ALFRED and ALFRED
[2021] FCWA 137
•29 JULY 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: ALFRED and ALFRED [2021] FCWA 137
CORAM: SUTHERLAND CJ
HEARD: 13 JULY 2021
DELIVERED : 29 JULY 2021
FILE NO/S: PTW 3906 of 2018
BETWEEN: MR ALFRED
Applicant
AND
MS ALFRED
Respondent
Catchwords:
PRACTICE AND PROCEDURE - Application under Rule 11.03 for relief from final orders made on an undefended basis - Whether the party applying for relief had a good reason for failing to comply with procedural orders for the filing of their trial documents - Consideration of the matters under Rule 11.03(2) - Case turns on own facts - Application dismissed
Legislation:
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Draper |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Mr Berry SC |
Solicitors:
| Applicant | : | Friedman Lurie Singh & D'Angelo |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Ferrier Athanasiou & Kakulas |
Case(s) referred to in decision(s):
Akbar & Mali and Anor (2015) FLC 93-685
Alfred and Alfred [2020] FCWA 240
Alfred and Alfred [2021] FCWA 124
Alfred and Alfred [2021] FCWA 59
Gallo v Dawson (1990) 93 ALR 479
Jensen v Nationwide News Pty Ltd [No 7] [2019] WASC 166
Lorde & Chu [2014] FamCAFC 228
Talbot & Talbot (2015) FLC 93-660
Wao & Chou [2018] FamCA 541
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alfred and Alfred has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
INTRODUCTION
1[Mr Alfred] (the “father”) and [Ms Alfred] (the "mother") were unable to reach final agreement either about parenting issues concerning their children, [Child A] and [Child B], or about financial issues arising from the end of their marriage.
2On 24 December 2020, I made orders dismissing the mother’s Form 1A Response and granting the father leave to proceed on an undefended basis, as against the mother.[1] The trial took place before me on 26 March 2021, during which the Independent Children’s Lawyer (“ICL”) cross-examined the father and the single expert witness, [Dr A]. At the conclusion of the trial I delivered ex tempore reasons and made final parenting and financial orders.
[1] The parenting proceedings continued to be defended as between the father and the Independent Children’s Lawyer.
3Since the trial, the mother has attempted to file various applications, effectively seeking to challenge the final orders and/or seeking other parenting and financial orders. I treated the mother’s Form 2 Application filed on 27 April 2021 as if it were an application under Rule 11.03 of the Family Law Rules 2004 (Cth) (the “Rules”), as it was apparent the mother was seeking to have the final orders discharged. In adopting that course of action, I had regard to the mother’s status as a self-represented litigant and what the Full Court had to say in Lorde & Chu [2014] FamCAFC 228 (“Lorde & Chu”) (at [36]):
Finally, it may be useful if we take this opportunity to draw attention to the fact that it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes (1981) FLC 91-060).
4Rules 11.02 and 11.03 provide as follows:
11.02 Failure to comply with a legislative provision or order
(1)If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.
Note: A defaulter may apply to the court for relief from this rule (see rule 11.03).
(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a) dismiss all or part of the case;
(b) set aside a step taken or an order made;
(c) determine the case as if it were undefended;
(d) make any of the orders mentioned in rule 11.01;
(e) order costs;
(f)prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g)make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).
Note: This list does not limit the powers of the court. It is an expectation that a non‑defaulting party will minimise any loss.
11.03 Relief from orders
(1)A party may apply for relief from:
(a) the effect of subrule 11.02(1); or
(b) an order under subrule 11.02(2).
(2)In determining an application under subrule (1), the court may consider:
(a) whether there is a good reason for the non‑compliance;
(b)the extent to which the party has complied with orders, legislative provisions and the pre‑action procedures;
(c)whether the non‑compliance was caused by the party or the party’s lawyer;
(d)the impact of the non‑compliance on the management of the case;
(e) the effect of non‑compliance on each other party;
(f) costs;
(g)whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and
(h)if the application is for relief from the effect of subrule 11.02(1)—whether all parties consent to the step being taken after the specified time.
5It was clear the mother struggled to frame her application in the proper way, and her affidavit in support did not address the matters the Court is required to consider pursuant to Rule 11.03. Accordingly, on 24 May 2021 I ordered the mother to “file and serve a Form 2 Application seeking orders pursuant to Rule 11.03 of the Family Law Rules 2004 (Cth), and an affidavit in support”. On 15 June 2021, the mother filed a further application and affidavit, ostensibly in compliance with my order. In that application, the mother sought (among other things) that some of the final orders made on 26 March 2021 be “discharged”. The mother did not, however, seek a specific an order pursuant to Rule 11.03. Senior counsel for the ICL submitted that the mother’s failure in this regard should be fatal to her application, because the Court should consider the application the mother actually filed, and not the application the mother failed to make.
6Although the mother did not refer to Rule 11.03 by name, the substance of her application filed on 15 June 2021 is clearly directed at seeking relief from orders that were made on an undefended basis, as against her.[2] I am satisfied that it remains appropriate to treat the mother’s application as having been made pursuant to Rule 11.03. I am also satisfied that having regard to the hearing on 24 May 2021 and the orders made on that occasion, all parties were well aware that the mother’s application would be argued pursuant to Rule 11.03. I observe that both the father and the ICL were prepared to, and did, address me in relation to that Rule at the ultimate hearing of the mother’s application.
[2] Thereby engaging with Rule 11.02(2)(c), and Rule 11.03(1).
7The ICL also submitted that Rule 11.03 is:
…unlikely to have any relevant application to circumstances where the application to extend time to file documents in compliance with an order is made after the Court event relevant to the material for which the extension of time is sought has occurred and orders made.[3]
[3] Father’s written submissions filed 9 July 2021, page 6.
8That submission sought to characterise the mother’s application for relief as being solely concerned with obtaining an extension of time for the filing of her trial documents, in circumstances where the trial had been completed and final orders made. The mother sought no such order. As noted above, the mother’s application filed on 15 June 2021 sought that certain orders made on 26 March 2021 be “discharged”. In my view, it is tolerably clear that the mother was thereby seeking relief from orders made against her on an undefended basis, rather than seeking an extension of time within which to file her trial material. I am satisfied that Rule 11.02(2)(c) when read with Rule 11.03(1)(b) provides me with the power to set aside orders made as a function of the Court determining the case as if it were undefended. I also observe that if the mother is successful in her application, a new trial will be ordered and fresh procedural orders will be made in any event for the filing of trial documents. In that regard, an application at this juncture for relief from procedural orders for filing of trial documents would be otiose.
