Cripps & Aragon
[2023] FedCFamC2F 1253
•28 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cripps & Aragon [2023] FedCFamC2F 1253
File number: PAC 6751 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 28 August 2023 Catchwords: FAMILY LAW – Application for review of orders made by a Judicial Registrar - where family consultant appointed under Court orders – where mother filed an affidavit before the father’s interview – where father had not seen affidavit – where Registrar appointed new family consultant – where mother seeks discharge of Registrar’s orders – where the mother has not complied with rule 8.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) – where the mother’s conduct is not consistent with the overarching purpose – where parties must follow the Rules – application for review by the mother dismissed. Legislation: Family Law Act 1975 (Cth) ss 117, 117(2)(A).
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190.
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) sch 2.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.04(1), 1.04(2), 8.13, 14.3.
Cases cited: Cadenet & Behrendt (No. 2) [2021] FamCA 19
Goode v Goode (2006) 206 FLR 212
Padley & Padley [2020] FamCA 717
Division: Division 2 Family Law Date of hearing: 28 August 2023 Place: Melbourne Number of paragraphs: 31 Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Apex Legal Advocate for the Applicant: Mr Keleher Solicitor for the Applicant: Keleher Lawyers Advocate for the Independent Children's Lawyer: Mr Harb Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
PAC 6751 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CRIPPS
Applicant
AND: MS ARAGON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
28 AUGUST 2023
THE COURT ORDERS THAT:
1.The Application for Review filed 10 August 2023 be dismissed.
2.The Orders of 22 August 2023 be discharged.
3.Leave be granted to the Respondent rely on her affidavit filed 26 June 2023.
4.On or before 11 September 2023 at 4:00 pm, the Applicant file and serve any further affidavit he seeks to rely on.
5.The Respondent pay the Applicant’s costs of and incidental to the Hearing on 28 August 2023 and such costs are to be paid in accordance with the scale of costs under Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 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 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)
JUDGE BLAKE:
This is an application to review orders made by a Judicial Registrar of this Court on 3 August 2023. The application occurs in the context of parenting proceedings involving X, born in 2019 (‘the child’).
THE MATERIAL BEFORE THE COURT
The parties helpfully prepared a statement of agreed facts and issues in dispute. What follows is taken from that document:
AGREED FACTS:
1.The Applicant/Father (Father) in these proceedings was born in Australia [in] 1977 (46 years old).
2.The Respondent/Mother (Mother) in these proceedings was born in [Country C] [in] 1978 (45 years old).
3.The Mother arrived in Australia from [Country C] on a tourist visa in 2018.
4.In 2018 the parties commenced their relationship.
5.[In] 2018 the parties registered their relationship with NSW Births Deaths and Marriages.
6.The parties have one child from the relationship, [X] born [in] 2019. [X] is currently aged 3 years.
7.The parties have no other children from previous relationships.
8.On 1 August 2021 the parties separated and have lived separately and apart since that date.
9.On 31 December 2021 the Father commenced these parenting proceedings seeking, inter alia, injunctions on an interim and final basis preventing the Mother from travelling overseas with [X] until he reaches the age of 18 years.
10.On 22 February 2022 the Mother filed a Response seeking, inter alia, Orders on an interim and final basis enabling her to travel to [Country C] with X.
11.On 22 February 2022 the Mother filed an urgent Application in a Proceeding seeking Orders enabling her to travel to [Country C] with [X] to visit [X]’s terminally ill maternal grandmother (Mother’s Urgent Interim Application).
12.The Father opposed the orders sought in the Mother’s Urgent Interim Application.
13.The Mother’s Urgent Interim Application was heard on March 2022 before [a] Senior Judicial Registrar whereupon the Mother’s Urgent Interim Application was dismissed and an interim injunction preventing the Mother from travelling overseas with [X] was imposed for a period of two years (i.e until March 2024).
14.On 17 August 2022 a Child Impact Report was prepared by [Ms B], Court Child Expert (Child Impact Report).
15.Paragraph 27 of the Child Impact Report noted that the circumstances in which [X] can travel to [Country C] with the Mother (if at all) continued to be a matter requiring resolution.
16.On 5 September 2022 Orders were made pursuant to s 68L(2) of the Family Law Act 1975 (Cth), appointing an Independent Children’s Lawyer for [X] (ICL).
17.On 23 November 2022 interim parenting Orders were made with the consent of the parties and the ICL (Interim Parenting Orders).
