Ness & Firmin
[2023] FedCFamC2F 504
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ness & Firmin [2023] FedCFamC2F 504
File number(s): AYC 144 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 March 2023 Catchwords: FAMILY LAW – part-heard final hearing – where mother’s attendance at final hearing sporadic – where mother refused to attend Melbourne registry for final hearing – where mother appeared via videolink – orders requiring mother to file medical evidence of absence from final hearing – order permitting the mother to obtain legal advice from her legal representatives whilst under cross-examination – final hearing adjourned part-heard. Legislation: Family Law Act 1975 (Cth), ss 69ZN, 102NA. Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 17 March 2023 Place: Melbourne Counsel for the Applicant: Mr J. Gates Solicitor for the Applicant: Myers Family Lawyers Counsel for the Respondent: Mr S. Howe Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Ms S. Taylor Solicitor for the Independent Children's Lawyer: Joliman Lawyers ORDERS
AYC 144 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NESS
Applicant
AND: MS FIRMIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 MARCH 2023
THE COURT ORDERS THAT:
1.The matter be adjourned part-heard for Final Hearing in the Federal Circuit and Family Court of Australia Melbourne Registry on 5 & 8 May 2023 at 10am.
2.The Mother, Ms Firmin, and the Father, Mr Ness, are directed to attend the Melbourne Registry of this Court for the further hearing of the matter pursuant to Order 1 herein.
3.In the event the Mother fails to appear on the adjourned date, the Father and Independent Children’s Lawyer have liberty to apply to proceed on an undefended basis.
4.By 4pm on 14 April 2023 the Mother file and serve an Affidavit including medical evidence explaining her absence from the Court on 14 March 2023 and 17 March 2023.
5.Notwithstanding that the cross-examination of the Mother has not concluded, the Mother be and is permitted to obtain legal advice in relation to any aspect of her case or the conduct of it.
6.The subpoenaed material be released to all parties until 29 days after the conclusion to the last day of the Final Hearing.
7.The costs of the Father and Independent Children’s Lawyer be fixed and reserved.
AND THE COURT NOTES THAT:
A.The Father’s fixed costs are $6,200 for this day.
B.The Father opposes Order 5 herein.
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 a pseudonym Ness & Firmin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
The question I must decide in this matter on the fourth day of a listed four-day hearing is whether the absent party's request for an adjournment of the proceedings – that is, to adjourn part heard – should be granted.
The circumstances of the parties' relationship is set out in the first judgment in this matter, delivered 2 July 2021. The proceedings come before me when the competing applications as of this point in time are as follows:
·The Applicant, Mr Ness (‘the Father’)'s application for orders that the three children, aged 12, 10 and eight, live with him and not spend any time, including telephone time, with the Respondent, Ms Firmin (‘the Mother’).
·The Independent Children's Lawyer (‘ICL’)’s application is for orders that the children should live with the Father, over the next 12 months the Mother provide multiple hair follicle tests and undertake therapy for herself, and on the proviso this is complied with, that thereafter the children should spent supervised time at a formal supervision service four times per year.
·The Mother's application that there be interim orders made for her to have alternate weekend time, for the children to undertake family therapy with both parents, at the Father’s expense, and the children to engage with a psychologist “to deal with their exposure to family violence as advised by H Family Services.”
HISTORY OF PROCEEDINGS
The unusual and troubling procedural history is more or less as follows. The matter was set down for Final Hearing on 7 July 2021 when it was listed for 15 August 2022. That date was administratively changed to 22 August 2022. Shortly prior to that listing, by the joint request of all of the parties, on 18 August 2022 the hearing fixed for 22 to 25 August 2022 was vacated. The proceedings were adjourned to 14 March 2023 at 10 am, with an estimated hearing time of four days. The orders of 18 August 2022, made in chambers at the request of the parties, included the notation as follows:
A.An adjournment is sought on the basis that none of the parties have complied with the trial directions for the filing of trial material, and that the mother has also had a recent hospital admission and is not in a position to file her trial material before 22 August 2022.
The orders of 18 August 2022 also provided for the Father to file trial material 56 days before the first day of the hearing, for the Mother to file 42 days beforehand, and the ICL to file any affidavits 28 days beforehand. The addendum family report had been undertaken prior to the first trial listing of the matter discussed above and was available to the parties, having been undertaken and released in June of 2022.
On 30 January 2023, the matter came on for Mention as a consequence of the Mother becoming unrepresented. On 30 January 2023, an order prohibiting her from cross-examination was made pursuant to section 102NA(1)(a), (b) and (c)(ii) of the Family Law Act 1975 (Cth) (‘the Act’), on the basis of a final intervention order between the parties. I made an order that the Mother was permitted to rely upon affidavits filed in interim proceedings on 21 May 2022 and 27 May 2022, and be permitted to file and rely upon a further affidavit of evidence to be filed and served by 27 February 2023.
THE FINAL HEARING
At that Mention hearing, which was by video link on 30 January 2023, it was plain and clear to the parties that the hearing was proceeding in person in Melbourne. There was no application by the Mother for any other hearing than an in-person hearing within a courtroom on that day. The Mother did not file any further affidavit on or before 27 February 2023. On the first day of the final hearing on 14 March 2023, the Mother did not attend or appear. Pursuant to the section 102NA family violence cross-examination scheme, the Mother had applied for and obtained a grant of aid and had retained solicitors pursuant to that grant. Counsel was briefed and counsel appeared on 14 March 2023. The Mother did not. Initially, there was no explanation for her lack of attendance.