9To avoid any doubt, I am treating the mother’s application as having been made under Rule 11.03 for relief from final orders made on 26 March 2021 on an undefended basis. That is the proper process, having regard to the Full Court’s comments in Lorde & Chu as set out above.
THE HEARING
10I heard the mother’s application on 13 July 2021. The mother relied on her affidavits filed on 21 April 2021, 15 June 2021 and 6 July 2021.[4]
[4] The mother also filed affidavits on 29 June 2021 and 2 July 2021. However, those affidavits related to recovery order proceedings instituted by the father on 28 June 2021, and in relation to which I delivered ex tempore reasons and made orders on 2 July 2021.
11At the hearing, the mother was self-represented and was assisted by an interpreter.[5] The father was represented by counsel, and the ICL by senior counsel. All parties made oral submissions. The ICL also relied upon written submissions filed on 9 July 2021. Counsel for the father adopted the submissions of the ICL.
[5] The mother advised the Court that she did not generally require the assistance of the interpreter for the hearing and would only defer to the interpreter if she did not understand a particular word or phrase.
12Both the father and the ICL opposed the mother being granted relief under Rule 11.03.
BACKGROUND FACTS
13The father commenced parenting proceedings in May 2018. The mother filed her responding documents in August 2018 (in which she also raised financial issues). Both parties sought interim parenting orders. There were numerous court hearings before the presiding Magistrate in relation to parenting issues, which ultimately resulted in the court making interim orders on 17 December 2019, including that the children live with the father, spend time with the mother each alternate weekend and the mother be restrained by injunction from removing the children from the father’s care and/or any school attended by the children.
14On 17 December 2019, the court also made standard procedural orders to progress the matter to trial, including: (1) for the parties to attend a readiness hearing; (2) for each party to file and serve their written undertakings as to disclosure and Minutes of Final Orders Sought no later than 56 days prior to the readiness hearing; and (3) for each party to file their respective trial documents no later than 21 days prior to the readiness hearing: that is, their single standalone affidavit setting out the whole of their evidence in chief for the purposes of the trial, an affidavit of each witness, a list containing the names of any proposed witness who had refused to provide an affidavit, and an up to date financial statement.
15On 26 May 2020, the father filed an urgent recovery order application after the mother unilaterally removed one of the children. That same day, the court made a number of orders, including issuing a recovery order (to lie in the registry pending the return of the child to the father later in the day) and otherwise suspending the interim parenting orders made on 17 December 2019.
16On 8 July 2020, the court made further orders to progress the matter to trial, including listing a readiness hearing to take place on 20 October 2020 which engaged the obligation[6] on the parties to file their trial documents 21 days prior thereto – that is, 29 September 2020. The record of proceedings noted that expedition of the proceedings was sought as the mother was refusing to spend any time with the children and the children were at serious risk of emotional harm.
[6] Per the Orders made on 17 December 2019.
17Although the mother filed various documents in the lead up to the readiness hearing (including Form 2 Applications and affidavits in support seeking further interim financial and/or parenting orders and for the removal of the ICL) she did not file her trial documents. However, I observe that at some stage, a copy of a financial statement sworn by the wife on 21 August 2020 was placed on the court file.
18On 10 September 2020, the parties participated in a Conciliation Conference with a Registrar. Recital F to the Conciliation Conference File Note recorded that:
The matter is in the Defended List. Programming orders were made on 17 December 2019 setting out the timetable for trial preparation and a Readiness Hearing is listed for 20 October 2020. The parties were reminded of these orders. The [mother] was also reminded that her financial claim is, as yet, undefined and the filing of the Minute of Proposed Orders is critical in setting out the precise orders she seeks by way of financial settlement.
19The father filed his trial affidavit on 13 October 2020, and his Minute of Final Orders Sought on 14 October 2020.
20At the readiness hearing on 20 October 2020, the presiding Magistrate made an order that the time within which the mother was to file and serve her trial affidavit and any witness affidavits be extended to no later than the close of registry on 23 October 2020. I observe that the mother attended that hearing and represented herself. The mother was assisted on that occasion by an interpreter.
21The matter was then listed before me for directions on 26 October 2020, after having been complex tracked by the presiding Magistrate. At the time of the hearing, the mother had still not filed her trial documents. During the hearing I asked the mother how much longer she required to file her trial affidavit and minute, and the mother replied, “by the end of the week if that’s possible”.[7] I then asked the mother that if I made an order extending the time to 4pm on Friday, 30 October, would she be in a position to file, to which the mother answered, “yes”.[8] Subsequently, the mother also confirmed that she had not yet filed her up-to-date financial statement, but could do so within the same timeframe.[9] I then made further orders [at paragraphs 1 and 6] that the time for the mother to file her trial affidavit, up-to-date financial statement and Minute of Final Orders Sought be extended to 4pm on 30 October 2020.
[7] Transcript of the hearing on 26 October 2020 commencing at 10.17am, page 3.
[8] Ibid.
[9] Ibid, page 10.
22By the time of the next procedural hearing before me on 13 November 2020, the mother had still not filed her trial documents. The mother did not attend the hearing. I made an order that the time for the mother to fully comply with paragraphs 1 and 6 of the orders made by me on 26 October 2020 be extended to the close of registry on 11 December 2020, failing which the mother’s Form 1A Response be dismissed and the father have leave to proceed on an undefended basis, insofar as the mother was concerned. I made procedural orders to deal with an urgent interim application in relation to [Child B’s] school enrolment for Term 1, 2021, including listing the matter to an interim hearing before me and making orders for the mother to file responding documents. I directed that a transcript of the hearing be ordered and provided to the parties free of charge.