18.On 12 December 2022 Orders were made pursuant to s 62G(2) of the Family Law Act 1975 (Cth), that the parties and [X] attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report and that the family report address:
a) any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
b) the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
c) the impact upon the child and upon his relationship with the mother if the Court made orders as sought by the father;
d) the impact upon the child and upon his relationship with the father if the Court made orders as sought by the mother;
e) any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
(Family Report Orders)
19.No orders were made in relation to the filing and service of updated affidavits in advance of the parties’ consultations with the Family Consultant.
20.As at the date of the Family Report Orders:
a) the Father had filed the following affidavits:
i.13 December 2021
ii.8 March 2023
b) the Mother had filed the following affidavits:
i.22 February 2022
ii.7 March 2022
iii.26 June 2022
iv.21 November 2022
21.On 30 May 2023 [Ms D], Regulation 7 Family Consultant informed the parties of their interviews by separate email.
22.Each party was not aware of the date of the other parties’ interview with [Ms D].
23.The Father arranged his interview to take place with [Ms D] on 26 June 2023.
24.On 25 June 2023 the Mother swore an Affidavit comprising 65 pages. On the morning of 26 June 2023 the Mother filed the Affidavit sworn on 25 June 2023 via the CCP (Mother’s June Affidavit).
25.The Mother alleges that she at 2.04pm on 26 June 2023 the Mother [sic] emailed [Ms D] advising her that the Mother’s solicitor had filed an update affidavit via the CCP
26.At 5.35pm on 26 June 2023 the Mother’s solicitor served the Mother’s June Affidavit on the Father’s solicitor and ICL by email.
27.The Mother’s interview with [Ms D] took place on 28 June 2023.
28.On 11 July 2023 the Father filed an Application in a Proceeding and supporting affidavit seeking the discharge of [Ms D] on the basis of procedural and a breach of rule 8.13.
29.On 12 July 2023 [Ms D]’s observations of [X] with each of the parties took place at the [Suburb E] Registry of the FCFCOA.
30.On 18 July 2023 the Father’s solicitor served the Application in a proceeding on the Mother’s Solicitor and the ICL.
31.On 3 August 2023 the Procedural Unfairness Application was heard before [a] Judicial Registrar whereupon Orders were made discharging the appointment of [Ms D], appointed under Regulation 7 as the Family Consultant and appointed pursuant to order 1 of the orders dated 12 December 2023. On the Application of the Mother and by consent of the Father and the ICL the Order was stayed on 23 August 2023 pending the hearing of the review.
ISSUES IN DISPUTE:
The Mother contends that the issues in dispute are
A. Did [Ms D] use information in the course of her interview with the Father on 26 June 2023 that caused the Father to suffer procedural unfairness.
B. If the answer to Issue “A” is yes, should the appointment of [Ms D], appointed under Regulation 7 as the Family Consultant and appointed pursuant to order 1 of the orders dated 12 December 2023, be discharged.
The Father contends that the issues in dispute are
A. Are irrelevant to the Court’s consideration [sic].
B.On 19 August 2023 the court allocated the file to a new Family Consultant and as such the current Application appears to be nugatory.
C.No explanation has been provided as to why there has been a disregard for the rules and procedural fairness.
D.The “procedure” adopted by the Mother was apparently undertaken to obtain an advantage in the court procedure.
A Court Book was also filed in the matter. The mother relies on her application for review filed 10 August 2023, her written outline of submissions, and her affidavit of 26 June 2023. The father relies on his affidavit of 11 July 2023.
POSITIONS OF THE PARTIES
The mother in substance contends that all of the orders of 3 August 2023 should be set aside. She says that the matter should proceed to a Compliance and Readiness Hearing (‘CRH’) on or around 26 September 2023, as originally envisaged in the orders made by the Court on 12 December 2022. The effect of this would be to keep the matter on its original hearing course. Critically, in the context of the present dispute, it would mean that the family report that was in the process of being prepared by Ms D would be completed, and would stand as the family report in the matter. The appointment of a new family consultant as contemplated by the orders of 3 August 2023 would not occur.
The mother submits that the application for review should be upheld because there has been no procedural unfairness to the father. The mother contends, among other things, that:
(a)the father has not deposed to the questions he was asked in the interview and the answers he gave, and there is therefore no or insufficient evidence on which the Court can make an informed judgment that the father has been treated unfairly;
(b)the father was asked questions by Ms D about the mother’s affidavit of 26 June 2023, and he therefore has not suffered any procedural unfairness;
(c)the key assertions made by the father about the risks of the mother, and the prospect that the child will be removed to Country C permanently were, in any event, available to Ms D;
(d)there is nothing in the mother’s affidavit that she could not have told Ms D during the interview she was to have;
(e)even if there has been some perceived or real unfairness suffered by the father, this is able to be cured. The family consultant will have time to read the parties trial affidavit’s, and will be available for cross-examination. In that circumstance any deficiency in procedural fairness can be cured; and
(f)any views Ms D expresses on the risk of the mother absconding to Country C is likely to be given minimal weight at the final hearing.
