Ryland & Gunson
[2022] FedCFamC2F 948
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ryland & Gunson [2022] FedCFamC2F 948
File number(s): NCC 2212 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 16 June 2022 Catchwords: FAMILY LAW – contempt – warrant of arrest to issue – repeated default of orders for parentage testing – failure to appear before the Court – flagrant disregard of Court orders – overarching purpose Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.79
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Division: Division 2 Family Law Number of paragraphs: 47 Date of hearing: 16 June 2022 Place: Newcastle Solicitor for the Applicant: Self-represented Litigant Solicitor for the Respondent: No appearance ORDERS
NCC 2212 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RYLAND
Applicant
AND: MS GUNSON
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
16 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to Rule 11.79(1)(a)(iv) a warrant is to issue authorising the Marshal and officers of the Australian Federal Police and any State or Territory Police Force to arrest MS GUNSON born in 1988 and bring her before the Court.
2.Liberty is granted to the Mother to contact the chambers of Judge Kearney by email on: [email protected] in the event that she requires assistance to arrange a secure room in the Newcastle Registry of the Federal Circuit and Family Court of Australia to assist her in completing he obligations to attend Court in these proceedings.
3.All outstanding applications are adjourned in chambers for consideration at 9.00am on Monday 20 June 2022 noting that the hearing of today’s Contempt Application could not proceed and in those circumstances there was no consideration of the Initiating Application filed by the Father on 2 July 2021.
4.Reasons given this day be transcribed, revised and placed on the Court file.
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 Ryland & Gunson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE KEARNEY
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the reasons delivered orally amenable to being read.
INTRODUCTION
The proceedings come before this Court as a consequence of an unusual set of circumstances. The applicant, Mr Ryland (‘the father’), does not know if he is the biological father of X (‘X), and the respondent, Ms Gunson (‘the mother’), appears determined not to permit the father to find out the answer to that conundrum.
The proceedings initially commenced under Part VII of the Family Law Act 1975 (Cth) (‘the Act’), but in addition to the parenting proceedings, I now have before me an application entertaining section 112AP of the Act, which relates to contempt.
Today, the father made an oral application for the arrest of the mother so that she can be brought before this Court to answer his application for contempt. For the reasons that follow, I intend to grant his application.
The father read or relied upon the following documents in terms of his evidence:
(a)Application Contempt filed 31 March 2022;
(b)Affidavit of Mr Ryland filed 31 March 2022;
(c)Affidavit of service of Mr B filed 12 April 2022; and
(d)Affidavit of service of Ms C filed 16 May 2022.
Statement of facts set out below shall constitute findings of fact, unless otherwise expressed, and this is because I don’t have any material from the mother in response, so I’m only left with the father’s uncontested evidence.
In order to consider the applications, it’s necessary for me to set out a chronology of the parties’ circumstances, as relevant to the contempt application in particular, but more so the oral application for the issuing of a warrant of arrest.
CHRONOLOGY
In 1988, the mother was born, and she is now aged 33 years of age.
In 1996, the father was born, and he is now aged 26 years of age.
The mother gave birth to a child, D, who the father estimates to be now aged 11 years.
In 2020, the father says the parties commenced their relationship and began living together in 2020. During the pregnancy, the father says that the parties celebrated the pregnancy with family and friends.
In October 2020, the father says the relationship ended, and the father says his attempts to remain in communication with the mother went unanswered, and were ultimately unsuccessful.
In 2020, X was born, with the father finding out about it when hospital staff called to congratulate him. The father says that during the five days that the mother and X were in hospital, he visited every day. He says that the last time he saw X was on the morning of the fifth day, which means that he has not seen X for about 19 months.
In the vacuum that has followed since that time, the father has not been able to engage with the mother, and on 26 March 2021, the father caused his solicitors to ask the mother to permit X to be the subject of a parentage test, without a response.
On 2 July 2021, parenting proceedings were commenced, with the father saying that if he was the father, he wanted to play an active role in his son’s life, but if he wasn’t X’s father, he would discontinue the proceedings. As part of that process, the Court granted him an exemption from participation in family dispute resolution, pursuant to s 60I of the Act.