23The mother did file responding documents in relation to the urgent schooling issue on 25 November 2020, supported by an affidavit that ran to 16 pages and included two annexures. Although the mother also sought to file further interim parenting applications and supporting affidavits that were not accepted for filing,[10] the mother still did not comply with the 13 November 2020 extension of time order, save and except that it appears that she re-filed the financial statement that was originally sworn by her on 21 August 2020.
[10] Including because the issues raised could not appropriately be dealt with on an interim basis and were more appropriately dealt with at trial.
24I dealt with the urgent schooling issue on 23 December 2020. The mother did not attend the hearing and it proceeded in her absence. The mother eventually arrived at the court nearly one hour late, and just after I had concluded delivering my oral reasons for decision. I directed that a transcript of my oral reasons for decision be ordered and provided to the parties free of charge.
25As the mother had failed to comply with the orders to file and serve her Minute of Final Orders Sought and her trial affidavit, on 24 December 2020 I made orders in chambers dismissing the mother’s Form 1A Response and granting the father leave to proceed on an undefended basis insofar as it concerned the mother.
26On 29 December 2020, the court issued a letter to all parties, including the mother, giving notice that the trial had been listed before me on 26 March 2021. Thereafter, the mother attempted to lodge Form 2 Applications on 30 December 2020 and 6 February 2021, seeking various interim parenting orders. Those documents were rejected for filing on the basis that the mother’s Form 1A Response had been dismissed, and the Court recommended that the mother seek legal advice about the orders made on 24 December 2020 and her options in relation thereto.
27On or about 9 February 2021, the mother wrote to the Court raising a number of matters, including: (1) the mother’s (erroneous) belief that I had made a direction at the readiness hearing on 26 October 2020 that the cross-examination ban applied to the case; (2) the mother’s inability to access the cross-examination ban scheme via Legal Aid WA because the Court had not made the relevant direction; and (3) the mother’s fear that filing her trial documents would irritate or anger the father and expose the children to a risk of harm.
28On 10 February 2021, the Principal Registrar wrote to the mother confirming (among other things) that the court had properly rejected her Form 2 Applications as her Form 1A Response had been dismissed and recommending that if the mother sought to be reinstated in the proceedings, then she seek independent legal advice in relation to her options. The Principal Registrar also clarified that the mandatory cross‑examination ban did not apply to the case, and that the ban was not triggered by the interim restraining order (as between the mother and father) made by the Magistrates Court of Western Australia on 13 December 2019.
29I have reviewed the transcript of the hearing that took place before me on 26 October 2020. At no stage during the hearing was the cross‑examination ban raised or discussed.
30The trial proceeded before me on 26 March 2021. Prior to the trial the mother did not take any steps to be reinstated in the proceedings. The mother arrived at court shortly after the commencement of the trial and observed the proceedings from the back of the courtroom. At the conclusion of the trial, I delivered oral reasons for decision and made final parenting and financial orders.
31By letter dated 1 April 2021, the mother wrote to the Court as follows (emphasis and errors per the original text):
Dear Sirs
I am [Ms Alfred] the respondent mother of the abovementioned matter.
I would feel obliged requesting to urgently stop orders made by the Court on 26 March 2021 and reconsider me filing Trial affidavit of the abovementioned matter for evidence to allow justice.
I refer to my letter dated on 31 March 2021 seeking relisting for Oral Submission.
Due to absence of full and frank disclosure of all financial by the father, making false and misleading statements of children matter to the court by the applicant under the undefended bases as Froude by the Father (the applicant). I seek the Court to stop he orders made on 26 March 2021 and reconsider me filing the Trial affidavit to allow test evidence.
On 26 March 2021, I did not manage to arrive on time at eh hearing on 26 March 2021 for reason that is out of my control. I have been trying park for more than 30 minutes as both garage parks near the court were full and side parks all busy except ones that only 30 minutes, I finally find a spot on the street that maximum 2 hours. Which led me to be late on the hearing time, during the hearing break I couldn’t risk missing the attending the hearing again to go to may car to add extra time, I was expecting to be fined which I did been fined for $60 because I had no other options. It is my bad luck and my deepest regrets not to have the opportunity to be well represented Infront her honour.
I had my trial affidavit ready in my way without legal assistance, it was 100 pages but my only problems was technical issue on how to put the Schedule in the Affidavit templet as the affidavit format from the Court site is restricted, and cite all the annexures in annexure list and the affidavit and whether it’s okay to attach them on USB because the large amount of annexure material plus my financial disclosure to the court.
I did not comply with the court orders 26 Oct 2020 and 13 Nov 2020 regarding filing court documents for reasons that is out of my control:
1.I was waiting to be served with the applicant trial affidavit and his witness affidavit as mentioned by him in the 20/26 Oct 2020 Hearing.
2.I received the applicant trial affidavit as a way of email service on Thursday 29 Oct 2020, a night before I had the children in my week. I couldn’t look at the applicant documents which I had the children as it was offended by some of the claims and I didn’t want to upset myself while the children were in my care, I was waiting for the children to go to the father care to work on my response.
3.Once the children left from my week, I had a fever, vomiting, migraine, body ach, cough, etc. By the end of the week, due to overwhelm stress, lack of sleep working on the court documents, and the flue and medicine effect on my sleep, I missed the court hearing on 13 Nov 2020.
4.11 Oct 2020 conversation between the children and the father rise a high concern about the children mental wellbeing from the father – my inability to provide the children with immediate help from the court on 20/26 Oct 2020, made me feel unwell while putting my affidavits together. I had to seek legal advice.
5.I was warried from the applicant reaction on me or on the children if I filed financial relief affidavit and if I became successful to obtain my seeking order despite receiving only around $50 a month child support starting from Nov 2020.
6.I was waiting for the applicant witness affidavit to respond to it as well, which not served to me until now if its filed. The children were in my care and my time and energy were focussed for them.
7.On 11 Nov 2020, the applicant filed another document, I had to respond to it. it distressed me and I was still waiting for the applicant wetness affidavit to respond to it, I attempt approaching to many services for legal help without success, giving my financial issue I couldn’t afford for privet solicitor.
8.I ordered many Transcript to relay on it for support to my trial affidavit, didn’t received it at that time. hoped I could speak with her honour on 13 Nov 2020 hearing to extend me a time until I get legal help.
