Deleon & Deleon
[2023] FedCFamC2F 1366
•27 October 2023
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 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.
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
JUDGE DICKSON:
INTRODUCTION
Mr Deleon (‘the father’) and Ms Deleon (‘the mother’) are the parents of two children, namely X born in 2010 and Y born in 2011 (‘the children’).
Since December 2020, the parties have been involved in litigation following the breakdown of their marriage.
On 24 February 2022, the Court made orders by consent resolving the parties’ property settlement proceedings (‘the final property orders’).
On 19 April 2023, the Court made orders by consent resolving certain aspects of the parties’ parenting dispute specifically related to parental responsibility, where the children will live, injunctions and time with the father in accordance with the children’s wishes. The remaining parenting issues are yet to be determined at Trial.
It is not in dispute that the father has failed to pay on behalf of the mother a liability owing to the Australian Taxation Office (‘the ATO’) as required by paragraph 1.2.2.1 of the final property orders in the sum of $36,200.00.
The mother now seeks an order preventing the father from proceeding with the balance of his parenting application to Trial until he has complied with the final orders for property settlement (‘the Hadkinson’s order’).[1]
[1] Hadkinson v Hadkinson [1952] 2 All ER 567.
For the reasons set out herein, I propose to dismiss the mother’s application and to list the remaining parenting applications for Trial.
BACKGROUND
The mother is 42 years of age and is employed as a transport worker with C Company.[2]
[2] See the Financial Statement of Ms Deleon filed 19 January 2022.
The father is 60 years of age and employed as a transport worker with D Company.[3]
[3] See the Financial Statement of Mr Deleon filed 4 May 2021.
The parties married in 2008 and separated under the one roof in June 2018. They were divorced in 2021.
The mother filed an Application for Final Orders on 8 December 2020.
The parties are now represented by solicitors. The father was self-represented until an order was made pursuant to section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) on 4 November 2021. Since then, he too has been represented by a solicitor.
The parenting dispute has been complex given allegations of family violence made by the mother and the children’s purported wishes not to spend time with their father. The children have not spent time with the father since February 2020. The name of the children’s school and the address where X and Y reside with their mother is not known by the father.
An Independent Children’s Lawyer was appointed to represent the children and a Psychological/Family Report dated 21 October 2021 obtained from E Psychology.
After final orders were made by consent on 19 April 2023 resolving many of the substantive parenting issues, the parties agreed that the final hearing on 25 July 2023 would take place ‘on the papers’ and without the need for cross-examination given the narrow ambit of the issues which remained in dispute.
On the 25 July 2023, being the actual day of Trial, the position changed. The mother’s counsel in response to an Amended Response to Initiating Application filed by the father on 12 July 2023 and a raft orders sought by the Independent Children’s Lawyer in an Outline of Case Document, submitted that her client required an opportunity to file further affidavit material. The new proposed final orders were said to bring into stark focus the father’s non-compliance with the final property orders. The mother’s counsel also sought an opportunity to cross‑examine the father. Findings of credit were said to now be in issue because the father sought orders that he be given information in relation to the whereabouts and circumstances of the children.[4]
[4] See the ‘Orders Sought’ in the Further Amended Response of Mr Deleon filed 12 July 2023 at paragraphs 7, 8, 9 and 10.
The mother is opposed to any orders that would give the father information as to the children’s school, address, medical providers or extracurricular activities. It is her position that even if orders are made restraining the father from attending at the school or her home or sporting fixtures, the Court should have no confidence that he will comply because of his breach of the final property orders. The mother argues that the risk is too great for orders to be made as sought by the father. Figuratively speaking from the mother’s point of view, once the theoretical ‘genie is out of the bottle’, it will be too late. She argues that the Court should have no confidence in the father abiding by any order which restrains him attending at the children’s school, for example if successful in securing that information at Trial.
At Trial on 25 July 2023, it was ultimately an agreed position that the final hearing could not proceed and the proceedings were adjourned to 23 August 2023 for directions.
On 18 August 2023, the mother simultaneously filed an Application in a Proceeding seeking a ‘stay’ of the parenting proceedings and an Enforcement Application in relation to the unpaid ATO liability pursuant to the final property orders.
The Application for Enforcement was discontinued by way of Notice of Discontinuance filed on 13 October 2023.
The father and the Independent Children’s Lawyer oppose the mother’s application for a stay and seek that the balance of the parties’ parenting applications be listed for Trial.
DOCUMENTS RELIED UPON
The mother did not file a formal Outline of Case Document (Interim Hearing). I infer by way of reference to the Court file and to the submissions made by the mother’s counsel that she relies upon the following documents:
(1)Written Submissions filed 13 October 2023;
(2)Application in a Proceeding filed 18 August 2023;
(3)Affidavit in Support of the mother filed 18 August 2023; and
(4)Costs Notice filed 16 October 2023.
The father relies upon the following documents:
(1)Outline of Case Document (Interim Hearing) filed 17 October 2023;
(2)Response to Application in a Proceeding filed 18 September 2023; and
(3)Affidavit of the father filed 18 September 2023.
