Andic & Bilici
[2023] FedCFamC1F 757
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Andic & Bilici [2023] FedCFamC1F 757
File number(s): SYC 5103 of 2020 Judgment of: KARI J Date of judgment: 23 August 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father is a self-represented litigant – Where the father has sought an adjournment on three occasions to seek legal advice – Where the court is concerned that the father has not been prosecuting his case with due diligence – Whether the matter is being unnecessarily delayed – Where the father is in default of orders – Where the father’s Response to Final Orders is struck out – Matter to proceed to final hearing on an undefended basis Legislation: Family Law Act 1975 (Cth) s 102NA,
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.10, 10.27.
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 23 August 2023 Place: Sydney Solicitor for the Applicant: Phillip A Wilkins & Associates Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Blumberg Family Law ORDERS
SYC 5103 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANDIC
Applicant
AND: MR BILICI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
23 AUGUST 2023
THE COURT ORDERS:
1.That the oral application of the Father made today to adjourn the proceedings to enable him to obtain legal advice and comply with the orders of 29 June 2023 is dismissed.
2.That the Response for Final Orders filed by the Father on 17 August 2020 be dismissed.
3.That pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the provisions of s 102NA(2) shall apply to any final hearing in these proceedings.
4.That the proceedings be listed for a final hearing on an undefended basis on 11 December 2023 at 10.00am with the court to advise closer to the hearing date whether the hearing is to occur in person or by Microsoft Teams.
5.That no later than 4.00pm on 20 October 2023 the Mother do file and serve any Amended Application for Final Orders and one consolidated Trial Affidavit.
6.That the Independent Children's Lawyer make arrangements for the expert family report writer, Dr B to be available to give evidence at 2.15pm on 11 December 2023.
7.That no later than 4.00pm on 6 December 2023 each the Mother and the Independent Children's Lawyer do file and serve a Case Outline Document, with such Case Outline Document to include the following (divided under headings):
(a)Those documents to be relied upon;
(b)The specific Orders sought (if different to those set out in the Application/Response);
(c)A short chronology of significant events;
(d)A summary of the issues in dispute;
(e)A concise summary of argument (with specific reference to any statutory considerations);
(f)A list of any relevant authorities, together with submissions as to their relevance; and
(g)A list of objections to evidence upon which rulings are required.
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 the pseudonym Andic & Bilici has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
The matter comes before me today in relation to the parenting arrangements for the child, X, born in 2019.
The issue, for today’s purposes, is whether or not the matter should be dealt with in a way which would see the father’s Response to the Application for Final Orders struck out, and the matter either finalised today, in terms of a draft minute of order prepared by the Independent Children’s Lawyer, or alternatively, adjourned and listed for an undefended final hearing – undefended in the sense that the father would not have any formal application before the court, but he would have the ability to cross-examine any witnesses that were called in the proceedings.
For the father’s part, he opposes the court taking either course. He asks the court to grant him an indulgence, and to have the matter adjourned, for an undefined period of time, in order for him to obtain legal advice.
BACKGROUND
To understand how the proceedings have come to this point, a little needs to be understood about the proceedings, generally.
The proceedings are parenting proceedings that were commenced by the mother in July 2020. They were commenced in circumstances where the mother sought a recovery order, and indeed, such an order was made on 30 July 2020. In addition an order was made that the child live with the mother.
The proceedings ultimately proceeded to a further hearing on 24 August 2020, at which time the parties reached an agreement that the child would spend supervised time with the father each Wednesday and Saturday, with such time supervised by the paternal grandmother.
The orders made in July and August of 2020, have prevailed until the present day, save and except that I am advised today that the time-spending arrangement is on a Saturday and a Sunday, rather than a Wednesday and a Saturday. In any event, time has continued, and that time continues to be supervised.
Since the commencement of the proceedings and those initial orders that were made, the matter has progressed in the usual course, in the sense that a family report has been prepared in the proceedings, and the matter has otherwise been channelled towards a final hearing.