9.On 23 Dec 2020, due to financial hardship on that particular week after the children left from my week I was at extreme hardship, I couldn’t afford for transport or parking fees to attend the court hearing. I missed the hearing time, but I was there, I explained to her honour the hardship effect on me but forgot to speaking about extending me time for the trial affidavit.
10.On 24 Dec 2020, was the same reason of 23 Dec 2020, but order made while I was setting at the waiting area.
11.My financial crises, lack of legal knowledge, language barrier, lack of legal assistance, effecting my performance in court compared to the applicant who unfairly denying my financial rights, waste thousands on Applicants and privet solicitor out of our asset pool to serve his favour without me and the children having the same right. While I manage the children’s needs and the court material/services costs at my only income from Centrelink and family members help from time to time.
I wasn’t able to file my trial affidavit on time because of my lack of legal knowledge, the language barrier, unsuccessful attempts to seek help/advice, the time it took to receive many hearing transcripts and reason for decision transcript in hope to know what I can do, and I missed understood the interpreter in regards of Legal aid scheme on 26 Oct 2020, I made many attempts to find out the order or direction about legal Aid help as the interpreter told me which made me relay on unreal hope, overwhelmed managing the children stability from problems created by the applicant while managing my court issues. While grieving the losses of 4 family member and relative overseas in one month who one of them died over Covid-19 and been in contact with my mother before she die (Med Nov – Med Dec) and worrying from loosing my mother at the same way (covid-19).
On Monday 21 March I sent the parties a copy of my draft Affidavit and again explained my uncertainty that the Court will accept my affidavit at that time, however, I was still stressed about how to attach the annexures to the affidavit.
I would be obliged if the Court may order to accept me affidavit the court as it suits the court to appropriately to represent myself.
I respectfully seek the court to look at my exceptional circumstances and reconsider my reasons for why not been able to comply with the court orders regarding filing trial affidavit and the financial relief support affidavit.
And I respectfully seek the court to urgently stop the Orders made on 26 March 2021 as this will allow properties and funds to be mistreated before justice take place, and order as it suit the court to allow me have a finical relief to hire property evaluation expert fees and cover living expenses costs.
32On 27 April 2021, the mother lodged a further Form 2 Application seeking interim parenting orders, including that the final parenting orders made on 26 March 2021 be discharged / varied. As I have earlier set out in these reasons, although it was not framed as an application under Rule 11.03, I directed that the application be treated as if it were. I also observe that the mother’s affidavit in support, which ran to 143 pages including multiple annexures, simply did not address any of the matters the court is required to consider pursuant to Rule 11.03.
33At the first return date of the mother’s Form 2 Application filed on 27 April 2021, the mother was represented by pro bono counsel. I raised with the mother’s counsel and the other parties my concerns about the mother’s application and affidavit in support, namely that her documents did not address the matters the court needed to consider in determining an application pursuant to Rule 11.03, or enable the other parties to sensibly respond. Accordingly, I made further procedural orders for the mother to file and serve a Form 2 Application seeking orders pursuant to Rule 11.03 and an affidavit in support.
34On 15 June 2021, the mother filed a further Form 2 Application and affidavit in support, ostensibly in compliance with my order. In relation to the mother’s Form 2 Application:
a) The mother sought that various property settlement orders made on 26 March 2021 (dealing with [Property A]) be discharged. However, the mother did not seek to disturb the other property settlement orders made by the court. In addition, the mother sought various interim orders in relation to Property A and for the payment of the sum of $25,000 to her; and
b) The mother sought that all previous live-with and spend-time-with orders in relation to the children be discharged. In addition, the mother sought various interim parenting orders in relation to the children.
35The mother’s affidavit in support, which ran to 84 pages, still did not address the matters the court is required to consider pursuant to Rule 11.03 in any significant way, and instead focussed on various matters that were simply irrelevant. The salient part of her affidavit was found at paragraph 18 as follows (errors per the original text):
Noting that the reasons of my inability to comply with filling court documents in circumstances out of my control despite my unstoppable efforts and attempt are explained in my Letters to Court started from the letter dated on 30 March 21. In which I’d be obliged if the court would understand and excuse me as the Court matter is extremely important to me.
36The Court has been unable to locate any letter from the mother dated 30 March 2021. However, the Court did receive the letter from the mother dated 1 April 2021, as set out above.
37On 6 July 2021, the mother filed a further affidavit, which ran to 62 pages.[11] The bulk of the affidavit (from pages 19 to 61) set out the mother’s evidence in relation to disputed parenting matters, including in relation to: family violence; concerns about physical discipline; the impact of a shared-care / week-about living arrangement on the family; the children’s health and safety; school-related issues; the children’s background and culture; holidays and travel; and the mother’s concerns about paternal family members. The balance of the affidavit (from pages 3 to 19) sought to address the mother’s reasons for failing to comply with orders for the filing of her trial documents, and her late attendance at the trial itself. I observe that the topics canvassed in the affidavit simply repeated and/or elaborated on the content of the mother’s letter to the Court dated 1 April 2021.
LEGAL PRINCIPLES
[11] Although the body of the affidavit referred to various annexures, no documents were annexed.
38In Akbar & Mali and Anor (2015) FLC 93-685, the Full Court (Strickland, Ryan and Austin JJ) explained that:
[26]…Rules 11.02 and 11.03 are linked and in combination address the consequences of failure to comply with a procedural obligation and how a party may be relieved of those consequences. As we will explain these rules establish a three part process as follows:
· a step taken contrary to a procedural obligation is of no effect;
· consideration of the consequences of non-compliance; and
· how a party may apply for relief from the effect of r 11.02(1) or an order made pursuant to r 11.02(2).
…
[27]It can be seen that the effect of r 11.02(1) is that if a step is taken after the time specified by the rules, the regulations or a procedural order, the step is of no effect. The step thus deemed not to have been taken, the effect of r 11.02(2) is that the court can next determine the consequences of that non-compliance in accordance with r 11.02(2) which comprises a non-exhaustive list of the court’s case management powers.
[28]Of course, when determining the consequences of non‑compliance regard must also be had to the main purpose of the rules, which is to be found at r 1.04. That rule provides:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
(Note omitted)
[29]It follows that the just resolution of proceedings is pivotal to the application of the rules. What is “just” includes considerations of timeliness and cost and takes into account the interests of the parties as well as those of the court and other litigants who may be affected by delay.
