FATHER SEEKS TO PROCEED WITH THE PARENTING PROCEEDINGS ON AN UNDEFENDED BASIS
Leager & Hedlin [2020] FCCA 2618 (24 September 2020)
This case involves a parenting application initiated by the mother where the latter fails to show up in court despite the notices from the adverse party and the court. The father seeks the court’s permission to proceed the hearing on an undefended basis.
Facts:
This matter is commenced by way of an Initiating Application that was filed by the Mother on 18 March 2019. The Independent Children’s Lawyer served a copy of the Orders that were made on 3 August 2020 on the Mother on 4 August 2020 and filed an affidavit of service on 7 August 2020, deposing as to service of those orders by email, at the Mother’s email address.
The Independent Children’s Lawyer informed the Court later in the morning that he had spoken to the Mother and the Mother did, in fact, join the hearing this morning on the telephone. The matter was then stood down to enable the parties to have some discussions, to see whether they could come to some consent agreement. Counsel for the Father sent through a Minute. The matter then, subsequently, came back prior to lunch and the Mother did not then join the hearing and could not be contacted.
The Court also sent this morning, an email to the Mother, asking the Mother whether she consented to the proposed minute of consent orders that were emailed through to the Court. That minute of consent orders was in the same form as the minute of orders sought by the Father in the Father’s Outline of Case. The Mother has not responded to the Court’s request for a response. The Court, at the commencement of the hearing , has also telephoned the Mother, and the Associate confirmed the telephone call has gone to voicemail.
Counsel for the Father has, therefore, made an application to proceed with the hearing of this matter on an undefended basis. The basis is that the Mother has not appeared, and that she has also not filed any trial material or any substantive material since the filing of the affidavit on 21 March 2019 which was in support of her Initiating Application.
Issue: Should the court grant the father’s application to proceed with the hearing on an undefended basis?
Law:
- R13.03 of the Federal Circuit Court Rules 2001- Default appearance of a party
- If a party to a proceeding is absent from a hearing (including a first court date), the Court or a registrar may do 1 or more of the following
(c) if the absent party is an applicant — dismiss the application;
(e) proceed with the hearing generally or in relarion to any claim for relief in the proceeding
Analysis:
The matter commenced and the Mother had not appeared. The matter was stood down and both the Independent Children’s Lawyer and Counsel for the Father made attempts to speak to the Mother.
The Court finds that the Mother has been notified that, in the event she did not either appear and/or file her trial material prior to today’s date, the Father may seek leave to proceed with his Application.
Conclusion: On default of appearance by the Applicant Mother and pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001, the Mother’s Initiating Application filed 18 March 2019 be dismissed and Pursuant to r. 13.03C (1)(e) of the Federal Circuit Court Rules 2001, the Respondent Father be granted leave to proceed on an undefended basis.