Packer and Fulton

[2017] FamCA 699

FAMILY COURT OF AUSTRALIA

PACKER & FULTON [2017] FamCA 699

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Respondent made an oral application for a further short adjournment of the part heard hearing of a Contravention Application – Application granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Packer

RESPONDENT: Mr Fulton

FILE NUMBER: LEC 575 of 2007

DATE DELIVERED: 7 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 7 September 2017

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Mr FF is granted permission to act as the McKenzie Friend for the Applicant in the hearing today and is permitted to sit beside him at the bar table to take notes and assist with document management but not for the purpose of addressing the Court on his behalf.

AND IT IS FURTHER ORDERED UPON THE RESPONDENT’S ORAL APPLICATION FOR AN ADJOURNMENT THAT

1. The remaining Counts 1, 2 and 3 of the Application – Contravention filed 17 July 2017 are adjourned part heard to 10.00 am on Thursday, 28 September 2017.

2. All parties attend the part heard hearing on 28 September 2017 in person.

AND IT IS FURTHER ORDERED THAT

1. By no later than 4.00 pm on Friday, 15 September 2017:  the Respondent file and serve, by email transmission, any affidavit material she intends to rely upon at the part heard hearing on 28 September 2017.

2. The Applicant is at liberty to file and serve any affidavit, strictly in reply to any affidavit/s relied upon by the Respondent, which have been filed and served in compliance with Clause 4 of this Order.

3. Each party will be deemed to have effected service by providing their material to the other at the email address provided to the Court and the Rules which otherwise relate to the manner by which service is to be effected are otherwise dispensed with.

AND IT IS FURTHER ORDERED THAT

1. In the event that the Respondent fails to comply with Clause 4 of this Order for the filing of material, then the part heard hearing on 28 September 2017 will continue to be heard and determined on the basis that the Respondent is not permitted to rely upon any further evidence not filed in compliance with this Order without leave of the Court.

AND IT IS FURTHER ORDERED THAT

1. In the event that the Applicant seeks to appear at the adjourned hearing on 28 September 2017 via video link from the Lismore Registry of this Court, the Applicant shall notify the Case Co-Ordinator, in writing, of that election by no later than 4.00 pm on 22 September 2017.

NOTATION:

(A)The Court notes that, if the Respondent fails to take up the further opportunity afforded to her, after her request for an adjournment for that purpose, to file affidavit material to respond to the charges of contravention (the substance of which were first raised by the Applicant in the Application – Contravention filed 23 November 2016), the Application – Contravention filed 17 July 2017 will be determined on the basis of the evidence filed to date. 

(B)The Court notes that the parties have today been informed that the process for cross-examination of the Respondent by the Applicant by way of video link will be facilitated at the adjourned hearing on 28 September 2017 in the same manner as the cross-examination of the Applicant by the Respondent via video link has previously been facilitated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Packer & Fulton 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: LEC 575 of 2007

Ms Packer

Applicant

And

Mr Fulton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have before me an application by Ms Packer, the Respondent to an Application for Contravention, for a further adjournment of the hearing.  The matter was last before me on 31 August, at which time the stage of the proceedings reached was that Ms Packer had undertaken her cross-examination of Mr Fulton.  As reference to the transcript will reveal, toward the end of the hearing on 31 August 2017, there was discourse in relation to the desirability, in terms of efficiency and in terms of affording to Mr Fulton appropriate knowledge of evidence to be relied upon by Ms Packer, of Ms Packer filing and serving an affidavit.

2. As a consequence of Ms Packer’s assurance, on that occasion, that she was engaged in the preparation of an affidavit but had encountered some difficulties with it, I determined the appropriate course was to make orders permitting her to file an affidavit and serve the same by a specified time and to adjourn the hearing of the matter to today.

3. It appears that Ms Packer has complied, in one sense, with the obligation to file a Notice of Address for Service, in which she has provided an email address, although I note that compliance did not occur within the timeframe provided in the order. 

4. Ms Packer has not filed or served an affidavit of her evidence in this matter in compliance with the orders I made on 31 August 2017.  She applies today for a further adjournment of the hearing and assures me, in response to a direct question asked of her, that, if an adjournment of the hearing is granted to her, she will file and serve an affidavit of her evidence within a week and be in a position to do that.