[30]Thus, the combined effect of rr 1.04 and 11.02(2) is that the consequence of non-compliance imposed pursuant to r 11.02(2) must be:
1. responsive to the particular breach;
2. proportionate to the seriousness of the breach; and
3.may take into account the wider interests of case management and other litigants.
[31]Self-evidently, before the court determines which, if any, of the r 11.02(2) consequences should be imposed, the affected parties must be given the opportunity to address the issue. Not only did his Honour determine the issue without effectively hearing from the solicitor for the wife, as counsel for the father wryly observed, he did so without giving either counsel for the father or counsel for the Second Respondent an opportunity to speak to the issue. Notwithstanding that this specific denial of procedural fairness is not captured by the grounds of appeal, we are sufficiently concerned about the approach which was adopted that we could not allow it to pass without reminding his Honour of his obligation to afford parties procedural fairness.
[32]The third aspect of these rules arises from r 11.03 which enables a party to apply for an order relieving him or her from the consequences of r 11.02(1) or an order under r 11.02(2). The factors which the court in the exercise of its discretion, may consider in determining whether or not to grant relief pursuant to r 11.03(1) are set out in r 11.03(2). As Note 2 to this rule makes plain, an application for relief pursuant to r 11.03(2) may be made by filing an application in a case or, with the court’s permission, orally at a court event. Irrespective of how the application is made, the court is obliged to afford the affected parties procedural fairness.
[33]Inter alia, the factors set out in r 11.03(2) are designed to ensure that a party would not suffer unfair consequences of non-compliance with a procedural obligation if the non‑compliance was caused by that party’s lawyer, where there is a good explanation for the breach, or the other parties agree the party should be excused. In other words, the scheme of this sub rule is to ensure that these rules do not operate as instruments of injustice and there is a just and proportionate response to any breach.
39A differently constituted Full Court (Bryant CJ, Murphy and Duncanson JJ) in Talbot & Talbot (2015) FLC 93-660 considered an appeal by the father in relation to orders made following an undefended trial, in circumstances where the father failed to participate in the proceedings. The father asserted appealable error on the basis that he was denied procedural fairness. The Full Court observed (at [15]) that the gravamen of that ground of appeal was in two parts:
…first that the father was unable to engage in the process and, secondly, that it may have been a result of what (the father infers) were temporary disabilities which (again inferentially) are now not present.
40In disposing of that ground of appeal, the Full Court said (from [16] onwards):
[16]A relevant aspect of the exercise of the discretion is “an inability or unwillingness to cooperate with the court and the other party …” (Lenijamar Pty Ltd & Ors v AGC (1990) 98 ALR 200).
[17]An explanation for failure to attend is also a highly relevant consideration in cases of this type. (See, for example, Taylor v Taylor (1979) 143 CLR 1; Wilkes and Wilkes (1981) FLC 91-060; Leslighter & Fitzgerald-Stevens (2012) 47 FamLR 384).
[18]His Honour had no evidence of the father’s illness or incapacity. The wife’s chronology sets out the Court events which the father did not attend. He did attend the Conciliation Conference, at which orders were made programming the matter to a Readiness Hearing. The wife served her trial material on the father’s solicitors, but neither the father nor his solicitors attended the Readiness Hearing. The wife’s solicitors wrote to the father personally and advised him the matter was in the Callover. The father did not respond to that letter and neither he nor his solicitors attended the Callover. The Court wrote to the father’s solicitors advising of the trial date. The wife’s solicitors also wrote to the father and advised him of the trial date.
[19]His Honour considered the evidence before him, including: the long history; the springing order (and the indulgence given to the father by the failure to execute it); the complete absence of instructions to his solicitor; the fact that the wife’s solicitors wrote to him direct and received no response including, importantly, no response to the effect that he was too sick to participate at all etc. In effect, the father conceded as much.
[20]In Allesch v Maunz (2000) 203 CLR 172 Kirby J held:
[39]Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
[40]Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
[21]The essence of the relevant principles (exemplified by Kirby J above) is that procedural fairness requires parties to be given a proper opportunity, and reference to the history of the matter, to which we have referred above, and his Honour’s unchallenged factual findings about the opportunities and failure to avail render the challenge unsuccessful.
[22]In these circumstances, we consider his Honour was entitled to proceed on an undefended basis, and we find no error in this respect.
41In Wao & Chou [2018] FamCA 541, McClelland J (as his Honour then was) was required to determine whether a party should have leave to rely on an affidavit of their solicitor, filed on the first day of the hearing. It was accepted that the affidavit was filed contrary to trial directions made almost a year earlier. In disposing of the issue, McClelland J said:
[7][I was provided] with a decision of the Full Court in Akbar & Mali [2015] FamCAFC 244, which refers to those matters that the Court should have regard to in exercising its discretion, pursuant to Rule 11.03. An important consideration is the overall purpose of the Rules. I will shortly discuss that matter in greater detail.
[8]It is also relevant, in my view, to have regard to the importance of appropriate case management, as informed by relevant authorities. In Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 (“Expense Reduction v Armstrong Strategic”), the High Court quoted the British Court of Appeal in Jameel (Yousef) v Dow Jones & Co Incorporated [2005] Q.B. 946 at [54], where it was said:
It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.
[9]In Expense Reduction v Armstrong Strategic, the High Court at paragraph 51 referred with approval to Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, stating:
In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.
[10]As against the background of those authorities, I return to address the main purpose of the Rules. Rule 1.04 relevantly provides:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
42His Honour later noted at [47] that:
…in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at paragraph 111, the High Court said that, in applying principles of case management, the Court should be cognisant of “the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants”.
43In a Western Australian context, a similar sentiment was expressed in Jensen v Nationwide News Pty Ltd [No 7] [2019] WASC 166, where Quinlan CJ observed (at [75]) that case management orders will not achieve their objectives of a just, timely and cost-efficient resolution to the dispute if parties treat them as “aspirational guidelines rather than binding obligations imposed in the interests of justice”.