The matter commenced its life in Division 2, or the Federal Circuit Court, as it was then known. It was ultimately transferred to Division 1 of the Federal Circuit and Family Court of Australia, on16 June 2022. The matter made its way into my docket some time in the latter half of the 2022/early 2023. On 19 April 2023, I made orders in chambers, listing the matter to a callover on 28 April 2023. I made those orders because the matter had been allocated to my docket, and I considered it appropriate to call the matter on to get a general update in the proceedings, as it had not been before the court whatsoever for nearing a year, but also, so that I could get some understanding of the issues in the matter, and begin progressing the matter towards a trial date.
The callover proceeded on 28 April 2023. However, the day prior to the callover, the father’s solicitor – he was then represented – a Mr C, filed a Notice of Intention to Withdraw as Lawyer for Mr Bilici. Mr C, to his credit, appeared at the hearing, despite having filed that notice. I suspect he appeared because the time period of seven days had not elapsed as required by rule 3.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’). At the hearing on 28 April 2023, the matter was adjourned to a mention and case management hearing on 1 May 2023.
On 1 May 2023, Mr C again appeared on behalf of the father, but, additionally, the father appeared at the hearing (the hearing being conducted by Microsoft Teams). On that occasion, the court was advised that the father was in Country D, and that he wished to obtain alternate legal representation. When making orders that day, I made notations to that effect. I also had a discussion with the father, in particular, at that hearing, as recorded in the notations to the orders, that the father’s position was unclear – the word I used was “opaque”, and that he would benefit from legal advice. I also made orders requesting the father’s solicitors to liaise with the Independent Children’s Lawyer during the period of the adjournment, and that at the adjourned hearing, any new solicitors who were instructed by the father be in a position to provide meaningful submissions as to the progress of the matter and the father’s position. I adjourned the matter to 29 June 2023.
The hearing on 29 June 2023 proceeded. The day before the hearing – namely, 28 June 2023, Mr C filed a Notice of Withdrawal and he did not appear at the hearing. The father did appear at that hearing on his own behalf. At the hearing, I again had some very serious discussions with the father about his engagement in the proceedings, whether he was prosecuting his case with due diligence, and my concerns that the matter was being unnecessarily dragged out and delayed, in those circumstances. Again, the notations I made to the orders that day reflect those matters. Importantly, I made a notation, having raised those concerns with the father, that if he did not comply with the orders that I was going to make that day, then the court would likely strike out his Response and list the matter to proceed on an undefended basis. I made it plain to the father that if that was to occur, then he would have the ability to cross-examine any witnesses called in the proceedings. Again, the notations to the orders recorded these matters.
Having made those notations to the orders, I then proceeded to make some orders. Those orders required the father to do three things: firstly, to file a Notice of Address for Service by 3 July 2023, secondly and thirdly, to file two documents by 21 July 2023, the first being an Amended Response for Final Orders and the second being an updated affidavit detailing, among other things, his present circumstances, his recent travel, his living arrangements and any other evidence to support the orders he now seeks. The matter was adjourned to 2 August 2023 to give the father the opportunity to attend to all of those matters.
To the father’s credit, he filed a Notice of Address for Service on 29 June 2023.
The hearing on 2 August 2023 did not ultimately proceed in circumstances where I was sick and unable to hear the matter. The matter was administratively adjourned to today’s date being 23 August 2023. The effect of the hearing not proceeding as planned on 2 August 2023 has been that the father has had additional time to comply with the orders made on 29 June 2023, in particular, paragraph 2 of those orders. Sadly, and for reasons which are not entirely clear, the father has again not complied with orders of the court. In particular, he has not filed an Amended Response, and he has not filed the affidavit as was directed.
TODAY’S HEARING
It is against that background that I am asked now by both the Independent Children’s Lawyer and the mother to either finalise the proceedings or to list the matter to proceed to final hearing on an undefended basis.
The father asks the court to adjourn the proceedings to allow him to obtain legal advice and representation.
The matter came before me in my list earlier today, and I ultimately stood the matter down until this afternoon. In adjourning the matter until later in the day, I drew to the attention of the father (who appears in person today) rule 10.27 of the Rules, being the orders the court is able to make if a party is in default.
With reference to that rule that I am being asked to finalise the proceedings today. The father opposes me doing so. He says that there is further evidence that the court would benefit from understanding before progressing to finalising the proceedings. The difficulty, however, as I pointed out to the father during the course of his submissions, is that very little at his end has happened in the proceedings since at least April or early May 2023 despite attempts made by the court to progress the matter.
