Petteway and Simons

[2013] FamCA 325

FAMILY COURT OF AUSTRALIA

PETTEWAY & SIMONS [2013] FamCA 325

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the Father did not appear – Where the Father’s solicitors have been unable to contact the Father and are concerned he is suffering from a mental incapacity – Application for adjournment granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Petteway

RESPONDENT: Mr Simons

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: LEC 249 of 2011

DATE DELIVERED: 14 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Priestly

SOLICITOR FOR THE APPLICANT: Crane Paskins Law

COUNSEL FOR THE RESPONDENT: Ms Smith

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Lismore

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Ashcroft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Dooley Solicitors

Orders

Upon the undertaking of Hazel Manson, solicitor, to file and serve an affidavit on or before 4:00 pm 14 March 2013, or to cause the solicitor within the Legal Aid office (New South Wales) then having carriage of the matter on behalf of the Respondent Father to so do, deposing to:

(a)all steps taken by Legal Aid (NSW) to obtain instructions from the Father on and from today; and 

(b)all steps taken by Legal Aid (NSW) to establish the reasons for the Father’s non-attendance at the trial on 14 February 2013; and

(c)such reasons, as can be ascertained by the solicitor, for the Father’s non-attendance at trial on 14 March 2013.

IT IS ORDERED THAT

1. The Father file and serve upon the other parties an affidavit on or before 4:00pm 14 March 2013 explaining the reasons, if any, for his non-attendance at the trial on 14 February 2013.

2. Liberty be given to the Mother and the Independent Children’s Lawyer to apply on the giving of seven (7) days notice for the parenting orders application to be listed and heard on an undefended basis in the event that no satisfactory explanation is received for the Father’s non-attendance today.

3. The Applicant Mother’s mother, the maternal grandmother, be given leave to give evidence by telephone at the trial.

4. The Independent Children’s Lawyer have leave to inspect and copy, and all parties have leave to inspect only, subpoenas from:

   (a)       Dr R, the Father’s registered psychologist; and

   (b)       The Practice Manager, Town B Medical Centre.

5. Subject to any earlier listing as provided for in Order (2), the trial of this matter be adjourned to 7 and 8 May 2013 before the Honourable Justice Kent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Petteway & Simons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 249 of 2011

Ms Petteway

Applicant

And

Mr Simons

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This was to be the trial of parenting proceedings concerning M, born in July 2004, and V, born in July 2006 (“the children”).  The Mother, Ms Petteway, filed an Amended Initiating Application on 18 April 2012.  In short, the Mother proposes that parenting orders be made that would see her being able to return to her country of origin, Sweden, with the children, but with time being spent by the children with the Father, both in Sweden and in Australia thereafter. 

2. The parties separated as long ago as October 2007.  They had commenced living in a de facto relationship in or about February 1999.  There is a chequered history in terms of the chronology of events so far as the Father’s time and communication with the children is concerned. 

3. The trial of these proceedings was set down some considerable time ago, consistent with the usual trial processes employed, and directions were made for the purpose of the conduct of a trial.  There can be no question on the evidence before me that the Father was well aware that a trial was to be held, commencing today, on 14 February, of the Mother’s proposed parenting orders.

4. The Father is legally aided by the New South Wales Legal Aid office, and up until, it seems, 18 January 2013, was providing instructions in respect of the proceedings, including instructions to oppose the proposed relocation of the children to Sweden.  However, it seems that the last contact that Legal Aid NSW has had with the Father was 18 January 2013, when he was then apparently advised that Legal Aid funding was restricted to pursuing orders with respect to spending time, and as a consequence it seems, by reference to exhibit 1, the father left that appointment in a visibly distressed state. 

5. Despite concerted efforts by his solicitor since then to make contact with him; and to attempt to obtain instructions, the Father has not made contact with the solicitor nor sought to provide instructions, against the background that he was obviously aware of the approaching trial. 