THE RULE 11.03 CONSIDERATIONS
44I will deal with each of the Rule 11.03(2) considerations in turn below. To the extent I do not refer to a consideration, it is because I do not consider it is relevant.
Whether there is a good reason for the non-compliance
45The mother’s non-compliance was her repeated failure to file her trial documents in accordance with procedural orders made by the Court, as follows:
a) Pursuant to orders made on 17 December 2019, the mother was to file her trial documents by 29 September 2020 (that is, 21 days prior to the readiness hearing). She failed to do so, save for filing a financial statement in August 2020, which she filed again in November 2020.
b) At the readiness hearing on 20 October 2020, the mother was provided with an extension to 23 October 2020 to file her trial documents. Again, she failed to do so.
c) At the hearing on 26 October 2020, the mother was granted a further extension through to 30 October 2020 to file her trial documents. That extension was based on the mother’s own assessment of the time she would require. Again, the mother failed to file her documents.
d) At the hearing on 13 November 2020, the mother was granted yet another extension of time to file her trial documents, this time for a period of four weeks through to 11 December 2020. The Court also made an order that in the event the mother did not file her trial documents, then her Form 1A Response would be dismissed and the father would have liberty to proceed undefended. The mother again did not comply.
e) The mother did not attend the hearing on 23 December 2020 (instead, the mother arrived nearly an hour late, and after I had concluded delivering oral reasons). The mother had still not filed her trial documents. Accordingly, on 24 December 2020, I made orders in chambers dismissing the mother’s Form 1A Response, and granting the father leave to proceed undefended as against the mother.
46As seen, the mother’s non-compliance commenced with her failure to file her trial documents on or before 29 September 2020 and was not remedied despite the Court granting the mother three extensions of time totalling nearly two and a half months. Those extensions of time must also be seen in the context of the case having been earmarked for expedition to trial, as a result of the mother refusing to spend time with the children. By the time the Court formally dismissed the mother’s Form 1A Response on 24 December 2020, nearly three months had passed since the date on which the mother was originally due to file her trial documents.
47The mother advanced the following reasons for her failure to comply:
48 Firstly, the mother complained that she found it difficult to prepare her trial documents, because: (1) English is her second language; (2) she lacks legal knowledge; and (3) she has been unable to obtain independent legal advice. Although the mother’s written English is not perfect, it is readily understandable. I simply do not accept that the mother’s English proficiency precluded her from filing her trial documents in circumstances where she drafted and lodged for filing a number of other substantial documents during the period September 2020 to March 2021, as identified earlier in these Reasons.
49I observe that the mother has had the benefit of legal representation at different times throughout the proceedings, but has been unrepresented (so far as the Court record is concerned) since 15 January 2020.[12] The mother also deposed to receiving ad hoc legal advice from Legal Aid WA in February 2021, and from the Women’s Legal Centre in March 2021. It would appear the mother sought the assistance of Legal Aid WA in relation to the recovery order application she (unsuccessfully) attempted to file on 6 February 2021. Legal Aid provided the mother with advice about the nature and effect of the Orders made on 24 December 2020 dismissing the mother’s Form 1A Response and granting the father liberty to proceed undefended. The mother deposed that she “learned the reasons why the order…was made that way and my options”.[13] Even so, the mother made no attempt to file an application and supporting affidavit prior to the trial on 26 March 2021 seeking relief from the Orders made on 13 November 2020 and 24 December 2020.
[12] Being the date on which the mother’s last solicitors of record ceased acting for her.
[13] The mother’s affidavit filed 6 July 2021, page 6, [17(i)].
50I am also not satisfied that the mother’s lack of legal representation and knowledge is, in and of itself, a good reason for her non-compliance. Many members of the Western Australia community find themselves in the position of representing themselves in family law proceedings, some without having received any legal advice at all. It would be antithetical to the proper administration of justice if a person’s status as a self-represented litigant, without more, excused non-compliance with orders. As McHugh J observed in Gallo v Dawson (1990) 93 ALR 479 at 481, a “lack of legal knowledge is a misfortune, not a privilege”.
51 Secondly, the mother complained that her physical and mental ill health impacted her ability complete her trial documents. In particular, the mother deposed to the following:
a) The mother fell ill on about 6 November 2020, developing a bad cough, fever and vomiting which lasted for about a week. The mother then attended the pharmacy and was given a flu tablet. The mother says she was still sick by the time of the hearing on 13 November 2020.
b) The mother became sick in the weeks following her one‑off appointment with Legal Aid in mid-February 2021 as she attempted to complete her trial documents. The mother was not specific about the nature of her illness during this period.
c) Generally, the mother reported suffering from stress and anxiety, caused by: (1) the father’s “bullying”; (2) the mother’s perception that the ICL was “enabling” the father; (3) the mother’s concern at the children having to spend time with the father; (4) needing to read the father’s Court documents; and (5) the court proceedings generally.
d) The mother reported that she had experienced a pattern of becoming ill around the time of court hearings, and that her GP informed her this was caused by anxiety. The mother said she was prescribed medication that made her sleepy.
52There was no independent medical evidence that the mother’s alleged ill health (whether physical and/or mental) precluded her from completing her trial documents. Nor did the mother suggest that she was medically unfit throughout the entire period under consideration. I am not persuaded that the mother was so unwell that she was unable to complete her trial documents, particularly when she was well enough to prepare numerous other interim applications and affidavits during the same period.
53 Thirdly, the mother complained that she was unable to dedicate time to preparing her documents because of her caring commitments to the children. I do not accept that this was a good reason for the mother failing to complete her trial documents, because: (1) the children were not in the mother’s care in the months leading up to October 2020;[14] and (2) when time did recommence on 12 October 2020, the children lived with the parties on a week-about basis until late January 2021, at which time the mother again refused to see the children.[15] I am satisfied the mother had ample time when the children were not in her care to attend to preparing her trial documents.
[14] Alfred and Alfred [2020] FCWA 240, [27] – [32].
[15] Alfred and Alfred [2021] FCWA 59, [13].
