In this article, Partner, Kathleen Coggins and Solicitor, John Hickey discuss how the Full Court dismissed the father’s appeal and found that the trial judge’s consideration of the welfare of the children justified the decision to not adjourn the trial, particularly given the father’s history of domestic and family violence and their view that, even if the father participated in the trial, the same outcome would be reached.
Key issues:
- In Myron & Milson [2020] FamCAFC 151, the father appealed against a decision to dismiss his application for a trial to be adjourned on the basis that it was not in the best interests of the children for the matter to be delayed.
- The Full Court dismissed the father’s appeal and found that the trial judge’s consideration of the welfare of the children justified the decision to not adjourn the trial, particularly given the father’s history of domestic and family violence and their view that, even if the father participated in the trial, the same outcome would be reached.
In this case, three days prior to the trial commencing, the father filed an application to adjourn the proceedings for three months due to, among other reasons, an undefined medical condition.
The adjournment application was opposed by the mother and the independent children’s lawyer.
The father was a solicitor who had four children during his relationship with the mother. As noted by the Full Court, significant trauma had affected the family following the parties’ separation in 2015 as a result of the father’s conduct. This led to several protection orders being made against the father in favour of the mother, her new partner and the children. The father was also charged by the police in 2018 for taking one of the children from the mother’s partner’s home in the early hours of the morning. Following the incident, interim parenting orders were made for the eldest child to live with family friends and for the three youngest children to live with the mother. Subsequent interim orders were made for the two youngest children to spend only supervised time with the father.
The family report writer expressed the opinion that the welfare of the children would be severely compromised if their mother’s capacity to care for them was affected, particularly considering the history of violence and the fact the children were very dependent upon their mother’s resilience.
The primary judge dismissed the father’s adjournment application giving significant weight to the effect an adjournment would have on the children and on the mother.
The father did not attend the trial and Orders were made:
- for the mother to have sole parental responsibility; and
- that the children live with the mother and spend no time with the father.
The father appealed, submitting that the Court should have done more to enable his participation in the trial and to establish what occurred, which caused his inability to attend the trial.
The Full Court dismissed the father’s appeal and dismissed his applications to reopen and to adduce further evidence as to his psychological condition. The Full Court found that the Court had no obligation to make such an enquiry or to gather evidence to supplement a party’s case for an adjournment.
In relation to the lack of medical evidence provided by the father in his application to adjourn the proceedings, the Full Court held:
“It is no small matter to adjourn a parenting trial concerned with the welfare of extremely vulnerable children. The mere assertion of unfitness for work or inability to attend court, even by a medical practitioner, is unlikely to carry weight. It is expected that some explanation is given concerning the person’s medical condition and, unless the consequences of the condition are obvious, some explanation as to why the person is unable to attend court is necessary. This can be done briefly, and it is not suggested that in the circumstances of this case, busy medical practitioners were expected to provide lengthy medical reports. However, the paucity of information provided in the medical certificates as to the underlying facts and the basis upon which the conclusion as to incapacity was reached, more than justifies the primary judge’s decision to give them little weight.”
The Full Court also noted that, as a practicing solicitor who had carriage over his own matter, the father should have understood that his medical certificates were deficient and that his emails were unlikely to convince the Court of the need for an adjournment. The Full Court held that there was nothing more that the primary judge could have done with the information provided by the husband.
The Full Court further determined that where an appeal concerns the upholding, varying or setting aside of a parenting order, significant weight is given to the effect the evidence will have in determining the best interests of the children. The Full Court stated that given the ‘very worrying matters about the children’ and the fact there was no indication of when a further five to seven days of hearing time would become available, the trial judge’s consideration of the best interests of the children justified the decision to reject the adjournment.
In dismissing the appeal, the father was ordered to pay the mother’s legal costs in the amount of $12,999.90 within twenty-eight days.
If you have any queries in relation to domestic and family violence, or any other family law issue, please do not hesitate to contact a member of our Family and Relationship Law team.