Watkins and Polglase

[2009] FamCA 877

FAMILY COURT OF AUSTRALIA

WATKINS & POLGLASE [2009] FamCA 877

FAMILY LAW – PRACTICE AND PROCEDURE – child proceedings – no appearance by the mother – where the mother has been given every opportunity to attend – best interests of the child – trial to be heard in the absence of the mother

State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
AON Risk Services Australia Limited v Australian National University (2009) 258 ALR 14
Zane & Allan (2008) FLC 93-378

Family Law Act 1975 (Cth) ss 43 & 60CC
Family Law Rules 2004 (Cth) rr 1.04 & 11.02

APPLICANT: Ms Watkins

RESPONDENT: Mr Polglase

INTERVENOR: Ministers for Families and Communities

INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

FILE NUMBER: ADF 3088 of 2001

DATE DELIVERED: 8 September 2009

PLACE DELIVERED: Whyalla Sittings

PLACE HEARD: Whyalla Sittings

JUDGMENT OF: Dawe J

HEARING DATE: 8 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Horvat

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

COUNSEL FOR THE INTERVENOR: Ms Cox

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

Orders

1. I will proceed to hear the trial in this matter in the absence of the mother.

IT IS NOTED that publication of this judgment under the pseudonym Watkins & Polglase is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT WHYALLA SITTINGS

FILE NUMBER: ADF 3088 of 2001

MS WATKINS

Applicant

And

MR POLGLASE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I rely on the principles in the Family Law Act 1975 (Cth) and in particular section 43 together with the Rules (in particular r 1.04). Rule 11.02 deals with the Court’s discretion to deal with default. The principles of r 1.04 suggest that the Court should proceed to determine matters in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.

2. In this particular matter the determination relates to the best interests of the parties’ child. Therefore I do take into account the provisions of Part VII of the Act which relate to children’s matters where it is envisaged that the best interest of the child is the paramount consideration. 

3. In this particular matter is it is not difficult to conclude that it is in the best interest of the child that the proceedings in the Family Court proceed today and be concluded as early as possible.  I take into account that these particular proceedings have been on foot for years.  The Court has attempted to hear the trial here in Whyalla on a previous occasion in November 2007.  The ongoing proceedings are likely to be having a detrimental effect not only on the mother and father, but the child and his family in general.

4. The case of State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 a High Court decision was often cited when dealing with the principles of determining when to proceed and the discretion the Court has to exercise in such cases.

5. There has recently been further comment upon that decision by the High Court in the case of AON Risk Services Australia Limited v Australian National University (2009) 258 ALR 14 in which comment was made about the principles to be applied in considering case management and adjournment of matters. I rely upon the High Court judgment, and in particular the emphasis upon the need to have a just resolution of a case and the need to consider all of the circumstances.

6. In this particular case I determine that the matter should proceed to a trial today. 

7. There has been recent discussion in 2008 by the Full Court of the Family Court in the matter of Zane & Allan (2008) FLC 93-378 about what an “undefended trial” means. Most of the cases in the Family Court dealing with cases on an undefended basis relate to property settlement proceedings and not in relation to children.

8. In this particular case if the mother does not appear then I am not able to hear her evidence and not able to have her evidence tested and I will need to hear counsel on the weight, if any, to be given to any documents the mother has filed. 

9. However, in order to determine what is in the child’s best interest I will have to hear evidence which enables me to draw the appropriate conclusions, in particular about the matters set out in section 60CC and primarily of course the benefit of the child having a meaningful relationship with each of the child’s parents and other relevant persons and the need to protect the child from harm.  They are the primary considerations. 

10. I will need to hear all evidence that is available presently.  If however, that evidence is to be received by me on the basis that it is not contested evidence, then I will not necessarily have to have the appropriate witnesses cross-examined.

11. I therefore have determined to proceed to hear the trial, whether that is strictly on the basis of an undefended hearing, as might be the case in civil proceedings involving an argument about money, I have not yet determined.

12. I do not think it is necessary to categorise what the Court is doing.  I am proceeding to hear the trial in the absence of the mother.  She has been given every opportunity to attend.  She was present in Court by telephone-link when the matter was adjourned for trial to start yesterday.  I have further adjourned the matter to this morning and she has been personally served with the Court order of yesterday and she has still failed to attend.  In all of those circumstances I will proceed to hear the trial in this matter and determine on the evidence that is currently available what is in the child’s best interests.

13. It is appropriate to stand the matter down briefly so that counsel can confer about what evidence each of them consider should be presented and the manner in which it is presented and whether it requires cross-examination or not.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  14 September 2009