54 Fourthly, the mother complained about encountering technology problems in compiling her trial affidavit. In particular, the mother deposed to having difficulty compiling the annexures to her affidavit (notwithstanding that her affidavit in relation to interim issues filed on 25 November 2020 contained annexures). The mother provided no evidence of the steps that she took to address these problems. One option would have been to seek the assistance of the Customer Service staff at the Court, including attending the staffed computer kiosk in the Registry. That service is provided by the Court to assist members of the public prepare and file their trial documents in electronic format. Another option would have been to seek the assistance of a third party with the necessary computer skills. In any event, the difficulties the mother was having in compiling the annexures to her trial affidavit do not account for her failure to file her other trial documents; for example, her Minute of Final Orders Sought. The mother was specifically reminded at the Conciliation Conference[16] that it was important she file a Minute, particularly as her financial claim was undefined.
[16] On 10 September 2020.
55 Fifthly, the mother complained that the father’s failure to provide full and frank disclosure in relation to financial matters affected the preparation of her trial affidavit. However, the order for the parties to file their trial affidavits was not made conditional upon the parties discharging their obligations of disclosure. Further, if the mother was genuinely concerned about the impact of the father’s alleged non‑disclosure on her trial preparation, then she could have: (1) made an application seeking specific orders for disclosure against the father; (2) requested the court to issue subpoenas. I observe that the Court did make an order for disclosure at the request of the mother, on 10 August 2020. If the mother considered the father failed to comply with that order, she was at liberty to bring the matter to the Court’s attention prior to the trial on 26 March 2021 but did not do so.
56 Sixthly, the mother complained that the father filed his trial documents late. The procedural order made for the parties to file their trial documents was for simultaneous filing, and not sequential filing. The mother was obliged to file her trial affidavit regardless of whether the father filed his. To the extent the father filed his trial affidavit after the mother had filed hers, the mother would have been given leave to file a further affidavit in reply if necessary, or would have otherwise been provided with the opportunity to lead viva voce evidence at trial in relation to any new issues.
57 Seventhly, the mother complained that she was waiting on the production of transcripts of court hearings. There was no explanation by the mother as to why the transcripts were material to the preparation of her trial documents.
58 Eighthly, the mother asserted that she “misunderstood the interpreter regarding Legal Aid grants direction from the court” at the readiness hearing on 26 October 2020. The mother’s case appears to be that she believed the cross-examination ban applied to the proceedings, meaning she was eligible for legal aid under the associated scheme. Although it is far from clear, the general thrust of the mother’s complaint appears to be that she wasted time on “chasing” a grant of legal aid under the scheme, rather than getting on with preparing her trial documents. As noted earlier, I have reviewed the transcript for the hearing on 26 October 2020, and the issue of the cross-examination ban was neither raised nor discussed. The only reference to Legal Aid was in the context of a discussion between the Bench and the ICL about whether Legal Aid would fund a Late Intervention Dispute Resolution conference, or whether the Court should instead provide the parties with the opportunity to participate in a Pre-Trial Conference. In any event, the mother’s complaint about what the interpreter allegedly told her sits uncomfortably with the very clear answers she provided at the hearing on 26 October 2020 as to when she would be in a position to file her trial documents (that is, by the end of that week).
59 Ninthly, the mother says she became confused about what documents would be accepted for filing and what would not, given the documents she sought to file on 5 August 2020 were rejected. In this regard, the mother referred to a letter from the Court dated 15 August 2020. I have searched the Court file and can find no letter of that date. Instead, the Court wrote to the mother by letter dated 10 August 2020, and said:
The Form 2 Application and affidavit were referred to the Presiding Magistrate who has directed that I write to you to inform you that the Form 2 Application cannot be accepted for filing at this stage primarily due to the fact that the Form 2 Application appears largely to seek final orders.
It is noted that the proceedings are in the Defended List as from 17 December 2019 and a Readiness Hearing date is listed for Tuesday, 20 October 2020 at 10:00 am. All interim applications were dismissed by orders made by the Court on 8 July 2020 and the matter is to progress to a final defended hearing.
The bulk of the orders contained in the Form 2 Application appear to be orders that are appropriately dealt with on a final basis and not on an interim basis.
With the exception of paragraph 5 relating to disclosure, her Honour has determined that the Form 2 Application should not be accepted for filing. The Form 2 Application, affidavit in support and up-to-date Form 13 Financial Statement are returned.
Her Honour has determined however, that the Court will make an order in Chambers to deal with the alleged outstanding disclosure issue. The Applicant will have liberty to apply to discharge or vary the order should he consider it to be inappropriate for any reason.
In respect of paragraph 17 of the Form 2 Application, an order is sought for the Applicant to undergo a psychological assessment. There is insufficient information contained in the material filed to enable the Court to assess whether this is an order which should be made on an interim basis.
60Even if the mother was confused, I am satisfied that the Registrar addressed the issue during the Conciliation Conference on 10 September 2020, by reminding the parties about the need to comply with the trial directions made on 17 December 2019.
61 Tenthly, the mother deposed that in the four weeks up until 23 December 2020, she had been grieving over the death of four people, two of whom were dear to her. The mother did not (in her sworn evidence) identify who those people were, nor the nature of their relationship to the mother. [17] The mother also did not provide evidence of the dates on which she became aware each of the four people had died, other than the general timeframe referred to above. The mother also deposed that she became stressed in relation to the safety of her mother, given one of the four contracted COVID-19 prior to their death, and had attended a wedding party with the mother’s mother.
[17] Although the mother’s letter to the Court of 1 April 2021 suggested those who had died were the mother’s family members, her affidavit filed 6 July 2021 did not specify as such.
62Even if I accept the mother’s evidence as to her bereavements, on the available evidence I am not persuaded those deaths occurred prior to 11 December 2020. I am also not persuaded on the available evidence that the death of the four unidentified people affected the mother’s capacity in such a way so as to render her unable to prepare her trial documents.
63 Finally, the mother complained that financial hardship meant she was unable to prepare her trial documents. I simply do not accept this reason, given the number of other applications and affidavits the mother lodged for filing in the period September 2020 to March 2021.
The extent to which the party has complied with orders, legislative provisions and the pre-action procedures
64The mother deposed at length to the father’s purported non‑compliance with court orders, and his alleged failure to give full and frank disclosure. However, the focus of this consideration is on the conduct of the party seeking relief – that is, the mother.