The father’s solicitor did not seek any order for costs appearing effectively as ‘amicus curiae’ given that the father is in receipt of a grant of legal aid pursuant to the section 102NA declaration and not funded for this hearing.
The Independent Children’s Lawyer relied upon an Outline of Case Document (Interim Hearing) filed on 16 October 2023.
MOTHER’S POSITION
It is the mother’s position that the father should not be permitted to proceed to final hearing in relation to the outstanding parenting applications whilst he remains in breach of paragraph 1.2.2 of the final order for property settlement made by consent on 24 February 2022.
It is not in contention that the liability of $36,200.00 owing to the ATO is a debt incurred in relation to the party’s self-managed super fund.
The mother sets out in detail the communications between herself, her accountant at F Accountants, the father’s accountants G Accountants and the ATO to try and resolve the issue of the ATO debt.[5] It is her expectation that the ATO will pursue her for the debt including the possibility of garnisheeing her wages until the debt is satisfied.
[5] See the Affidavit of Ms Deleon filed 18 August 2023 at paragraph 14.
In addition, the mother argues that the father has failed to put before the Court any evidence to reassure the Court that he is taking steps to remedy his breach of the final property orders.
It is the mother’s position that pursuant to the decision of Hadkinson, the father should not be permitted to pursue final orders in relation to the children until such time as he has remedied his failure to comply with an existing Court order. Whilst the mother acknowledges that the orders sought by the father at Trial are narrow in compass, she argues that the Court should exercise its discretion not to hear the father’s application for final parenting orders in the circumstances of this case.
If successful in her application, the mother proposed that the appointment of the Independent Children’s Lawyer be discharged, the parties’ applications be dismissed and that the father have “liberty to apply to reinstate his application once contempt is purged.” The mother also sought costs.[6]
[6] Costs were sought in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
If unsuccessful, the mother agreed that the balance of the parties’ respective applications should be listed for Trial and directions made preparing the matter for final hearing.
FATHER’S POSITION
The father opposed the mother’s application and sought that the final order applications be listed for Trial.
Whilst conceding that he has not complied with the final consent orders for property, the father submits that the Court should exercise its discretion to hear the proceedings in relation to the children.[7]
[7] Family Law Act1975 (Cth) s 69F.
The father is critical of the mother for not having taken steps to join the ATO to the original proceedings or to seek an order that binds the ATO to recognise the liability as belonging to the father alone. Further, the father complains about the delay in the mother bringing her stay application when the final property orders were made in February 2022.
The father urges the Court to finalise the parenting proceedings which have now been on foot before the Court for a period of almost three years.
The father contends that he has been “proactive” in trying to settle the ATO debt but submits that his overtures to date have been unsuccessful.
It is the father’s position that the parenting proceedings should be “finalised without delay” and that it is not in the children’s best interests for the litigation to continue and that “the children will continue to suffer.”[8]
[8] See the Outline of Case Document (Interim Hearing) of Mr Deleon filed 17 October 2023 at paragraph 37.
INDEPENDENT CHILDREN’S LAWYER’S POSITION
The Independent Children’s Lawyer has a statutory duty to represent the best interests of X and Y. She argues that the children require certainty which can only be achieved through the ending of the litigation between their parents.
The Independent Children’s Lawyer observes that the remaining final issues in dispute are very limited in nature with the parties having been engaged in litigation since 8 December 2020 and that in that time, “various Amended Applications, Interlocutory Applications and voluminous supporting documents have been filed”.[9]
[9] See the Outline of Case Document (Interim Hearing) of the Independent Children’s Lawyer filed 16 October 2023 at paragraph 9.
The Independent Children’s Lawyer strongly argues that it is in the best interests of the children to end the litigation “without further delay” and that the remaining issues in dispute be set down for Trial as soon as possible.
LEGAL PRINCIPLES
The order sought by the mother is said to be in reliance of a principle espoused in the decision of Hadkinson v Hadkinson (‘Hadkinson’).[10]
[10] Hadkinson v Hadkinson [1952] 2 All ER 567.
At its heart, the rule is said to provide that “a party in contempt will not be heard.”[11]
[11] Fahmi& Fahmi [1995] FamCAFC 106.
Subsequent decisions have confirmed that the rule is a discretionary one and is confined to “proceedings in the same cause” in which the alleged contempt has been committed.[12]
[12] Bettison & Bettison [1965] 1 ALL ER 102, 105-107; Short & Short (1973) 7 SASR 1; Fahmi& Fahmi [1995] FamCAFC 106; Watson & Watson [2013] FamCAFC 25.
The lack of nexus between the “proceedings in the same cause” is fatal to any application to apply the rule.[13]
[13] Fahmi& Fahmi [1995] FamCAFC 106; Watson & Watson [2013] FamCAFC 25; Dautry & Wemple [2018] FamCAFC 237.
Other considerations may also arise such as whether the Court should only refuse to hear a party in contempt when the contempt itself impedes the course of justice and there is no other means of securing compliance.[14]
[14] Short & Short (1973) 7 SASR 1.