5. I have already expressed my thoughts in relation to the timeframe over which this matter – namely, the Application for Contravention – has been on foot.  So that those comments can clearly be understood (and the context in which they are made) it is, I think, appropriate that I record that the Application for Contravention that is currently before me – whilst filed on 17 July 2017 – replicates an earlier Application for Contravention filed by Mr Fulton on 23 November 2016.  This was dismissed by consent when the matter was first before me because the latter Application for Contravention, in essence, replicated it and certainly covered those counts which remain.

6. It is in that context, then, and by reference to that, then, that I have remarked on a number of occasions to Ms Packer that she has had no less than about nine months within which to prepare whatever affidavit material she intends to rely upon. 

7. Ms Packer’s submissions in support of the application for adjournment may be summarised, I think, to be, in essence, that the impact upon her of learning, on 31 August, that Mr Fulton was intending to seek, at the conclusion of the Contravention Application hearing, that I impose a sentence of imprisonment and that I make orders varying the existing parenting orders, has caused her great distress and impaired her ability to finalise the preparation of her affidavit. 

8. She has raised a number of other matters that, in her submission, have impaired, and impacted negatively upon, her capacity to finalise her preparations.

9. I note, however, that despite those issues having been raised by her, Ms Packer remains confident – to the point of providing a positive assurance – that, if granted a short adjournment, she will be in a position to finalise her affidavit and file and serve the same, so that I can bring to a conclusion to the hearing and determination of this Application for Contravention.

10. As I have remarked during the course of discourse with Ms Packer, it is obvious that one of my obligations is to do exactly that.  It is also, I think, obvious that the only way in which an Application filed in the Court can come to finalisation is either by consent or by judicial determination.  In this case, it is obviously only the latter that is applicable.

11. Whilst others may disagree with the decision I have reached, I have been persuaded that it is appropriate to afford Ms Packer a short adjournment in order to finalise her preparations. 

12. I am cognisant of the impact upon Mr Fulton in terms of travelling from his residence to Brisbane.  It is for that reason that I had raised with him the prospect, if he sought to avail himself of it, of appearing at the adjourned hearing in this matter by video link from the Lismore Registry, which would have the effect of ameliorating, to some extent, at least, the imposition of travel.  If Mr Fulton chose to do that, he would appear, as I say, by video link.  He is currently joining us from another courtroom in this building.

13. I intend to make orders that adjourn the matter for further hearing before me to 28 September 2017 at 10.00 am.  Ms Packer will file and serve any affidavit material she intends to rely upon at the adjourned hearing by 4.00 pm on 15 September 2017. 

14. A further order will be that if the Respondent fails to comply with the order for the filing of material, then this proceeding will continue to be finalised and heard on the basis that she is not permitted to rely upon any further evidence not filed in compliance with this order without leave of the Court.  So that it is abundantly clear, Ms Packer should not leave this building with any thought other than that any attempt to obtain leave is likely to be something that is a difficult task, given the comments I have made about the no less than nine months she has had available to her to prepare to answer the Application for Contravention.

15. The order made will also contain a notation to this effect:  the Court notes that, if the Respondent fails to take up the further opportunity afforded to her after her request for an adjournment for that purpose, to file affidavit material to respond to the charges of contravention (the substance of which were first raised by the Applicant in the Application – Contravention filed 23 November 2016), the Application for Contravention before the Court will be determined on the basis of the evidence filed to date.  I will include that notation so that Ms Packer is left in no doubt as to the consequences for her case of a failure to comply with the order affording to her the opportunity to file affidavit material.

16. I will also make an order that, in the event that Mr Fulton seeks to appear at the adjourned hearing on 28 September 2017 by video link, he notify the Case Coordinator of that election by no later than 4.00 pm on 22 September 2017 and notify in writing of that election.

17. In arriving at the decision to afford to Ms Packer a further opportunity to provide affidavit material, I have placed particular weight upon the fact of the consequences for her that Mr Fulton seeks at the conclusion of the hearing of the Application for Contravention, if successful in his prosecution of the same.  Absent that, it is highly unlikely that I would have been persuaded to afford to Ms Packer what I consider to be a further indulgence, particularly given the length of time within which this matter has been on foot and the participation of each of the parties to it in previous interlocutory applications associated with it.  For example, there has been determination by Senior Registrar Spink of Mr Fulton’s Application for subpoena and Ms Packer’s objection to subpoena filed in response to that.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 September 2017.

Associate: 

Date:    7 September 2017