The mother also submitted that:
(a)the Court cannot make findings of fact at interim hearings, see Goode v Goode (2006) 206 FLR 212 at [68], and the father, by his position, is effectively asking the Court to make a finding of fact that he has been subject to procedural unfairness;
(b)it is not in the child’s best interest to put him through another round of observations and/or interviews; and
(c)the consequences of the orders made on 3 August 2023 will mean that the progress of this matter through the Courts is delayed.
In making these submissions, the mother emphasised that the question before the Court is whether Ms D should be discharged because of any procedural unfairness to the father, or because she might not bring an impartial mind to the issues before her, see Stringer & Nissen [2023] FedCFamC2F 61 at [45].
The father seeks that the orders made by the Judicial Registrar on 3 August 2023 continue to operate, and that a new family consultant be appointed consistent with those orders.
LEGAL PRINCIPLES
Applications for review are dealt with under Part 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘Rules’). The Court is required to conduct any review application as an original hearing.
In parenting proceedings the paramount principle applies, and the Court is to have regard to the best interests of the child as the paramount consideration.
The Court is also required to have regard to the overarching purpose of the civil practice and procedure provisions set out in section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘Act’) as follows:
190 Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a)the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Finally, it is relevant to note in this matter the content of the Rules and, in particular, two Rules:
(a)rule 8.13 of the Rules provides that a party may file an affidavit without leave of the Court only if a provision of the Rules, or an order of the Court allows the affidavit to be filed in that way; and
(b)rule 1.04, subrule (1) of the Rules, provides that the purpose of these Rules is to facilitate the just resolution of disputes according to law as quickly, inexpensively and as efficiently as possible. Subrule (2) provides that the parties must conduct family law proceedings in a manner consistent with the overarching purpose.
CONSIDERATION
This unfortunate situation has arisen because the mother and her solicitor have not complied with the Rules, specifically rule 8.13. The purpose of the Rules is set out in rule 1.04(1) explained above.
When the Rules are not followed, disputes ensue. That is what has occurred here. Had the Rules been followed, Ms D’s family report would be close to completion in the matter, and it would be on track to a CRH. Instead, one need only look at all the steps that have occurred in this case because the Rules were not followed. Those steps include:
(a)The father filing an application in a proceeding and an affidavit on around 11 July 2023;
(b)An argument before a Judicial Registrar and orders made on 3 August 2023;
(c)The mother filing the application for review on 10 August 2023;
(d)The mother filing an application in a proceeding and an affidavit from her solicitor on 17 August 2023;
(e)A further appearance before the Judicial Registrar on 22 August 2023 which resulted in the stay of the orders made on 3 August 2023; and
(f)Judicial time now being consumed conducting this review application.
All of these steps could have been avoided had the mother followed the Rules. Instead, each of the parties had to file further material and applications. Had the Rules been followed, the two further appearances before the Judicial Registrar on 3 August 2023, and 22 August 2023 would have been avoided, as would the appearance before me on 28 August 2023.
Quite frankly, the failure to follow the Rules has brought about a scandalous waste of time, the parties resources and the Court’s resources. The mother now asks the Court to sanction her breach of the Rules by reverting to a set of orders made in December 2022. As I say, all of this could have been avoided had the Rules been followed in the first place.
The mother’s answer to this is that as matters now stand, it would be more efficient for Ms D to provide the report. That ignores the following:
(a)it ignores the waste that has already occurred, and has been caused by the mother; and
(b)it ignores the message that such an outcome would send to other parties in the family law system.
For many years, the family law system has been criticised for its delays. The commencement of the Act was one means by which that issue sought to be addressed. The overarching purpose that the Court must have regard to is designed to facilitate the just resolution of disputes inexpensively, and according to law. It is not consistent with the overarching purpose for the Court to do what the mother urges. It would encourage other parties to breach the Rules. It would encourage parties to run mini trials, such as what I had to hear this morning, as to whether procedural unfairness has, or has not arisen because of a failure to follow procedural orders. That is a situation that should not be tolerated. Parties simply must follow the Rules which are designed to give effect to the overarching purpose, and in this case, had they been followed, they would have given effect to the overarching purpose.
OTHER MATTERS
Aside from what I have set out above, the mother sought to frame this case as one in which the father has not been denied procedural fairness or alternatively, if he has, it can be cured. In oral submissions, the mother’s representative took me through the content of the mother’s affidavit of 26 June 2023. It was pointed out to me, among other things, that the content of that information was simply updating information. It was said it was not controversial, and it could have been provided by the mother at the interview.
