Caprosi and Alton

[2020] FamCA 709

FAMILY COURT OF AUSTRALIA

CAPROSI & ALTON [2020] FamCA 709

FAMILY LAW – CHILDREN – Parenting – best interests of the child – where Father has ceased to participate in proceedings – where Father ceased to file material and has not filed a response – where Father’s lawyers filed Notice of Ceasing to Act – where Father did not appear in Court – where Father did not participate in the preparation of the Family Report – where special service by hand was effected on the Father – where matter is to proceed to an undefended hearing.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) Rule 11.02

APPLICANT: Ms Caprosi

RESPONDENT: Mr Alton

INDEPENDENT CHILDREN’S LAWYER: Ms L McGregor

FILE NUMBER: CAC 1241 of 2016

DATE DELIVERED: 27 August 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 27 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Evans Family Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid

Orders

1. This matter will proceed as an undefended hearing.

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 Alton & Caprosi 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: CAC 1241 of 2016

Ms Caprosi

Applicant

And

Mr Alton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter of Caprosi & Alton involves contested proceedings about what orders are in the best interests for the child of the parties, Y Alton, born in 2015.

2. I am advised that the proceedings have been on foot for approximately four years having commenced on 8 August 2016.  On 25 July 2019 the matter was listed for 9 December 2019 for the purpose of making orders for the updating of the Family Report and to give trial directions to prepare the matter for trial.  Both parties attended at that time and again were represented on 9 December 2019.  On 9 December 2019 the parties were directed to file and serve a single consolidated affidavit from themselves and each witness they intend to rely upon at the final hearing of the matter by 4 pm on 29 May 2020 and it was directed that Ms B would prepare an updated Family Report in the matter, with any interviews with the parties or assessment of the child to take place no earlier than 1 June 2020 and for the report to be available by the end of July 2020.  The matter was then adjourned to 4 pm on 10 August 2020 for the potential allocation of a trial date.

3. On 10 August 2020 the Mother was given permission to rely upon her trial affidavits, notwithstanding that they had not been filed in strict accordance with the filing deadline of the matter.  They were filed approximate to the date on which they were due to be filed.

4. The Father filed no material and did not appear on 10 August 2020.  Further, the Father did not participate in the preparation of the Family Report, failing to attend for interviews for that Family Report.  The Family Report has subsequently been prepared by Ms B without his involvement.

5. On 14 July 2020 the Father's then lawyers filed a Notice of Ceasing to Act.  Prior to this the last step taken by the Father in the proceedings was the filing of a document in relation to Court fees on 20 May 2019.  The Father has again not attended today.

6. On 10 August 2020 directions were made for the special service by means of service by hand of the Father of a suite of documents in relation to the proceedings, in the context that I had set the matter down for an undefended final trial of the matter to commence at 10 am on 27 August 2020.  The parties were directed to attend on that occasion, in person, unless otherwise excused.  Part of those orders was a direction to the Father that if he resisted the matter proceeding to undefended hearing then he was to immediately file a reply document setting out the orders that he seeks that the Court make. 

7. The Father did not do so.

8. The relevant affidavit of service of Ms C demonstrates the Father was served by hand on 13 August 2020.  On that day he was served with a copy of my orders of 10 August 2020, a copy of the Mother’s and her supporting witnesses’ affidavits, along with a copy of the Minute of Orders Sought by the Mother and a copy of the Family Report.  These matters clearly placed him on notice of the status of the matter proceeding to an undefended hearing and that if he did not wish it to do so then he was required to file a Response, which he has not done.

9. It may be taken from these suite of factors that the Father has ceased to take part in the proceedings.  Rule 11.02 indicates that if a party does not comply with these Rules, the Regulations or a procedural order, the Court may determine the case as if it were undefended.

10. In these circumstances where the Father has failed to comply with the direction for the preparation of the matter for trial, failed to file his affidavit material, failed to take part in the Family Report, failed to attend for the Court event to set the matter down for trial, failed to attend at the putative date for the undefended hearing and failed to file a Response in relation to the setting of the matter down to an undefended hearing, it may be taken that he has ceased to prosecute his case.  He is certainly non-compliant with Court directions in a substantive manner. 

11. Under those circumstances, the matter should proceed to an undefended hearing, noting that on an undefended hearing it will be incumbent upon the Mother to prove to my satisfaction those matters that she relies upon to sustain that the orders that she seeks are in Y’s best interests.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 August 2020

Associate: 

Date:  27 August 2020