Archer & Murray (No 3)
[2022] FedCFamC2F 1630
Federal Circuit and Family Court of Australia
(DIVISION 2)
Archer & Murray (No 3) [2022] FedCFamC2F 1630
File number(s): MLC 10226 of 2021 Judgment of: JUDGE JENKINS Date of judgment: 23 November 2022 Catchwords: FAMILY LAW – parenting – application for review – father failed to file any evidence – non-compliance with orders – where final orders were made at an interim hearing on an “undefended” basis by a Senior Judicial Registrar – father was in attendance – where the father is self-represented – application successful Legislation: Family Law Act 1975 (Cth) Cases cited: Morgan & Valverde [2022] FedCFamC1A 133
Re F: Litigants in Person Guidelines [2001] FamCA 348
Division: Division 2 Family Law Number of paragraphs: 27 Date of last submission/s: 21 November 2022 Date of hearing: 21 November 2022 Place: Adelaide Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms Segerius from Hargreaves Family Law ORDERS
MLC 10226 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MURRAY
Applicant
AND: MS ARCHER
Respondent
order made by:
JUDGE JENKINS
DATE OF ORDER:
23 NOVEMBER 2022
UPON NOTING that despite the father’s failure to file evidence, the matter should be listed for a final hearing and the father given an opportunity to cross‑examine subject to any section 102NA Orders and make submissions and FURTHER NOTING that in the event the father fails to appear, then the matter may then proceed on an undefended basis
THE COURT ORDERS THAT:
1.The Orders of Senior Judicial Registrar Conlan made on 15 September 2022 be dismissed.
2.The matter be referred to the National Assessment Team for allocation for a date for case management.
3.The orders of 11 July 2022 of her Honour Judge Taglieri remain in full force and effect, including the appointment of the Independent Children’s Lawyer.
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 Archer & Murray (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)
JUDGE JENKINS
These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.
This is a matter that comes before me as a result of the father’s application to review orders made by Senior Judicial Registrar Conlan on 15 September this year. It is a hearing de novo.
By way of background, these are parenting proceedings concerning X, born in 2006, aged 16 years, Y, born in 2007 aged 15 years and Z, born in 2010, aged 12 years.
The parents were in a relationship from around 1998 to October 2011.
Final parenting orders were made by consent on 13 December 2012. These orders provided for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, and for the father to spend time with the children on alternate weekends from Friday to Sunday, and each Tuesday from after school to the commencement of school on Wednesday, as well as school holidays and special occasions.
In or about March 2021, the mother suspended the father’s time. The mother’s evidence is that the father has chronic mental health and substance abuse issues which have escalated and become progressively more difficult to manage. It appears these concerns came to a head in March 2021, and the father has not spent time with the children since 29 March 2021 on an in‑person basis.
On 15 September 2021, the mother filed her application in these proceedings to set aside the final orders. Her application proposes final orders for the mother to have sole parental responsibility and providing for the children to live with her, and the father’s time to be suspended pending certain events occurring, those being his attendance upon either Dr C or Dr D for ongoing psychiatric treatment on at least ten occasions. Her application also includes installing and maintaining an interlock device in his car, and thereafter to undergo random drug tests, with those orders to be suspended in the event of a positive result from those tests. The mother seeks those orders be made today on a final basis. The father seeks a reinstatement of the previous final orders.
The mother’s case is that despite this being what she says is the tenth Court hearing, the father has not filed any affidavit material in this matter or any evidence and has failed to, repeatedly, comply with orders to do so, as well as orders to provide a hair follicle test and to file a report from a psychiatrist.
It does appear from a look at the procedural history that the father has been given repeated opportunities to file his documents in this matter. I note, on 18 October 2021, he had not filed material, but it would appear from the evidence that he was unaware of the proceedings and had not been served with documents prior to that time.
On 3 November 2021, although it is unclear whether he had been served, the father appeared on that occasion, and an order was made for him to file and serve his material within 42 days.
On 1 March 2022, the father again appeared. He had not filed documents pursuant to the orders of 3 November 2021, and Senior Judicial Registrar Glass, as he then was, made final parenting orders.
The father filed an Application for Review on 25 March 2022, and on 4 May 2022, he again appeared in Court. There was a second order for the father to file material within 14 days.
On 31 May 2022, there was an ‘In Chambers’ order made and the father was given an extension to file his documents until 2 June 2022. The father did, in fact, file a response on 15 June 2022, but no accompanying affidavit.
