Merta & Anworth
[2023] FedCFamC1F 300
•18 April 2023
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Merta & Anworth[2023] FedCFamC1F 300
File number(s): BRC 7548 of 2020 Judgment of: HOGAN J Date of judgment: 18 April 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the Respondent seeks an adjournment of the trial on the first morning of trial – Where the Applicant opposes the adjournment – Where the application is refused. Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 13 Date of hearing: 18 April 2023 Place: Brisbane Counsel for the Applicant: Mr Casey Solicitor for the Applicant: Jurgensen Horne Lawyers Counsel for the Respondent: Ms Chekirova Solicitor for the Respondent: Cornerstone Law Offices Counsel for the Independent Children's Lawyer: Mr Baston Solicitor for the Independent Children's Lawyer: Rhonda Sheehy And Associates ORDERS
BRC 7548 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MERTA
Applicant
AND: MR ANWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
18 APRIL 2023
THE COURT ORDERS THAT:
1.The hearing of this matter is adjourned to 9.00 am, Wednesday, 19 April 2023.
2.The Respondent father attend either the City C Registry of the Federal Circuit and Family Court of Australia (Division 1) or the City B Registry of the Federal Circuit and Family Court of Australia (Division 1) by no later than 8.45 am on Wednesday, 19 April 2023.
3.All parties must attend the hearing in person.
IT IS DIRECTED THAT
4.The legal representatives for the Respondent father forward a copy of this Order to the father by email.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merta & Anworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
I am not persuaded to adjourn the hearing completely this morning.
In arriving at that decision, I take into account the following.
The matter was listed for final hearing by order made by a Judicial Registrar on 16 September 2022, at which time an order was also made to require all parties to attend the hearing in person – so, in that sense then, there has been very significant time between the listing for final hearing of the matter and it commencing this morning at 10.15 am.
There have also been a number of other appearances prior to today, albeit that, because parties are legally represented, the attendance of each of the parents was not required.
I think there could be no doubt that the father has had ample opportunity to make appropriate arrangements to ensure that he is present in Brisbane so that the trial can proceed today.
I take into account the submissions made by Mr Casey on behalf of the mother in relation to the duration of the trial, noting that it is agreed that final orders should be made for the children to live with the mother and that it is agreed that a final order should be made, according to the mother, sole parental responsibility for the major long-term issues relating to each of the children. So those matters are not a matter of contest.
In one sense, the only matter of significant contest as between the parents and the Independent Children’s Lawyer is whether an order should be made for the children to spend any time and have any communication with their father. The evidence establishes that they have not had any time or any communication with him since about, I think, 2020. My appreciation of the father’s case includes that his position, as outlined in the documents filed on his behalf by his solicitor, is that I should be persuaded that it is in the children’s best interests to have the opportunity to have a meaningful relationship with him; and that, to facilitate that, I should be persuaded to make orders, as I anticipate it, on an interim basis to provide for, in essence, a reintroduction of the children to the father via supervised time; and then to have this matter back before me, presumably with the benefit of observations arising from supervision, to determine whether their best interests would be met by moving to make orders for unsupervised time in whatever terms might then be sought. So the issue, in one sense, is a narrow one.
However, the right of children to have the opportunity to have a meaningful relationship with both of their parents is, of course, a significant issue. It is one of the objects of the Act and one of the objects of Part VII. Given that importance, and even noting the persuasive submissions made on behalf of the mother by Mr Casey and the very appropriate submissions made on behalf of the Independent Children’s Lawyer by Mr Baston, I am not prepared, at this stage, simply to make an order adjourning the proceedings. Similarly, I am not prepared this morning to make an order that I should proceed to determine this matter, in essence, on an undefended basis.
I think there is much in the submission that, given that there are two Registries of the court in D Region (namely, a Registry in City C and a Registry in City B) I should, at this stage, in essence, stand the matter over to enable the father to take appropriate steps to present himself to either of those Registries so that the trial can proceed.
Given the issue that I am required to determine (namely, whether the children’s best interests require an order giving them an opportunity to spend time with the father or not), I think it is highly likely that, with focus, any cross-examination directed to evidence relevant to that issue could be attended to within a day. I am prepared to start early tomorrow; I am prepared to manage the court hours – for example, by sitting a short lunch hour and sitting later tomorrow afternoon – to ensure that the matter can proceed to hearing.
In the event that the father does not make himself available at the Registry (either City C or City B) so as to facilitate his cross-examination, then, of course, it is open for Counsel for the mother and the Independent Children’s Lawyer to renew their application that I proceed to determine this matter, in essence, on the papers (as I anticipate) and to make final orders tomorrow afternoon.
Whilst others may disagree, it seems to me that the existence of the Registries in D Region (in City C and City B) and the ability, if the father presents himself to either of those, of the court to facilitate his attendance via video link is a significant factor – and one that I think I should take up so as to ensure that, when this matter is finalised by the making of final orders, there could be no suggestion that I have failed to accord the father procedural fairness.
For those short reasons then, I do not intend to adjourn the matter.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 21 April 2023
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