In the decisions of Kachmarik & Gebel [2019] FLC 93-927 and Moorcroft & Moorcroft [2018] FamCAFC 253, the Full Court has upheld Hadkinson’s orders which were found to be orders made in the same proceedings.
A similar approach was taken in the decision of De Gafforj (Appeal: Hadkinson’s Order) [2018] EWCA Civ 2070.
In this case, the father’s breach arises from failure to pay a taxation liability arising from property proceedings. The mother seeks a Hadkinson’s Order in relation to parenting proceedings. The question therefore arises as to whether or not an application for parenting proceedings can be said to be in the same cause, or in the same proceedings in which orders for property settlement have been made?
As the Full Court observed in Fahmi,[15] the fact that the applications are placed on the same file and given the same file number is of no consequence in that:
…the registry practice of the Family Court of giving all applications between the same parties the same filing number cannot in our view, override the clear provisions of the Family Law Act, that there are distinct proceedings depending on the nature of the relief claimed.
[15] (1995) FLC 92-637.
As identified by the Full Court:
The question of whether the application is in the same proceeding or in the same cause is crucial and is determined by reference to the structure and content of the definition of ‘matrimonial cause’ in the Act, the relevant parts of the Act and the …Rules… that apply and, ultimately whether the proceedings may be identified as distinct because the nature of the relief claimed in them respectively is determinative.[16]
[16] Watson & Watson [2013] FamCAFC 25, [36](e).
More recently, the Full Court held:
We consider that the determination of what constitutes proceedings is governed by identification of the separate causes of action on which one or more of the parties move and not by the administrative allocation of a file number to causes of action.[17]
[17] Jess & Jess (No 3) [2023] FedCFamC1A 2.
Further, the Full Court identified that the various definitions of ‘matrimonial cause’, ‘child related proceedings’, ‘divorce or validity of marriage proceedings’, ‘property settlement or spousal maintenance proceedings’, ‘property settlement proceedings’, ‘section 69GA proceedings’ and so on as contained in section 4 of the Act “...support the view that it is the nature and substance of the matter that defines the content of the proceedings. Each is defined as a separate proceeding.”[18]
[18] Jess & Jess (No 3) [2023] FedCFamC1A 2, [54].
In this case, the father breached a final order arising from proceedings for property settlement under Part VIII of the Act.[19] The relief sought by the mother is in proceedings for parenting applications under Part VII of the Act. They are separate causes of action.
[19] Family Law Act 1975 (Cth) s 4(ca).
In my view, the Court cannot make the order as sought by the mother because the Hadkinson’s rule cannot be enlivened. It is fatal to the mother’s application and accordingly the application must be dismissed.
Even if I am in error in relation to the question of ‘the same cause or same proceeding’, there is one further and not insignificant legal principle that must also be considered in the current dispute. That principle is that in any parenting proceeding the Court is required to regard the best interests of the children as the paramount consideration.[20]
[20] Family Law Act 1975 (Cth) s 60A.
Ms Comley who is the appointed Independent Children’s Lawyer has a statutory interest to represent the best interests of X and Y. It is her position that these proceedings be finalised without further delay.
In circumstances where the proceedings have been extant for almost three years, I agree with this submission. The overarching purpose of family law practice and procedure provisions provide that family law disputes are to be resolved as quickly, inexpensively and as efficiently as possible.[21] Parties to a proceeding must conduct the proceeding in a way that is consistent with the overarching purpose.[22]
[21] Federal Circuit and Family Court of Australia Act2021 (Cth) s 67(1)(b).
[22] Federal Circuit and Family Court of Australia Act2021 (Cth) s 68(1).
The best interests principle alone would be sufficient in my view to decline to make orders as sought by the mother. The Court will not countenance any situation which might see a relisting of the father’s application on a ‘liberty to apply’ basis. In my view, this would be tantamount to adjourning the proceedings sine die and does not meet with modern litigation procedures designed to bring litigation to an end.
For the reasons set out above, I do not need to consider whether or not to exercise my discretion pursuant to section 69F of the Act.
I reject the submissions made by the father as to the other remedies that were open to the mother at the date the orders were made and subsequent. The order was made with the father’s consent. The Court and the broader public expect compliance with orders duly made. As was observed by the Full Court:
…If breached orders are left unenforced, public confidence in the courts capacity to quell litigious disputes is undermined. The disobedience of orders inevitably involves, first, an innocent party incurring more cost and inconvenience to enforce the orders against the defaulting party, and second, the diversion of resources by the courts from other deserving disputes to entertain the enforcement applications…[23]
[23] Moorcroft & Moorcroft [2018] FamCAFC 253, [37].
The failure by the father to comply with existing orders of the Court remains a matter to brought to account at final hearing in relation to X and Y.
CONCLUSION
For all of the above reasons, the Court proposes to dismiss the parties’ interim applications and to list the matter for Trial.
Neither the father, nor the Independent Children’s Lawyer sought costs. Accordingly, I propose to order that each party bear their own costs of and incidental to the interim applications so determined.
For the above reasons, the Court makes the orders as set out at the commencement of this Judgment.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 27 October 2023
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