Undefended hearing proceeds in absence of father

Undefended hearing proceeds in absence of father

An example of the legal process rolling on whether or not litigants engage in the process:

  1. The ICL, Ms Kristine Medson, swore two affidavits on 6 September 2018.  She deposed that she emailed the father on 14 June 2018, enclosing a copy of the orders made on 7 June 2018.  Ms Medson deposed further that she advised the father that she would request that the matter proceed in his absence, in the event that he failed to comply with the trial directions and/or did not appear on 18 September 2018.  Ms Medson indicated that a hard copy of this correspondence was sent to the father at his residential address.  She deposed further that she emailed a copy of the Case Outline of the ICL to the father on 5 September 2018.
  2. In her second affidavit of 6 September 2018 Ms Medson deposed to a telephone conversation with the father on the same date.  Ms Medson set out this conversation in the following terms:

    5.           At approximately 12.25pm on 6 September 2018, I received a telephone call from the Respondent Father.  He informed me that he had received some e-mails over the last few days and that he was “peeved by what has been going on here”.

    6.           He went on to say words to the effect that “There is continuation of the allegations sexual abuse allegations.  None of it has been proved to a Court.”

    7.           I asked the Father whether he is intending to participate in the proceedings.  He responded with words to the effect “I am sick of the lies that have happened.”

    8.           I then asked him “Are you intending to come to the hearing on 18 September 2018?” and he responded with words to the effect “Is she (the Mother) going to turn up to the hearing?”  I responded “I believe so.  But that is irrelevant.”

    9.           The Father responded with words to the effect “I am not going to put up with this shit from you, the Court or my ex-partner.  Running my name into the ground.  I don’t appreciate my name being slandered into the ground.  I know that I have not done anything to my daughter.  How would you feel if I took your children (if you have any) off you?  You do not have the right to stop me from seeing my daughter.  That is my blood.  It is evil and barbaric what you are doing.  And you should be reprimanded for it too.  I will be going down the legal process to sue you, and I have the money to do it and I will go to the media.  I already have a politician on my side, who is trying to help me get my daughter back.”

    10.          I said to the Father “You have an opportunity to attend Court on 18 September 2018 and explain your position to the Judge.  If you do not attend Court on 18 September 2018, the matter will proceed in your absence.”

    11.          The Father responded with words to the effect “How can it proceed in my absence?  It is illegal to do so.”

    12.          I responded with words to the effect “It is not illegal, and I suggest that you get some legal advice in relation to that.”

    13.          The Father responded with words to the effect “I have had legal advice, and it is illegal.  I am telling you that.  If I don’t get my daughter back or get access to her, I will go down a legal path and splash your name and your firms name all over the media.”

    14.          I told [Mr Murnane] that that was okay and that it had been a pleasure speaking to him and said goodbye and hung up.”

  3. Against this background, I determined to deal with the application of the mother on an undefended basis.  The ICL sought orders in accordance with the Minute contained in her Application in a Case and the mother supported this proposal.  In my view, however, there was some doubt that the father had received adequate notice of these proposed orders.  The father did not refer specifically to the Outline of Case of the ICL in his conversation with her on 6 September 2018.

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