Allred & Allred (No 3)
[2023] FedCFamC1F 519
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allred & Allred (No 3) [2023] FedCFamC1F 519
File number(s): PAC 2506 of 2020 Judgment of: BERMAN J Date of judgment: 13 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to adjourn the trial – Where the father seeks to vacate the trial – Where the father failed to comply with trial direction orders – Where orders were made in 2022 pursuant to s 102NA(2) of the Family Law Act 1975 (Cth) – Where the father declined the application to the Scheme – Where the Court ordered that the trial proceed on an undefended basis – Where the application is dismissed and the trial proceed on an undefended basis – Where the Court makes orders for the father to cross examine the mother’s witnesses and make final submissions. Legislation: Family Law Act 1975 (Cth) s 102NA(2) Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 13 February 2023 Place: Adelaide via telephone Counsel for the Applicant: Mr Clutterbuck Solicitor for the Applicant: Alexander Rashidi Lawyers Pty Ltd Counsel for the Respondent: Mr Pickering Solicitor for the Respondent: Rafton Family Lawyers Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law ORDERS
PAC 2506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLRED
Applicant
AND: MS ALLRED
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
13 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding sealed 10 February 2023 is dismissed.
2.The matter proceed to trial on an undefended basis with the father to have the opportunity to cross-examine the mother’s witnesses and to make submissions.
3.The Further Amended Response filed 24 January 2023, be listed for hearing on 16 March 2023 (two days allowed).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Allred is the father and Ms Allred is the mother. The parties have been in high conflict in relation to the future parenting arrangements for the youngest two of their five children that are the subject of these proceedings, namely X born 2005, and Y born 2010 (collectively “the children”). The proceedings really focus on Y rather than X, taking into account that X is now 17 years of age.
The proceedings commenced in 2020. It has had a long, checkered and complex history. The purpose of today’s hearing, commencing by an Order of Hannam J on 23 February 2022, made an order under s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) relating to the Commonwealth Family Violence and Cross-examination of Parties Scheme. A notation to that Order provided that the father was to be informed as to the availability of the scheme and the means by which he may apply to Legal Aid New South Wales.
However, at the time that her Honour made the Order, the father indicated that he would decline the application to the Scheme on the basis that he had engaged a legal representative privately. The matter then was heard by Hannam J, then by Riethmuller J, and as a result of various aspects peculiar to the matter including the father’s application to recuse her Honour, the matter was transferred into my docket.
The matter came before me on 29 August 2022, and on that date, an Order was made listing all applications for final orders to be heard on 13 February 2022. The usual trial direction orders were made, but in particular, that the father file and serve his trial material by 4 pm on 28 October 2022.
It is now accepted that the father did not comply with the trial direction orders and the matter came back before me on 29 November 2022. The father, at that point, was self-represented. The mother was represented, as was the Independent Children's Lawyer (“ICL”). The Order of 29 November 2022 notes that all applications for final orders were to remain listed for hearing on 13 February 2023 and that the mother remained obliged to comply with a filing of trial material, noting that there had been no compliance by the father in respect of the filing of his material.
On that basis, the Court ordered the matter proceed to trial on an undefended basis, and the compliance hearing on 30 January 2023 was vacated. Of recent date, there has been some activity on the Court file in that the firm of Alexander Rashidi Lawyers filed a Notice of Address for Service on 2 February 2023, a second Notice of Address for Service was filed by Inner West Solicitors on 6 February 2023, and then finally, a third Notice of Address for Service was filed again by Alexander Rashidi Lawyers on 6 February 2023.
As part of that process, and consequent upon the filing of the third Notice of Address for Service, an Application in a Proceeding was filed on 10 February 2023, seeking the following Orders:
1. That the Application in a Proceeding be considered on an urgent basis;
2. That the hearing listed for 13 February 2023 be vacated
3. That the matter be listed for final hearing on a date to be fixed.
That application was supported by an affidavit of the father sworn on 9 February 2023.
I have heard submissions today from Mr Clutterbuck of counsel, who appears for the father, Mr Pickering of counsel, who appears for the mother, and Mr Ladopoulos of counsel who appears for the ICL. I have indicated that I propose to dismiss the father’s Application in a Proceeding, but that the matter not proceed today on an undefended basis, but rather, I give the father an opportunity to cross-examine the mother’s witnesses and to make submissions on 16 March 2023, with 17 March 2023 to be available if more time is required.
Because of the relative shortness of the adjournment and the need to confirm dates with counsel, I have indicated that I will deliver written reasons.
The other aspect that is relevant to be noted is that the single expert, Dr C, who has filed an affidavit of 10 March 2021 annexing his report, is not required to be called, and so his affidavit and report will be read into evidence.
It is likely that the cross-examination of the mother will be concluded in one day, but if more time is required, either because of cross-examination and/or because of submissions, then the second day is reserved.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 28 June 2023
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