AMARI & SIDKAR

[2019] FamCA 584

FAMILY COURT OF AUSTRALIA

AMARI & SIDKAR [2019] FamCA 584

FAMILY LAW – SECURITY FOR COSTS.

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Case to file further Affidavits – Application in a Case refused.

Family Law Rules 2004 (Cth) Rule 1.04

APPLICANT: Mr Amari

RESPONDENT: Ms Sidkar

FILE NUMBER: PAC 229 of 2019

DATE DELIVERED: 12 August 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Eggshell Skull

SOLICITOR FOR THE RESPONDENT: Sydney BD Lawyers

Orders

1. The Application in a Case to adduce further evidence is refused.

2. Within seven days of today's date the solicitors for the Father are to cause to be filed and served a copy of the written submissions previously filed but with each reference to material which is not in evidence given the dismissal of their Application in a Case being underlined.

3. The Mother's costs in this matter are reserved to the hearing of the security for costs application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Amari & Sidkar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC 229 of 2019

Mr Amari

Applicant

And

Ms Sidkar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Father seeks the leave of the Court to rely upon two further affidavits.  One of those affidavits is directed to corrections of statements made in the material relied upon which relate to the number of counselling sessions attended by the child.  While it is important to correct such information if it is incorrect, it is not a matter of consequence in the security for costs application. 

2. The second affidavit contains material that is referred to in a summary fashion in the affidavit in support which was filed on 30 July 2019.  I pause to note that the affidavit which is sought to be relied upon is, I am advised, 87 paragraphs long and no draft unfiled version has been provided to the solicitors for the Mother in these proceedings.  That is, while the solicitors for the Mother are on notice of the general subject matter that might be canvassed in that affidavit, they have not been provided with the draft to inform them in responding to the application that is made for leave to rely upon that affidavit.

3. The effect of the Father's application for security for costs is to potentially shut out the Mother from engaging in litigation.  Her present circumstances are that she resides in Country C and the Father resides with the child in Australia.  A number of interim matters were dealt with previously and a timetable was set down to deal with the security for costs application to cause the Mother to file a response and affidavit material and then with the agreement of the parties for the matter to be dealt with on written submissions in Chambers. 

4. The Mother has complied with her obligations under those orders to file a response and affidavit material.  The Father has filed his written submissions in accordance with the directions and the Mother is due to do so by the end of this week. 

5. I am told that the Father's written submissions contain reference to the affidavit material for which no leave has yet been given.  That application to adduce the further material came on 30 July 2019 which was the same day that the written submissions were filed.  It is unclear why the application was delayed until that time.  It is quite unclear why the Mother’s solicitors were not provided with the material to enable them to properly answer or deal with that application in a case.

6. The justification that is put forward to adduce the further material is threefold.  The first is that there is an alleged refusal on the part of the Mother to comply with consent orders relating to the execution of documents to maintain visas and passports for the child.  This is a disputed matter.  That is potentially a matter that could bear upon an argument in relation to security for costs. 

7. The second matter relates to a criticism of the manner in which the Mother’s solicitors have engaged in request for disclosure.  I cannot tell whether or not this is a matter likely to carry any weight given that I do not know the scope of what it is that they are supposed to have done or not done.

8. The third matter is a setting out of the Father's current financial circumstances.  This certainly could be an important matter in a security for costs application.  The justification that is put forward for the updating is that the Father's solicitor advises that the Father has subsequently received an invoice from his previous solicitors and an invoice from his current solicitors.  I am unable to accept that what is contained in these matters, had there been diligent enquiry made, particularly given that the information was within the current solicitor’s control as to the scope of the invoice that she would be issuing would have been unable to have been ascertained by the Father.

9. The main purpose of the Family Law Rules 2004 (Cth) is set out a Rule 1.04 and is as follows.

   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.

10. To grant the application now made by the Father would be to undermine the main purpose of the Rules in three ways.  It would necessitate a recasting of the filing timetable and for the Mother to prepare yet further material to answer the Father's security for costs application.  That would mean that the proceedings would not be conducted in a timely, or just, or cost-effective manner due to that piecemeal approach.  Accepting that the alleged non-compliance with the orders is a matter which has arisen after the filing of the Father's material it is not sufficient to justify a recasting of this timetable for an application which has the potential to shut the Mother out of the proceedings that is being dealt with as a preliminary issue and further delay or chaotic hearing of that matter due to the presentation of material in a chaotic fashion is not in the interests of justice and is not in accordance with the main purpose of the Rules. 

11. Accordingly, the application in a case to adduce further evidence is refused.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 August 2019.

Associate: 

Date:  14 August 2019