6. The Father’s representatives appear today – that is, Ms Manson, his solicitor, and Ms Smith, his counsel – and applied for an adjournment of the trial on the basis that, given the Father’s unfortunate history – in particular, a psychotic episode that he suffered in or about March of last year – there is the prospect that his non-attendance today might be explained by a lack of capacity.  That is, that mental health issues are the reason for his non-attendance today.  Obviously, in circumstances that there has been no contact with the Father since 18 January 2013 by his solicitor, the possible explanation that his non-attendance is because of mental health issues is necessarily speculative.  It is put into question, indeed, by evidence from the Mother in her most recent affidavit, concerning the Father’s contact recently with the children, and in particular statements he has made which may be more suggestive of the Father deciding in the end not to oppose the Mother’s present proceedings rather than his non-attendance being due to the reason speculated upon by his solicitor and counsel.

7. In the result, the urgency so far as the Mother is concerned is that the school year in Sweden commences in August, and she is keen, if her proposal is acceded to by orders of the court, to have the children ensconced in Sweden and to arrange her own and their living arrangements well in advance of August, to facilitate their schooling thereafter in Sweden.  Obviously enough, there is necessarily a balance between the potential for the Father’s non-attendance being explicable and the Mother’s needs and desires.  But overriding both, of course, are the best interests of the children the subject of these proceedings.

8. Both the Mother and the Independent Children's Lawyer representing the interests of the children opposed the matter being adjourned, essentially on the basis that the matter has a long history, and there is ample evidence of, historically, the Father displaying what is said to be a lack of commitment to regular time with the children, against a background that he has moved from place to place, and state to state.  In the end, it seems to me that the best interests of the children dictate that the parenting orders the court ultimately makes must be informed if possible by knowledge of the Father’s position, if it be his position, that he is currently suffering mental health issues, at least in part because the Mother seeks the court to make orders concerning his time and communication with the children. 

9. The emphasis in these circumstances needs to be placed upon the principle that parties have the right to have an opportunity to be heard before orders can be made.  In the normal course, if a party in the position of the Father did not adequately explain their non-attendance, the proceedings ought be able to proceed on an undefended basis, both in the interests of the Mother in this case, but also more importantly in the interests of the children.  I record that, unless the Father adequately explains – or it is explained on his behalf – his non-attendance for the purpose of the trial today, that the court is satisfied he has had ample opportunity to be heard, so that henceforth, if he now seeks to be heard hereafter, that opportunity has expired by reason of his non-attendance for the trial today.  Neither the Mother and her legal representatives, nor, most fundamentally, the children and the Independent Children's Lawyer should be put to the difficulties created if it be the case that the Father has simply chosen to stay away for this trial, but changes his mind to do something different later. 

10. On that basis, I propose, upon undertakings that will be formulated with respect to the Father’s solicitor as to the filing and service of an affidavit on or before 14 March and similar steps, to make Orders that would enable the parties to seek to have the matter listed for hearing and determination on an undefended basis as soon as it is learned that the Father’s non-attendance today is for no good reason, in the sense of by reason of some mental incapacity or lack of legal capacity to attend and instruct his lawyers or other legitimate reason. Otherwise, the orders will reflect that the trial will be adjourned to 7 and 8 May 2013.  That is, if it is established that the Father lacks capacity by 7 May 2013, there should be sufficient time for a litigation case guardian to be appointed for him to conduct the proceedings on his behalf, if that be needed.

11. I also propose to Order that the Father himself file and serve an affidavit by 14 March 2013 explaining the reasons for his non-attendance.  Obviously, in the event that he is a person under a disability, he will not be able to comply with that Order, but that will be addressed hopefully by other material and evidence that is forthcoming by 14 March 2013, given the proposed affidavit by his lawyer.  I will also Order that the parties have liberty to apply on seven days notice, with respect to the urgent listing of the matter if it is to be heard and determined on an undefended basis, in the circumstances described.  I will further Order that the Mother’s mother – that is, the maternal grandmother – be excused from any further attendance, so far as physical attendance is concerned, and that she be permitted to give any evidence required by electronic means, given that she was available for this trial to attend in person.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 February 2013.

Associate:   

Date:  14 February 2013