Indeed, from 1 May 2023, I have been told by the father repeatedly at every hearing that he wished to obtain legal advice and that he would engage in the proceedings. It is that reason that the proceedings have been continually adjourned to afford the father that opportunity. The proceedings were adjourned from a hearing in May 2023 to the hearing in June 2023, and then in June 2023 they were adjourned to the hearing on 2 August 2023. Yet, here we are now on 23 August 2023, and the court is in no clearer position today than it was back in April 2023 when the matter was first called on before me, as to what the position of the father is in these proceedings. I know, at least, that the father does not agree the final orders that have been proposed by the Independent Children’s Lawyer today and which are largely supported at the mother’s end. I do not otherwise know exactly what orders the father is now seeking because he has not complied with the orders to file an Amended Response for Final Orders.
The father makes submissions to the court that he feels it is “pointless” putting anything to the court as the court will do what it wants regardless of his views. The father should be disabused from that thought process. As I have just highlighted, these proceedings have been adjourned since May 2023 to enable the father to get advice and to engage properly in this litigation. Indeed, on 29 June 2023, he could have been left with no doubt as to what might occur at today’s hearing if, indeed, he did not comply with the orders of the court.
The father indicates that he has made several attempts to obtain legal representation and that he is hoping to now engage legal representation. However in making that submission, the father is unable to advise the court how long an adjournment he seeks and whether he has, in fact, engaged lawyers or not.
The reality, however, is that regardless of whether the father engages lawyers or not, there were orders made by the court which required his compliance whether he was represented or unrepresented, and he has failed to comply with those orders.
Orders of the court are not optional. This court is here to make orders that are in a child’s best interests. The continuation of proceedings when a parent refuses to meaningfully engage, refuses to comply with orders of the court and/or prosecute their case with due diligence cannot ever be seen to be in a child’s best interests.
It is against that background that I refuse the father’s application for an adjournment.
I am now left to consider in which way I am to proceed with the matter today – whether I am to proceed to finalise the matter as promoted by the Independent Children’s Lawyer or whether I am to list the matter for a final hearing on an undefended basis but with the ability for the father to cross-examine any witnesses.
Having refused the father’s adjournment application, I note that I invited further submissions from the father as to which of those options he asks the court to entertain. The father preferred the listing of the matter on an undefended basis rather than a finalisation of the proceedings today.
Having heard those further submissions, I now have before me an oral application made at the mother's end, that the provisions of section 102NA(2) of the Family Law Act 1975 (Cth) (‘the Act’) apply to these proceedings, pursuant to section 102NA(1)(c)(iv) of the Act. That is, that the court exercise discretion to apply the provisions which act as a ban against cross‑examination by the father personally in circumstances where the father is self-represented.
There was previously an apprehended violence order in the matter, naming the mother was a protected person and the father as the defendant. I am advised that the Apprehended Violence Order has expired and is no longer in force. The father tells me that the Apprehended Violence Order expired some two years ago.
Given the timing today and that I am now sitting well into the next matter that is listed before me, I propose to brief in relation to this topic. Understanding what I do about these proceedings, that there had been a final Apprehended Violence Order previously, and the contents of the Family Report, it is my view that it is appropriate to apply the provisions in section 102NA(2) of the Act to these proceedings, if indeed the matter is to proceed to an undefended final hearing.
On the topic of the final hearing, it is my view, with some apprehension, that I am going to proceed to list the matter on an undefended basis and not finalise the matter today.
I do so in circumstances where, to be fair, that is the course that I foreshadowed to the father on the last occasion, if he did not comply with the orders. Having foreshadowed that path earlier, in my view it would not now be appropriate to take a different path. Having said that, I am mindful that rule 10.27 of the Rules does allow me to finalise the proceedings and give judgment or make any other order against the respondent if he defaults in complying with orders of the court. It would have been open to me to finalise the proceedings today, but in circumstances where I had not foreshadowed that as a possibility to the father, and where he is self-represented, I do not consider it appropriate that I finalise the proceedings today.
For all of those reasons, I now make the following orders.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 1 September 2023
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