Ariti & Booras

[2021] FamCA 654

FAMILY COURT OF AUSTRALIA

Ariti & Booras [2021] FamCA 654

File number(s):	MLC 3160 of 2018
Judgment of:	MACMILLAN J
Date of judgment:	13 May 2021
Catchwords:	FAMILY LAW – Where orders made pursuant to s 102NA – where the applicant has rejected representation appointed for her and is self-represented – where the applicant failed to comply with orders for the filing of trial material – where the final hearing in May 2021 is vacated – where the matter is relisted for a final hearing – where orders made for the applicant to file her trial affidavit and to facilitate the valuation of the properties – where orders are made for the respondent to file an application seeking leave to proceed undefended in the event that the applicant does not comply.
Legislation:	Family Law Act 1975 (Cth) s 102NA
Number of paragraphs:	8
Date Delivered	13 May 2021
Date of hearing:	13 May 2021
Place:	Melbourne
The Applicant:	In Person
Solicitor for the Respondent:	Schetzer Papaleo Family Lawyers
Solicitor for the Independent Children's Lawyer:	Altavilla Family Law

ORDERS

MLC 3160 of 2018

BETWEEN:

MS ARITIS

Applicant

AND:

MR BOORAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	13 MAY 2021

THE COURT ORDERS THAT:

1.The final hearing commencing 17 May 2021 be vacated.

2.All extant applications for final orders be adjourned for hearing before Justice Macmillan at 10.00 am on 30 August 2021 as a 4 day matter.

3.The time for the Applicant file and serve an amended application setting out with precision the orders sought, the affidavits of evidence in chief and a financial statement pursuant to paragraph 5 of the orders made 17 December 2020 be extended to 4.00 pm on 11 June 2021.

4.The Applicant forthwith do all acts and things necessary to facilitate the valuation of the property at F Street, Suburb G by H Pty Ltd including but not limited to paying her half share of the costs of the said valuation.

5.In the event the Applicant does not comply with paragraphs 3 or 4 of these orders by 4.00 pm on 11 June 2021, the respondent have liberty to forthwith apply to have the matter proceed on an undefended basis.

6.The Independent Children’s Lawyer be permitted to provide copies of the orders made 15 January 2021 to Dr B, Dr C and J School.

7.The payment of any costs thrown away as a result of the preparation of a kerbside valuation of the property at F Street, Suburb G together with the respondent’s costs of this day fixed in the sum of $1,500.00 be reserved to a date to be fixed for determination.

8.The practitioners and/or the parties in the event that they are not legally represented file electronically to ... and serve upon all other parties by 4.00 pm on 23 August 2021 the following:

a)a concise set of orders to be sought if different from those already filed;

b)a list of the applications and affidavits filed pursuant to these orders to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

c)a list of the parties’ respective legal and equitable interests in property and liabilities;

d)a list of objections to evidence upon which rulings are required, if any; and

e)a bullet-point summary of argument in relation to the legal and factual issues in dispute.

Court Book

9.By 4.00 pm on 23 August 2021 each of the parties and the Independent Children’s Lawyer upload the documents sought to be relied upon at trial into the eBrief Ready shared folder for the purposes of the preparation of a Court Book. The shared eBrief Ready folder in the matter must include the following:

(i)Case Outlines;

(ii)Any applications/responses, affidavits, financial statements, expert reports and orders; and 

(iii)Copies of any documents sought to be tendered in evidence.

10.IT IS DIRECTED that upon receipt of the parties and the Independent Children’s Lawyer documents via the eBrief Ready shared folder a Court Book will be prepared in the matter and all parties are to refer to the pagination in the Court Book at trial.

11.All extant application be otherwise listed for telephone mention before Justice Macmillan at 10.00 am on 26 May 2021

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 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).

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 Ariti & Booras has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

MACMILLAN J

1. This matter was set down for hearing by orders made 17 December 2020, it included orders requiring the applicant to file and serve the trial material upon which she sought to rely, by 19 March 2021. She was, at the time that those orders were made, represented by senior counsel. On 15 April 2021, the solicitors, then acting on behalf of the applicant, filed a notice of ceasing to act. The applicant did not file her trial material as she was required to do by the 19^th of March. She did not follow the usual process to extend or alter at the time for filing that material, or altering her obligations pursuant to those orders. The respondent seeks an order that the applicant be required to file her trial Affidavit within 30 days.

2. The matter came on for hearing before me on 4 May 2021, and on that date issues were raised because of the order made on 17 December 2020 for the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) to apply in these proceedings. The applicant did attend the offices of Legal Aid that day as she was encouraged to do. The Court had as it is required to do sent the referral to the Family Violence and Cross-Examination Scheme to Legal Aid and it appears that although a solicitor was appointed to act on behalf of the applicant she wished to pursue the appointment of some other solicitor on the panel.

3. That has not occurred and the applicant is representing herself today and has told me, when I asked about who she is going to have act on her behalf, that she had made enquiries of a couple of firms and is waiting to hear back from them. It is her submission that I should not make an order that she file her material within 30 days, because she is not represented. However, it seems to me it is in her hands. She has already had an offer, or an opportunity, to be represented, and has rejected the solicitor appointed to act on her behalf. 

4. The applicant submits that it is a question of finding someone who will be available on 30 August 2020, when the matter is again listed for a trial. However, it seems to me that that is not an issue in this case. The issue is whether or not solicitors can be engaged and prepare material on her behalf. And, it would seem surprising to me if her previous solicitors had not already done some of the groundwork in these proceedings as they have been on foot for some time, and often the material that’s in affidavits is material taken from previous affidavits.

5. In all the circumstances, I am satisfied that 30 days is sufficient time for the applicant to file her material, mindful of the fact that the matter was set down for trial late last year, and this material should have been filed in March this year. The Court is required to balance the positions of both parties and the respondent is entitled to have his case heard and the only way that can occur and the way that can happen is for the applicant to file her material within 30 days, and the trial proceed on 30 August 2021. 

6. In the alternative I propose to grant leave to the respondent to file an application seeking leave to proceed undefended if the applicant does not file her trial material. There are various options the Court can adopt in relation to how that occurs, one possibility being that the case proceeds on the evidence of the respondent without any input from the applicant.

7. I am also being urged by the Independent Children's Lawyer to bring the matter to a conclusion for the sake of the children, and I am told that, from her interviews with the children, the children want this case to be over. 

8. On that basis I propose to accede to the application that the applicant file her material within 30 days.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Macmillan delivered on 13 May 2021.

Associate:

Dated:       13 May 2021