65The ICL submitted that the mother historically failed to comply with both procedural and substantive orders of the Court. The mother asserted that she had complied with “all” court orders.[18] I have already set out above the mother’s non-compliance with the procedural orders for the filing of her trial documents. In terms of the mother’s non‑compliance with substantive orders of the Court, I observe the Court made recovery orders against the mother in May 2020[19] and July 2021.[20] I also observe that at various points in the proceedings, the mother has simply refused to spend time with the children, contrary to the interim parenting orders then in place.[21]
Whether the non-compliance was caused by the party or the party’s lawyer
[18] Mother’s affidavit filed 6 July 2021, page 13, [52].
[19] Alfred and Alfred [2020] FCWA 240, [27].
[20] Alfred and Alfred [2021] FCWA 124.
[21] Alfred and Alfred [2021] FCWA 59, [9] and [21].
66The mother has been self-represented since January 2020. The mother received some ad hoc assistance from Legal Aid WA and the Women’s Legal Centre in February and March 2021 respectively.
67The mother deposed that she provided the Women’s Legal Centre with a draft trial affidavit on either 17 or 19 March 2021 (both dates were specified in the mother’s affidavit filed 6 July 2021). The mother deposed that the Women’s Legal Centre never responded. That is hardly surprising given the trial was due to commence on 26 March 2021. Further, the mother’s evidence about the basis on which the Women’s Legal Centre agreed to assist her was unclear. I observe the Women’s Legal Centre did not file a Notice of Address for Service indicating they were now acting for the mother.
68I am satisfied that the mother’s failure to file her trial documents was her own.
The impact of the non-compliance on the management of the case
69On 24 December 2020, I made orders for the matter to proceed to trial on an undefended basis. The trial proceeded, and final orders were made. The case was completed. As noted earlier, both the father and the Single Expert Witness gave evidence at trial, and both were cross‑examined by the ICL.
The effect of non-compliance on each other party
70The father and the ICL prepared for and completed the trial on the basis that it was undefended as against the mother. The father was represented by private solicitors. The ICL was funded by Legal Aid WA.
71I am satisfied that both the father and the ICL would suffer prejudice in the form of wasted legal costs if the final orders were set aside, and a new trial ordered.
72I am also satisfied the father would be prejudiced on the basis that he was entitled to assume, upon the making of final orders, that both parenting and financial matters had been finally determined.
Costs
73The mother did not offer to pay the father’s and the ICL’s costs thrown away of the undefended trial in the event she succeeded in her Rule 11.03 application. Pursuant to the final financial orders made on 26 March 2021, the mother stands to receive assets totalling $711,600 (representing 40 per cent of the net asset pool), including an unencumbered real property in [Suburb A] worth $430,000.[22] It was not clear to me what, if any, steps had been taken to give effect to the final property settlement between the parties, including transferring the Suburb A property into the mother’s sole name.
[22] Alfred and Alfred [2021] FCWA 59, [36], [55] and [56].
74The mother maintained in her affidavit filed on 6 July 2021 that she was experiencing financial hardship (to the extent that she was unable to afford parking when attending Court). On the available evidence, and having regard to the property to be retained by the mother pursuant to the final orders, I am satisfied that the mother was in a financial position to offer to meet an order for costs thrown away.
Other matters
75The list of considerations in Rule 11.03(2) is not exhaustive, and I am permitted to consider other relevant matters.
76In my view, it is relevant that the parenting proceedings were not conducted on an entirely undefended basis, given the participation of the ICL. The Court also had the benefit of hearing from the Single Expert Witness who was subject to cross-examination.
DISCUSSION AND CONCLUSION
77None of the reasons advanced by the mother for her failure to file her trial documents, whether taken separately or cumulatively, are in my view good reasons. Non-compliance with procedural orders for the filing of trial documents is a serious matter. It affects not only the parties to the proceedings (in terms of delay and cost), it also negatively impacts the efficient running of the Court and the proper administration of justice. It wastes precious judicial time that could be spent on other families waiting to have their matters heard and determined.
78In this case, the mother was granted three extensions of time to file her trial documents. She failed to do so. At no time prior to the trial on 26 March 2021 did the mother file an application seeking relief from the order made on 13 November 2020, or the orders made on 24 December 2020 dismissing the mother’s Form 1A Response and granting the father liberty to proceed undefended. The mother’s failure in this regard is inexplicable given the Principal Registrar wrote to the mother on 10 February 2021 and clearly explained that such an application was necessary. Further, the mother deposed to receiving advice from Legal Aid WA in mid-February 2021 about the orders made on 24 December 2020 and her “options”. Even so, the mother still failed to file the necessary application. Instead, she waited until the trial was completed and final orders were made before taking any action.
79Rather than completing her trial documents, the mother instead occupied her time by preparing, and lodging for filing, numerous interim applications and affidavits that suited her concerns at the time. In those circumstances, I do not accept the various reasons advanced by the mother were causative of her failure to file her trial documents. My finding in this regard is reinforced by the mother’s failure to adduce any admissible evidence from her treating health practitioners in relation to her alleged health issues, and the impact of same on the mother’s capacity to participate in the proceedings. I have little doubt the mother’s experience of the family court proceedings has caused her stress and anxiety. Many litigants in this Court would express a similar view. However, I am not prepared to set aside final orders simply on the basis of the mother’s bald assertions that she was unwell. More was required to persuade me that the mother’s ill-health constituted a good reason for her failure to comply. If it were otherwise, procedural orders would routinely be ignored without consequence.
80I decline to exercise my discretion to set aside the final orders of 26 March 2021. In my view, given the mother’s failure to provide any good reason for her failure to file her trial documents, I am satisfied that the prejudice to the other parties of a fresh trial, coupled with the impact on the Court’s resources of adding this case once again to the defended list, militate convincingly against granting the relief sought.
81As the mother’s Rule 11.03 application has failed, the balance of her applications filed on 27 April 2021 and 15 June 2021 (wherein she seeks various other orders in relation to financial and parenting matters) must necessarily be dismissed.
82I intend to dismiss the mother’s interim applications.
ORDERS
1. The mother’s Form 2 applications filed on 27 April 2021 and 15 June 2021 be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate
29 JULY 2021
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