Tarbell & Pedlar

[2021] FamCA 27

FAMILY COURT OF AUSTRALIA

Tarbell & Pedlar [2021] FamCA 27

File number(s):	BRC 2400 of 2019
Judgment of:	HOGAN J
Date of judgment:	27 January 2021
Catchwords:	FAMILY LAW – CHILDREN – parents leave during the course of the hearing – proceedings to continue in their absence.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	12
Date of hearing:	27 January 2021
Place:	Brisbane
Counsel for the Applicant:	Ms Pendergast
Solicitor for the Applicant:	Dore Family Law
First Respondent:	In person
Second Respondent:	In person

BRC 2400 of 2019

BETWEEN:

MS TARBELL

Applicant

AND:

MR PEDLAR
First Respondent

MS EMMET

Second Respondent

JUDGMENT OF:	HOGAN J
DATE:	27 JANUARY 2021

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

Hogan J

1. Should it be thought necessary, I will just deliver very short reasons in support of my decision to continue to proceed with the hearing in the absence of each of the parents.  Those reasons are as follows. 

2. Each of the parents were present when the matter was first before me this morning.  Reference to the transcript of the proceedings today will establish that each of them engaged in communication and discourse with me during the course of the morning and each outlined their respective positions in relation to orders or proposed orders that each would have sought.

3. Each of them did so in circumstances where, despite Directions having been made when the matter was set down towards the end of last year - I think, on 27 August 2020 for the filing of material, neither parent has filed either a Response document to respond to the Initiating Application filed on behalf of the Applicant, nor have either of them filed any affidavit material.

4. Insofar as Mr Pedlar is concerned, affidavit material from him was filed in about mid-2019 when he was then legally represented.  Other than that material, he has not filed any affidavit material in the course of these proceedings.  Insofar as Ms Emmet is concerned, she has not filed any affidavit material. 

5. Each of the parents, though, has participated generally in the process facilitated by the Independent Children Lawyer’s engagement of Ms C, a psychologist, who has prepared a number of reports to assist the Court.  Save for one occasion when Ms Emmet did not participate in the process, the parents have, therefore, provided to Ms C their varying accounts. Ms C’s reports, when considered longitudinally, contain an overview of each parent’s proposal, their responses to the various issues raised by the Applicant and, generally, the issues before the Court.

6. I am satisfied, therefore, because of their appearance this morning, that both parents were clearly aware of the hearing today.  As I have said, each of them participated to a certain point in the proceedings today.  I am not persuaded that it is appropriate nor necessary that these proceedings be adjourned to facilitate their further participation.  I remain somewhat unclear as to whether there would be any further participation even if the matter was adjourned, and I am, of course, cognisant of the cost, both public and private, to the other parties to the proceedings of such a course.

7. For those short reasons, then, I intend to continue to consider and hear the matter this afternoon. 

8. Insofar as the methodology to be implemented, at least insofar as Ms Emmet is concerned, she remained present during the course of the proceedings for the discussions about the various ways in which the proceedings could be brought to a conclusion.

9. Whilst Mr Pedlar chose to leave the courtroom prior to those discussions, I am satisfied that Ms Emmet remained aware of what was likely to occur in her absence or following her absence.  I consider it appropriate, and certainly in the child’s best interests, that I simply proceed to hear the submissions made on behalf of the Applicant and the Independent Children’s Lawyer in relation to the orders sought by each of those parties to the proceedings.

10. I also do so cognisant of the fact that those orders, insofar as the Applicant is concerned, are as particularised in the formal documentation filed on her behalf, including the Case Information document sealed 8 December 2020; I also take into account the contents of the Case Information document and its exploration of the issues and advancement of proposals in a way similar to that embarked upon by the Independent Children’s Lawyer in the Case Information document sealed 9 December 2020.

11. In that sense, I am also satisfied that each of the parents have been made aware of the orders likely to be sought by the Applicant and the Independent Children’s Lawyer respectively.  It is clear, therefore, that each of them have been provided with the opportunity to continue to participate in the hearing today.  The fact that each have, at the varying times, chosen not to continue to participate does not, in my view, provide an appropriate basis for any further delay in finalising the matter by way of the making of final orders.

12. For those reasons, then, I intend to proceed to hear the matter by hearing submissions from each of the Independent Children’s Lawyer and the Applicant, noting, as I do, that neither of those parties require witnesses called in the case of the other for cross-examination.  I also record the quite proper acceptance by the Applicant, as communicated by Ms Pendergast, of the Independent Children’s Lawyer placing on record the position of Ms C, the author of the Family Reports, vis-à-vis the frequency of time the child should spend with each of her parents. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate:       

Dated:       27 January 2021