SAINT & SAINT

[2020] FamCA 861

FAMILY COURT OF AUSTRALIA

SAINT & SAINT [2020] FamCA 861

FAMILY LAW – CONTRAVENTION – Where the Applicant father failed to appear at the hearing – Where the Applications are dismissed for want of prosecution

Family Law Act 1975 (Cth)

APPLICANT: Mr Saint

RESPONDENT: Ms Saint

FILE NUMBER: BRC 407 of 2019

DATE DELIVERED: 12 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 October 2020

REPRESENTATION

THE APPLICANT: No Appearance

THE RESPONDENT: Self-represented

Orders

1. That in default of appearance by the Applicant, the Contravention Applications filed by him on 14 July 2020 and 11 August 2020 are dismissed for want of prosecution.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saint & Saint 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: BRC 407 of 2019

Mr Saint

Applicant

And

Ms Saint

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 14 July 2020, Mr Saint, who is the applicant in contravention proceedings that are listed before me this morning, filed his Contravention Application and supporting affidavit in which he sets out his evidence supporting the Application. It was listed for 9.30 am on 11 August 2020. 

2. On 7 August 2020, Mr Saint filed another Contravention Application and an affidavit with evidence supporting his claims for contravention set out in his application I have just referred. That, too, was listed for mention at 9.30 am on 11 August 2020. 

3. The matter was then before Registrar Brooks on 11 August 2020 and the Orders that Registrar Brooks issued that day say that the applicant, Mr Saint, appeared by telephone on his own behalf and the respondent, Ms Saint, appeared by telephone on her own behalf.  Ms Saint is before me in person today. On that day Registrar Brooks adjourned the applications (both of them filed on 14 July and 7 August), for hearing before a judge on 12 October at 10.00 am.  Registrar Brooks also ordered that personal attendance would be required unless otherwise advised.

4. The matter was again back in the Court, before Senior Registrar Rice, on 27 August 2020 where Mr Saint and Ms Saint both again appeared by telephone without legal representation.  Consent orders were made that day by Senior Registrar Rice dealing with amendments to the parties’ final parenting orders and providing for some additional make up time for Mr Saint in those Orders.  There are a number of notations to Senior Registrar Rice’s order, with the relevant one being:

   C.The father has indicated that in light of the orders agreed to today, he will give consideration to the balance of the issues sought to be addressed in his Parenting Contravention Application that is listed for hearing before the Honourable Justice Forrest in October of this year.

5. There is no record of the father having told the Court that he did not intend to proceed with the prosecution of his Contravention Applications today. They were originally listed at 10.00 am but because of COVID-19 restrictions on the number of people that can all be in the courtroom at once and having regard to the fact that I have a number of other matters to deal with this morning, I had my Associate write to the parties recently and inform them that their matter was going to be heard at 10.30 am this morning and that personal attendance at court was required.  My associate informs me that she sent an email to both the parents and that the email address of the father to which the advice was sent was ….  Ms Saint who is here today who received  that email telling her that the starting time was changed to 10.30 am this morning, confirms that is the email address at which Mr Saint received his emails that she sends and from which he responds to her when he sends emails to her. 

6. Mr Saint’s name has been called by my court officer three times outside the courtroom this morning and he has not appeared and no appearance has been announced for him.  I understand he lives at Suburb B and Ms Saint herself lives at Suburb D now, so there is a fair way to travel in order to get here, but having regard to the fact that it was originally listed for 10.00 am before it was moved to 10.30 am, one would think that was ample time. 

7. Mr Saint has their child, X, in his care pursuant to orders over the weekend and was responsible for dropping him at school this morning.  Ms Saint has checked with the school and X is in class and has been dropped off by his dad as expected. She told the Court that he could have been dropped any time from 8.00 am this morning.  That would, in my view, give Mr Saint ample time to get from Suburb F to Brisbane, it being now nearly three hours from 8.00 am, unless there was a particularly unforeseen holdup on the way, such as an accident, which sometimes happens. 

8. However, having said that, there has been no email or telephone communication with the Court this morning or with Ms Saint to simply tell her that he is on his way and has been delayed. 

9. In the circumstances, though one would expect if he had decided not to press his application that normal courtesy, both to Ms Saint and more importantly to this Court, would require him to either (a) formally withdraw his application or (b) simply tell the Court and/or Ms Saint that he did not wish to press on with his contravention application in the circumstances.  It would seem to me that his non-attendance and non-appearance and non-notification this morning, when it is now eight minutes to eleven, indicates that he is not going to attend. 

10. I have had my court officer ring his mobile telephone number twice and she has been unsuccessful in getting through.  My court officer has told me that both times she called it simply rang out and he did not answer.

11. Although one might have expected a courteous notification to the Court that he was not coming and in the absence of that and not knowing Mr Saint as a person who would not do that, I am just a little bit troubled about as to why he is not here, but in the circumstances I do not consider it appropriate or fair to require Ms Saint to stay around any longer when she has driven down from the C Region.  I do not see any need to keep the court staff and myself waiting any longer when he has had now 23 minutes to turn up and come through the door or to tell the Court that he was not going to come. 

12. He is the applicant in respect of those two contravention applications and I will order that in default of his appearance that both of the applications filed by him be dismissed for want of prosecution.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 October 2020.

Associate: 

Date:  12 October 2020