Application was made by counsel for the Father, supported by counsel for the ICL, that the matter proceed undefended. I did not permit the matter to proceed undefended immediately but stood the matter down until 11.30am to enable inquiries to be made by the Mother's counsel as to where she was. I was concerned that she might have missed the train or had a car breakdown driving from the regional city where it was thought that she lived. At 11.30am the matter was stood down till 2.15pm, and by 2.15pm, or at least some stage in the afternoon, the Mother's counsel had been able to make contact with her and the explanation given on instructions by her counsel was that she was too ill to appear that day, and that she was ill with anxiety and stress. I stood the matter over to the following day.
The following day at 10am, the Mother appeared by video link and appeared prepared for a hearing. The Mother filed or tendered a minute of different orders sought, which sought interim orders rather than her previous application, being for final orders that the children live with her. The hearing then proceeded over the day of Wednesday, 15 March 2023 and into Thursday, 16 March 2023. By Thursday, 16 March 2023, the Mother was being cross-examined. During the afternoon of her cross-examination, the Mother appearing via video link, the screen went blank.
There had not been any application or permission sought to appear by video link, but the parties and the Court acquiesced in that fait accompli undertaken by the Mother. It transpired, according to the Mother, she had been in Region J New South Wales for some two weeks prior to that day. There were various explanations given via counsel for the difficulty of her continuing to appear. I add that the Mother's evidence was that she was appearing from a public library facility in Region J New South Wales, and it became evident from the background when observers were able to observe library users looking at stacks of books that in fact the Mother was attending from a library facility. Late on the afternoon of the Thursday, the Mother simply disappeared from the screen. The explanations via her counsel were given as her computer needed a software update, and also there was a poor internet connection, and also that her phone was not working properly.
This morning, being Friday, 17 March 2023, the Mother did not attend at all. Her counsel advised that his instructions were that the Mother was unable to attend, as it transpired that she was pregnant and too unwell to appear at all this day. There were indications from her counsel, by instructions, that her pregnancy was not progressing as it should be, and that the Mother was urgently seeking medical advice and a medical appointment. The Mother’s pregnancy being information not previously provided by the Mother to the Court or to the Father.
The Mother's counsel sought an adjournment. The adjournment was opposed and counsel for the Father addressed me, and the central theme of the address was that the Mother's conduct of the proceeding had been so appalling and she had so frequently not complied with Court orders that the latitude of this further adjournment should not be granted. It was also put that this was not a proper adjournment as there was no basis in evidence for it, merely statements from the bar table. The Father's position of insisting that the hearing proceed, which would effectively mean undefended from that point, was supported by counsel for the ICL, and counsel for the ICL adopted and supported the reasons pressed by the Father's counsel.
I have considered this matter and I take into account section 69ZN of the Act which is as follows:
69ZN Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The Mother has also given evidence that the reason she was attending by video link from Region J New South Wales was because police had advised her that she should not attend the State of Victoria because of the allegations of family violence and stalking made against her by the Father. A central theme of the Mother's case is that she has been the victim of serious family violence and has been traumatised by that violence and has been suffering that effect for some time.
The fifth principle of proceedings being conducted without undue delay, and with as little formality and legal technicality in form as possible, has been difficult to apply in this case. The Father presses that I should have great circumspection about the Mother's claims for ill health. He points to the tendered document on the adjournment application (Exhibit F6) being certain pages from the K Hospital New South Wales record, which is said to give rise to a powerful inference that the hospital attendance was part of a strategy in circumstances where the Mother at that time believed she did not have evidence to proceed for the then pending final hearing in the immediate future.
At this point, I am unable to make findings as to the genuineness of the Mother's assertion. That means that I cannot find that it is merely strategic, exaggerated or untrue. At this point, the Mother's cross-examination, I am told, is about half to two-thirds concluded, and it is a matter where there may well be some re-examination, and further, I may have some questions for the Mother myself, were she to attend. Balancing the seriousness for the children involved of the competing allegations, and I take the best interests of the children as being one of the matters to take into account, but this being a procedural hearing, I do not take that as the paramount or overriding consideration. Nonetheless it is a significant one, but these are serious applications with long-term consequences for three children, aged 12, 10 and eight.
Taking into account all of the principles of conducting child-related proceedings, and also taking into account that, if correct, it is not practical for the Mother to put medical evidence before the Court this morning of the predicament that she says she is in, I will adjourn the matter. I propose to fix and reserve the costs of this day of the ICL and the Father. On one view, the Mother has no capacity to pay a costs order, but impecuniosity is not an indemnity against costs orders. There may or may not be in the future a property application arising from the Father's ownership of property and a long relationship.
I also propose ordering that the Mother obtain and provide to the other parties and the Court medical evidence relating to her circumstances this day. I am told that the Mother has a 5pm appointment this day, unless an earlier appointment becomes available on the cancellation list, with a general practitioner nearby to where she was giving evidence from a Dr L of the M Medical Centre, Town N. The Mother makes the connection that her health circumstance directly relates or may directly relate to the pregnancy and the progression of it.
I adjourn the matter part-heard for a further two days to 5 and 8 May 2023. I make further orders for a requirement that both the Mother and Father appear in person on the adjourned hearing dates, and if the Mother fails to appear, the Father and ICL be granted liberty to apply to the Court to proceed on an undefended basis. I order that by 4pm on 14 April 2023 the Mother file and serve an Affidavit including medical evidence explaining her absence from the Court on 14 and 17 March 2023. Although opposed by the Father, I permit the Mother to be able to obtain legal advice in relation to her case whilst she remains under cross-examination. I otherwise fix and reserve the Father and ICL’s costs of this day, and grant the parties permission to view the subpoena material until 29 days after the conclusion of the last day of the final hearing.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 3 May 2023
2
0
0