FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deleon & Deleon [2023] FedCFamC2F 1366
File number(s): ADC 5880 of 2020 Judgment of: JUDGE DICKSON Date of judgment: 27 October 2023 Catchwords: FAMILY LAW – APPLICATION TO STAY PROCEEDINGS – Application to stay parenting proceedings pending compliance with a final order for property settlement – Hadkinson’s order – Consideration of whether or not current proceedings are within the “same cause” – Application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68.
Family Law Act 1975 (Cth) ss 4, 60A, 69F, 102NA.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sch 3.
Cases cited: Bettison & Bettison [1965] 1 ALL ER 102,
Dautry & Wemple [2018] FamCAFC 237,
De Gafforj (Appeal: Hadkinson’s Order) [2018] EWCA Civ 2070,
Fahmi& Fahmi [1995] FamCAFC 106,
Hadkinson v Hadkinson [1952] 2 All ER 567,
Jess & Jess (No 3) [2023] FedCFamC1A 2,
Kachmarik & Gebel [2019] FLC 93-927,
Moorcroft & Moorcroft [2018] FamCAFC 253,
Short & Short (1973) 7 SASR 1,
Watson & Watson [2013] FamCAFC 25.
Division: Division 2 Family Law Number of paragraphs: 65 Date of hearing: 18 October 2023 Place: Adelaide Counsel for the Applicant: Ms Betro Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd Solicitor for the Respondent: Starkie Family Law Counsel for the Independent Children's Lawyer: Mr Dillon Solicitor for the Independent Children's Lawyer: Comley Legal ORDERS
ADC 2880 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DELEON
Applicant
AND: MR DELEON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
27 OCTOBER 2023
UPON NOTING THAT:
A.The parties agree that the Family Assessment Report Writer, Ms B, Clinical Psychologist is not required for the purposes of cross-examination at Trial and that her psychological report dated 21 October 2022 (amended 27 October 2022) can be admitted into evidence without need for the said Ms B to be called for cross‑examination).
THE COURT ORDERS THAT:
1.The mother’s Application in a Proceeding filed 18 August 2023 and the father’s Response to Application in a Proceeding filed 18 September 2023 (‘the said Applications’) be dismissed.
2.Each party and the Independent Children’s Lawyer do bear their own costs of and incidental to the said Applications.
3.The parties competing Applications for Final Orders be listed for Trial before Judge Dickson on 29 February 2024 at 10:00am NOTING two (2) days allowed, such Trial to take place in open Court on a face-to-face basis in accordance with the Court’s protocols.
4.No later than twenty-eight (28) days prior to the Trial date, the Applicant pay the cost of the Setting down fee and any Daily Hearing fee as required, or obtain a Remission Certificate in respect thereof.
5.The mother do file and serve any updating Trial Affidavit that she intends to rely on at Trial, such Affidavit to be limited to a length of no greater than ten pages, to be filed…
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CaseChat Overview and Summary
The court considered the nature of the proceedings and the purpose of Hadkinson's order, which is to avoid the unnecessary continuation of litigation where compliance with a final order could resolve the matter. The court examined whether the parenting proceedings were indeed within the same cause as the property settlement order, weighing the principle of finality in litigation against the need to ensure compliance with court orders. Ultimately, the court determined that the parenting proceedings were not within the same cause as the property settlement order, and therefore dismissed the application to stay.
The court ordered that the mother's application to stay the parenting proceedings be dismissed and that each party bear their own costs of the proceedings. The court also set out a detailed schedule for the upcoming trial of the final parenting orders, including the exchange of affidavits, case outline documents, and lists of issues in dispute. The trial was scheduled to take place on 29 February 2024, with a mention and trial management hearing set for 21 February 2024. This detailed order ensures that the proceedings move forward efficiently, with clear directives for the parties regarding the preparation and presentation of their cases.
Orders
Orders of the court
ADC 2880 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS DELEON
Applicant
AND:
MR DELEON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
27 OCTOBER 2023
UPON NOTING THAT:
A. The parties agree that the Family Assessment Report Writer, Ms B, Clinical Psychologist is not required for the purposes of cross-examination at Trial and that her psychological report dated 21 October 2022 (amended 27 October 2022) can be admitted into evidence without need for the said Ms B to be called for cross‑examination).
THE COURT ORDERS THAT:
1. The mother’s Application in a Proceeding filed 18 August 2023 and the father’s Response to Application in a Proceeding filed 18 September 2023 (‘the said Applications’) be dismissed.
2. Each party and the Independent Children’s Lawyer do bear their own costs of and incidental to the said Applications.
3. The parties competing Applications for Final Orders be listed for Trial before Judge Dickson on 29 February 2024 at 10:00am NOTING two (2) days allowed, such Trial to take place in open Court on a face-to-face basis in accordance with the Court’s protocols.
4. No later than twenty-eight (28) days prior to the Trial date, the Applicant pay the cost of the Setting down fee and any Daily Hearing fee as required, or obtain a Remission Certificate in respect thereof.
5. The mother do file and serve any updating Trial Affidavit that she intends to rely on at Trial, such Affidavit to be limited to a length of no greater than ten pages, to be filed and served by 18 January 2024.
6. The father file and serve any updating Trial Affidavit that he intends to rely on at Trial, such Affidavit to be limited to a length no greater than 10 pages, to be filed and served by 1 February 2024.
7. No later than seven (7) days prior to the Trial date Counsel for each party shall exchange and provide to the Associate to Judge Dickson by email to …@... an Amended 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 between the parties and any findings required at Trial;
(e) A concise summary of argument (with specific reference to any statutory considerations); and
(f) A list of any relevant authorities, together with submissions as to their relevance.
8. That no less than seven (7) days prior to the Trial date, the parties and the Independent Children’s Lawyer do exchange and provide to the Associate to Judge Dickson by email to …@... a ‘List of Issues in Dispute’ document, with such document to include:
(a) A summary of the factual issues in dispute between the parties that require determination at Trial;
(b) A summary of the legal issues in dispute between the parties that require determination at Trial, including any Lists of Authority; and
(c) Any findings that the parties seek as to the credit of the parties or any witnesses to be called at Trial.
9. No later than seven (7) days prior to the Trial date the parties do file and serve a Costs Notice pursuant to rule 12.06 of the Federal Circuit and Family Courts of Australia Rules (Family Law) 2021 (Cth).
10. The proceedings be listed for mention and Trial management on 21 February 2024 at 9:30am, such hearing to take place in open Court on a face-to-face basis in accordance with the Court’s protocols.
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.
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