On 25 October 2021 (‘the October 2021 orders’), the parties appeared before the Court. Orders were made pursuant to section 69W of the Act for parentage testing, to determine if the father was X’s father. In addition to other ancillary orders, the mother was ordered to file and serve a notice of address for service and her responding material.
The father says that he complied with the October 2021 orders, and the mother did not.
On the face of the October 2021 orders, the mother’s address for service was specified as E Street, Suburb F.
On 7 February 2022, the parties again appeared before the Court, and by consent, further parentage testing orders were made (‘the February 2022 orders’), which included X being handed over to the father for a period of no more than two hours on 22 February 2022, so that the father could take X to a parentage testing facility at Suburb G. In addition, and without the apparent consent of the mother, she was again ordered to file and serve a notice of address for service.
The Court records indicate the mother has never filed a notice of address for service, nor any responding documents.
Arising from an application in a proceeding filed by the father, on 21 February 2022 the father appeared before the Court, but the mother did not. The Court made orders pursuant to section 106A of the Act to facilitate the father executing the relevant documents to facilitate parentage testing. Amongst other orders, costs were ordered to be paid by the mother to the father.
On 22 February 2022, the mother failed to deliver X to the father, meaning that the parentage testing could not occur.
On 9 March 2022, the father appeared before the Court, but the mother did not; with the matter adjourned to 20 June 2022, following advice from the father that he intended to prosecute a contempt application. I pause to note that the mother’s address is recorded on the face of the orders was E Street, Suburb F.
On 31 March 2022, the father commenced contempt proceedings against the mother, alleging three charges related to the October 2021 orders and the February 2022 orders.
On 4 April 2022, the mother was personally served with those contempt documents at E(2) Street, Suburb F. The father tells the Court today that he understands that that address is the correct address and not E Street, Suburb F. The return date for the contempt application (which was personally served) was 4 May 2022 at 10:00 am.
On 4 May 2022, the father appeared in Court, and the mother did not. Relevant to my consideration today, those orders (‘the May 2022 orders’) were:
1.The Application – Contempt filed by the Applicant on 31 March 2022 is listed for Hearing before Her Honour Judge Kearney at 10.00am on 16 June 2022.
2.The hearing will be conducted face-to-face and the parties and any legal representatives on the record are to attend in person in accordance with the FCFCOA COVID-19 Hearing Protocol.
3.The Respondent is directed to attend in person at the Newcastle registry of the Federal Circuit and Family Court of Australia at 61 Bolton Street, Newcastle for the hearing of the Application – Contempt unless she is excused from attending in person by the presiding Judicial Officer and subject to the provisions of the FCFCOA COVID-19 Hearing Protocol.
4.In the event that the Respondent fails to attend in person a warrant may issue for her arrest and it is the intention of the Applicant to make such application.
5.The Initiating Application filed 2 July 2021 is also listed before Her Honour Judge Kearney at 10.00am on 16 June 2022.
There were also a series of ancillary orders which don’t cause me any concern for today’s purposes.
Then there were some notations made:
A.There was no appearance by or on behalf of the Respondent when the matter was called at 11.05am.
B.At the presiding Judicial Officer’s discretion, the substantive application may proceed on an interim or undefended basis on the next Court date and the parties are to ensure they are in a position to proceed with the substantive application should the Court indicate its intention to progress the matter in this way.
C.If the substantive application is not reached, it is likely the matter will be referred back to the Docket Registrar for further case management and possible Undefended Hearing.
These are the only notations that are relevant from my perspective.
On 10 May 2022, and in accordance with order 10 of the May 2022 orders, the mother was served electronically with a copy of the May 2022 orders by email, as well as the sending of a hard copy of the same orders by prepaid post.
Today, when the matter was initially called on at 10:00 am, the mother failed to appear, noting that at the time, her name was called out in the immediately adjacent foyer to the Court room. The matter was stood in the list until about 11:30 am as I had a part-heard trial to contend with in the meantime.
When the matter resumed at 11.30am, the mother’s name was again called out, with no response. The father pressed an oral application for a warrant of arrest to issue, and having heard the application, I reserved my decision until a hearing at 11:00 tomorrow. Upon reflection, and noting the precious resources of this Court, and the court’s obligation to promote the overarching purpose, I made the procedural decision to determine the father’s oral application this afternoon.
