;

    b)The outstanding interim application for delivery up of the children to the father; and

    c)Any subsequent application for costs or other trial directions.

11. The email also recorded the attempts made to call the mother on her mobile phone but without success.

12. Importantly, the Court determined that leave would be given to the mother to appear by telephone with the consequence that the court officer would call the mother’s telephone number as recorded.  There was no response to that email and I determined then that I would adjourn the proceedings until 2.15 pm to give the mother a further opportunity to be heard.  The arrangement was that I had determined I would hear at least the start of the father’s Application in a Case, that I would hear evidence from the father based upon a submission by counsel that there were matters in addition to the affidavit material that needed to be heard but that I would not conclude or determine the application until 10.00 am on 13 April 2021, for the express purpose of giving the mother an opportunity to be heard.

13. There was no initial response to the email.  The mother was advised at 1.05 pm of the adjourned hearing of the application to 2.15 pm.  Again, she was advised that a further attempt had been made to telephone her but without success and that leave was given for her to attend the hearing by telephone.

14. During the course of the father’s evidence, the Court received a further email from the mother at 3.19 pm forwarded to my associate and to the case coordinators which attached a medical report from the mother’s general practitioner, Dr C.  The content of the report is brief, but, for completeness, I consider it should be read onto the transcript:

    Dear Sir/Madam,

    Miss Bruckner.

    This is to confirm that I have reviewed the above named patient today.  She is most likely suffering from viral gastroenteritis.  She is unable to participate in court proceedings today or tomorrow due to this.[1] 

    [1] Exhibit “49”.

15. It is difficult to know whether the report was an afterthought of the mother and was, therefore a coincidence following the email communication forwarded to her or whether it was in reaction to the email communication.  It seems that it was the latter rather than the former.  

16. The question now is to determine what is to happen both with respect to the proceedings generally, that is, the part-heard substantive proceedings, the Application in a Case seeking the delivery up of the children and in default whether a recovery order issue. 

17. I return to the report before the Court.  The proceedings today were pursuant to an order made on 23 February 2021.  The purpose of the hearing today was well understood by each of the parties and, as discussed, was sought by the mother because she considered that the position that she had adopted at trial may well have changed as a result of events that have most recently occurred since judgment was reserved on 15 October 2020.

18. It is clear that each of the parties understood the import of the current proceedings.  I do not consider that either the father or, more importantly, the mother were under any misunderstanding as to what was or is to occur today and tomorrow.  These proceedings have been on foot now for a number of years and the mother has been a self-represented litigant.  It is fair to say that she conducted herself appropriately during the course of the substantive hearing and it is an important consideration that during the course of this long running litigation there have been occasions when accommodation has been made for proceedings to be adjourned because of health considerations of the mother.  The mother has well understood what is required if an application or if proceedings are to be adjourned, namely, that there should be an application or at the very least there should be some significant and real attempt made to satisfy the Court, the other party and the independent children’s lawyer that proceedings need to be adjourned because the mother is not able to participate.

19. Lest there be any misunderstanding, there is no circumstance where the Court would ignore a genuine complaint that a party is not able to properly participate because of ill health. 

20. It is understood that long running litigation causes frustration.  There is an emotional toll on all involved in respect of proceedings that are unresolved and, more importantly, the Court is acutely aware that litigation that does not conclude is only likely to be damaging to the children.  It is inconceivable that anybody could consider children benefit by unresolved litigation, particularly where it has consumed the majority of these children’s lives. 

21. There needs to be good and proper reason why proceedings listed as a primary hearing and with careful consideration to the parties’ availability and the ability for them to be represented should be adjourned. 

22. I do not consider the report from the mother’s general practitioner to be adequate in respect of those purposes.  The first report provides no history leading up to the review by the general practitioner of the mother.  Secondly, there is no basis to understand what it is about the mother’s current presentation that would prevent her from participating in Court proceedings either today or tomorrow.  It is now an accepted practice that proceedings can be dealt with remotely either by a remote hearing platform such as Microsoft Teams or Zoom or by telephone.  It seems to me that if a party is not able to physically attend Court there needs to be further explanation to satisfy the Court that they are not able to attend the proceedings in any form.  The report does not satisfy that consideration.  A further issue of relevance is that there is no prognosis.  Even were the Court to vacate the proceedings, the matter needs to be appropriately managed and that means that the Court should have confidence that if another date is set the parties will be available and able to attend.

23. It is not straightforward for proceedings to be adjourned to an early date.  Whilst I may be able to accommodate early dates and even be prepared to give this matter priority because it has a history to it, because it is part-heard and because I have a deep concern in respect of the children being involved in ongoing litigation, that does not mean that the parties are not inconvenienced by a different date and perhaps even more relevantly for those that wish to be represented, whether their counsel is able to accommodate. 

24. I do not yet know what I propose to do with the substantive hearing and the question for me then is what should be done with the Application in a Case.  I am not satisfied that the report provided by the mother is in a proper form or provides the assistance that the Court would need to understand whether in the proper administration of justice, the proceedings should be adjourned because of the purported ill health of the mother.  I acknowledge the report but I do not consider that it provides the complete answer that the mother may have hoped for. 

25. Accordingly, I propose to adjourn further consideration of the father’s Application in a Case and the mother’s response to tomorrow morning at 10.00 am.  That will give the mother a further opportunity to either put her house in order, in terms of a comprehensive report which provides assistance to the Court both in terms of the history leading up to the mother’s presentation today, better information in respect of how the purported viral gastroenteritis affects the mother’s ability to, at the very least, attend by telephone, or if for no other reason than to supplement and support what I assume to be her application for the proceedings to be adjourned. 

26. Counsel for the independent children’s lawyer has also suggested that the Court should make an order requiring the children to be brought to the Court and placed into child care whilst the application is heard and determined.  That was an application that I considered had merit but given I have now received something from the mother’s general practitioner, I consider that I should not make that order lest the mother’s circumstance be sufficient to justify her inability to physically attend the Court but not to attend the proceedings by remote hearing.  I decline to make the order as sought that the children be brought to court counselling.

27. In any event, the father’s application, if successful, means that the children come into his care and in respect of any non-compliance in relation to such an order for delivery up, then the Court can make orders that there be a recovery.  It would be regrettable if the matter proceeded in that way and it may well be that matters will change overnight. 

28. The Court we will make efforts to contact the mother again by email advising her that the proceedings are to continue tomorrow morning.

29. I make orders as appear at the commencement of these reasons.

I certify that the preceding twenty-eight (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 April 2021.

Associate: 

Date: 10 May 2021