The following observations should be immediately made about that submission:
(a)The affidavit is comprehensive and comprises 154 paragraphs and 68 pages. There must at least be some doubt as to whether the mother could realistically have provided all of that information in the manner in which it was provided at the interview, in the same way in which it was provided in the affidavit;
(b)It may be that some of the information could have been provided in the interview. It is equally the case the mother could have sought leave of the Court to file the affidavit, in which case, no issue would have arisen; and
(c)The orders made for the family report were made in December 2022. The mother had six months to seek leave of the Court to file that affidavit, and she did not do so.
It is notable that at the time the father attended for his family report interview, he had not seen the affidavit. It is also apparent the affidavit of the mother had not been served on the father’s solicitors prior to his family report interview.
While the mother now seeks to make the argument that there is nothing in substance in the affidavit which could result in procedural unfairness to the father, it is notable that it is not the position she took initially. It is plain that around the time the affidavit was served, the mother’s solicitor was of the view that there was no bar to the filing of the affidavit. That is clearly not correct, nor is it correct that he could possibly have responded to the content of that affidavit in the session with the family report writer, as the mother’s representative suggested at the time.
The mother’s assertion that any prejudice to the father can be cured because he has an opportunity to cross-examine the family report writer at trial is, to some extent, correct. However, it fails to take account of two important matters. First, just as it might be assumed that the practice in this Court will ultimately result in the father having that opportunity, experience teaches that this matter may proceed in a different direction. It is not uncommon in this Court, following the receipt of a family report, for a proceeding to be referred to mediation. Sometimes, cases are sent to family therapy. In either situation, the family report has the potential to become a document of some influence. In those situations, the father has no opportunity to correct the record. Second, it is not consistent with the overarching purpose for the father to take up the Court’s time teasing out these sorts of issues in cross-examination. Efficient resolution of cases means that matters that can be dealt with by a family consultant, prior to taking up judicial time, should be dealt with at that time. Serious issues, including delays, adjournments, and a waste of judicial resources, and the parties’ resources, occur when cases run for longer than they should.
I note that in advancing her case, the mother relied on Padley & Padley [2020] FamCA 717, and Cadenet & Behrendt (No. 2) [2021] FamCA 19. Those cases are of limited assistance to the Court and I give them little weight. First, they turn on their own facts. Second, and more importantly, those cases occurred prior to the coming into effect of the Act. In neither of those cases was the Court required to have regard to the overarching purpose set out in section 190 of the Act.
I am conscious that the course taken by the Judicial Registrar will mean that the child may be exposed to interviews or observations for a second time. I place some significance on that, but ultimately, it is not a reason of itself that would cause me not to proceed down the path foreshadowed by the Judicial Registrar. This is not a case, at least at this stage, where it can be said that the child has been subjected to numerous interviews, such that his health and well-being will significantly suffer.
In short, there is force in the Independent Children’s Lawyers submission that the procedural issue was dealt with by the Judicial Registrar on 3 August 2023. Ms D has been discharged, and a new family consultant has been appointed. It makes little practical sense to unwind all of that now. Even if it could be unwound, there is no certainty that the matter would be ready for a CRH on 26 September 2023.
For all of the above reasons, the application for review will be dismissed. I note that the order of 3 August 2023 was stayed by the Judicial Registrar on 22 August 2023. It also seems appropriate, therefore, to make an order that discharges the order of 22 August 2023.
I will make further orders granting leave to the mother to rely on her affidavit filed 26 June 2023, and for the father to file any further affidavit within 14 days of 28 August 2023.
COSTS
At the conclusion of the hearing, the father brought an application for costs. The usual rule under section 117 of the Family Law Act1975 (Cth) (‘Family Law Act’) is each party bear their own costs. However, the Court has discretion to order costs if there are justifying circumstances for doing so. Whether there are justifying circumstances is to be determined having regard to section 117(2)(A) of the Family Law Act.
In this case, I am satisfied that there are justifying circumstances to make an order for costs, namely that the mother has been wholly unsuccessful in the application for review, and given that the whole issue arose because of the failure to follow the Rules. The conduct of the mother has led to where we are today. Mr Givney, Counsel for the father, seeks costs on an indemnity basis. I note, as I have indicated, that costs usually are borne by each party, and there are justifying circumstances needed to get an order for costs in this jurisdiction. Indemnity costs would be a further and higher bar, and I am not satisfied that indemnity costs should be made in this case.
An order for costs will issue in accordance with the scale of costs under schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 27 September 2023
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