In doing so I had regard to s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) requires that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible. And so the Court is bound to follow those – to follow that overarching purpose in the exercise of its practice and procedure.
So as a result of that reflection, I decided to bring forward that court event to 4:00 pm today. At that time, I was informed that both parties had been called to advise of the revised time, and had also been sent an email with the link to today’s 4:00 pm hearing.
During the process of making a call to each of the parties, I was informed that the mother had been called, and during the course of identifying themselves as a staff member of the Court, the mother hung up the telephone.
When the matter was brought back on this afternoon, I reopened submissions and accepted further evidence of service filed by the father insofar as it related to the May 2022 orders having been served upon the mother.
THE LAW AND ANALYSIS - WARRANT FOR ARREST
As it currently stands, the parentage test has never taken place, notwithstanding the mother’s appearance on two occasions before the Court, when either an order was made –
·after a defended hearing (the October 2021 orders), and/or
·by consent, (the February 2022 orders).
Now is not the time to make findings about why the parentage test has not occurred, but in order to get to the bottom of this failure, the Court needs to make further inquiries, and this requires the mother’s appearance before the Court, to answer the father’s contempt application.
Rule 11.79 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) enables the Court to exercise its discretion to issue a warrant for the arrest of a person who fails to appear. The Court is able to hear that application without notice to the other party, as is the case here.
From the face of the Application - Contempt and order 4 of the May 2022 orders, the mother was on notice that a warrant for her arrest could issue.
I’m satisfied that the mother has been served with the contempt application and the supporting material. I’m satisfied that the mother has been made aware of the May 2022 orders. I’m satisfied that despite her knowledge of the proceedings and the potential consequences – namely, the issuing of a warrant for her arrest, she has chosen not to personally appear today.
One of the primary functions of the Court exercising jurisdiction under the Act is to resolve disputes between parents regarding what are the appropriate arrangements for the care of their children. It does so by making parenting orders, and in doing so, must always place as paramount - the best interests of the child or children involved. This is the paramount or most important consideration.
The Court has available to it mechanisms to deal with situations in which a party to proceedings fails to take part in them appropriately. Insofar as the substantive proceedings are concerned – that is, the initiating application; in the face of a party such as here, where the mother has not filed any responding material, it is open to the Court to make an order in default, but clearly, given that the father is uncertain as to his parentage of X, it’s not likely to be in X’s best interests to make some form of default order regarding his care arrangements. The difficulty for the Court, however (and for the father), is that until the parentage issue is resolved, we are in a state of flux. Nothing further can proceed in terms of the initiating or substantive proceedings until that preliminary issue has been resolved.
In terms of case management and noting the Court’s obligations to give effect to the overarching purpose, I’m mindful that these proceedings have been on foot for almost a year, and yet the conundrum referred to earlier in my decision remains unresolved. The father says that if X is his son, he wants to play an active role in his life, and in my view, any further delay in the proceedings will only have the potential to prejudice a determination of X’s best interests if indeed the father is X’s biological father. It will place unnecessary stress on both parties to these proceedings, if nothing progresses quickly.
I am also mindful that I continue to have no information or evidence from the mother, so I accept that I cannot properly assess any prejudice to her, either in an adjournment of the proceedings, or the issuing of a warrant for arrest. But in the absence of any evidence to the contrary, this lacuna is one entirely of the mother’s making. With that in mind, as part of a suite of orders I intend to make, I have provided the mother with the opportunity to liaise with the Court to ensure that any safety concerns the mother may have are ameliorated to the best of the Court’s ability.
CONCLUSION
The proceedings, to be quite frank, have reached a state where there is no other means to resolve the conundrum except to have the mother brought before the Court.
The Court is of the view, having regard to all the matters discussed previously, that a warrant for the arrest of the mother should issue, pursuant to r 11.79 of the Rules. In summary, this is because the mother has failed to file any evidence with the Court or to appear today so as to satisfactorily explain why she has not attended Court today, in circumstances where I find that –
·she has been served with the proceedings and was aware of the two Court hearings related to these proceedings; and
·the only way to progress the parenting proceedings and resolve the parentage of X is to cause the mother to be brought before the Court to answer the contempt proceedings.
So for those reasons, the following orders are made.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Kearney delivered on 16 June 2022. Associate:
Dated: 16 June 2022
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