On 16 June 2022, there was an interim defended hearing with respect to the review, and on 11 July 2022, the orders made by Senior Judicial Registrar Glass, as he then was, were discharged, and Judge Taglieri made a fourth order for the father to file and serve his responding material by 12 August 2022, as well as orders for a hair follicle test and to file and serve a letter on affidavit from his treating psychiatrist.
On 18 July 2022, there was a further hearing which related to suppression orders sought by the Court on its own motion.
On 31 August 2022, the matter came before Judicial Registrar Piekarski. Despite Judge Taglieri saying in her judgment she was giving the father one further opportunity to file, it was apparent on 31 August 2022 that he had not filed material, and he was given yet another chance to file by 4.00 pm on 13 September 2022, as well as another order for hair follicle testing. There was also an order made that in the event the respondent fails to comply with those orders or to attend Court on the next occasion that the applicant proposes to seek final orders on an undefended basis and/or in the absence of the respondent.
The matter therefore came before Senior Judicial Registrar Conlan on 15 September 2022, and she made a second set of final orders. The father filed a second Application for Review on 6 October 2022 of those orders, and that is the matter that came before me this week.
However, I must now consider the competing applications afresh. The mother’s position is that the father has not filed any evidence, has not complied with orders, and she says the Court should have no faith that he will, in fact, either file evidence, undergo a hair follicle test, or file any meaningful evidence from a psychiatrist. Indeed, when I asked him directly, the father was clear he would not be undergoing a hair follicle test. I need not go into his reasons at this point, but I am satisfied that this was his position. In relation to the psychiatrist report, he did seek to rely on a brief letter which was dated 21 March 2022. I understand it was forwarded to Judge Taglieri in July 2022, but in any event, it is not on affidavit.
Nonetheless, whilst these are certainly matters which go to the best interests of the children, the issue of the hair follicle testing and failure to file appropriate psychiatric evidence are not matters which, in my view, justify proceeding on an undefended basis. They ultimately may be determinative of final orders at a Trial, but are not matters that I take into consideration for the purposes of the decision I am making today.
Midway through the hearing, I referred the mother’s solicitor and the father to the case of Morgan & Valverde [2022] FedCFamC1A 133 (“Morgan & Valverde”). The matter was stood down for the parties to consider that case.
The mother’s solicitor then sought to distinguish this case from the facts before me. It was argued that in Morgan & Valverde the Court told the father he could not cross‑examine whilst in this matter the father had not asked to cross‑examine and had not been told he could not do so. However, there are various problems with these submissions. Firstly, the matter was listed for an interim hearing, at which the parties would not ordinarily expect or even be given the chance to cross‑examine the other party. In fact, given there was an indication that it was going to be heard on an undefended basis, the father may have had the view that he would not in any event be given that opportunity.
Nonetheless, the father is self‑represented and he may not understand the process, and pursuant to Re F: Litigants in Person Guidelines [2001] FamCA 348, the Court is obliged to explain that process to self‑represented litigants. Accordingly, I asked the father whether he would desire to cross‑examine witnesses in this case, and it was evident that he did, and, in fact, he had given some thought to those witnesses and was able to articulate, at least at that stage, who he would wish to examine. I have also read the reasons of Judge Taglieri from the interim hearing, and I concur with her observations that this is not a matter in which the father has not participated at all. He attended on the first hearing date that he was aware of, he participated in the Child Impact Report and he filed a response.
Whilst on the face of it there have been numerous orders in this matter and a myriad of Court hearings, it is evident that on the first occasion, the father had not been served. In addition, there have been two hearings that dealt with the first review, which ultimately set aside the orders of Senior Judicial Registrar Glass, and there was one hearing on the Court’s own motion to deal with a suppression order.
However most importantly, it is not in dispute the father has significant mental health issues which may have and continue to impact on his ability to file evidence in this matter.
Nonetheless, there must be an end point, and the father may never file any evidence. However, pursuant to Morgan & Valverde, he is still entitled to procedural fairness, and this means, before final orders are made, he should be given an opportunity to cross‑examine witnesses and make submissions, even if he has not filed any evidence. The minute that final orders are made at an interim hearing, it becomes a final hearing. If he fails to attend at a final hearing, that is a different thing. The matter could proceed undefended in his absence. But in this matter, he has attended.
For finality, the mother’s solicitor made an oral application seeking the father be restrained from filing any further applications. However, given the orders I have made in this matter and the fact that the father has filed two Applications for Review, which have both been successful, that oral application must fail.
For these reasons, I make the orders as set out at the beginning of this judgment.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Jenkins. Associate:
Dated: 30 November 2022
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