Diacos & Gataki (No 2)

[2021] FCCA 1256

FEDERAL CIRCUIT COURT OF AUSTRALIA

Diacos & Gataki (No 2) [2021] FCCA 1256

File number:

MLC 11078 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

27 May 2021

Catchwords:

FAMILY LAW – Interim parenting – where mother has not particularised the final orders that she seeks – where father seeking no further orders – whether proceedings should be dismissed - where mother seeking child inclusive conference – orders made for mother to file material.   

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Boyd & Sage (2020) 61 FamLR 211

Goode & Goode [2006] FLC ¶93-286

Rice & Asplund [1978] FamCAFC 128

Number of paragraphs:

13

Date of hearing:

27 May 2021

Place:

Melbourne

The Applicant:

Appeared In Person

Counsel for the Respondent:

Mr C King

Solicitor for the Respondent:

Knight Family Lawyers

ORDERS

MLC 11078 of 2020

BETWEEN:

MR DIACOS

Applicant

AND:

MS GATAKI

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	27 MAY 2021

THE COURT ORDERS THAT:

1.On or before 4.00pm on 24 June 2021, the Mother file and serve any amended response clearly setting out the final orders that she seeks.

2.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 26 July 2021 at 9.30am for interim defended hearing for the purpose of considering whether the proceedings should be permitted to continue in accordance with the principles of Rice & Asplund.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may seek an order and may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Diacos & Gataki (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. This matter comes before me as an interim defended hearing matter; I had previously dealt with the matter on 30 October 2020 and again on 11 February 2021.

2. The orders made on 30 October 2020 were as follows:

   THE COURT ORDERS THAT:

   1.The Respondent Mother do all acts and things to ensure the child X (‘the child’) born in 2014 attends school on Monday 2 November 2020.

   2.The Applicant Father collect the child at the conclusion of school on Monday 2 November 2020 and the child remain in the Applicant Father’s care until the conclusion of school the following Monday 9 November 2020 and the Applicant Father ensure the child attends school that day in the usual manner.

   3.The Respondent Mother will collect the child at the conclusion of school on Monday 9 November 2020 and ensure the child attends school on Friday 13 November 2020 in the usual manner.

   4.The Applicant Father collect the child at the conclusion of school on Friday 13 November 2020 and the week about arrangements that were previously in place during school term recommence in accordance with the Final Orders of 14 December 2018.

   5.Until further order, both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the X born in 2014 from the Commonwealth of Australia.  This order ceases to have effect 2 years after the date on which it is made.

   6.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.

   7.The Court requests that the Australian Federal Police place the name of the child on the Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.  This order ceases to have effect 2 years after the date on which it is made.

   8.The matter be adjourned to the Federal Circuit Court of Australia on 11 February 2021 at 10.00am for Mention.

   AND THE COURT NOTES THAT:

   A.       Save as provided herein the orders of 14 December 2018 remain in place.

   B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

   C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

   D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

   E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

   F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

3. The orders of 11 February 2021 are as follows:

   THE COURT ORDERS BY CONSENT THAT:

   1.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 27 May 2021 at 9:30am for Interim Defended Hearing.

   2.By 4:00pm on the date 28 days prior to the adjourned date, the Mother file and serve any further Affidavit she seeks to rely upon.

   3.By 4:00pm on the date 14 days prior to the adjourned date, the Father file and serve any further Affidavit he seeks to rely upon.

   4.Save as provided for in these Orders, neither party shall be permitted to rely upon any further Affidavits without first obtaining the leave of the Court.

   AND THE COURT NOTES THAT:

   A.Orders 5-7 of the Orders of 30 October 2020 (Airport Watchlist Orders) remain in full force and effect.

   B.       The Final Orders of 14 December 2018 remain in full force and effect.

   C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

   D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

   E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

   F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

4. When the matter came before me today I was advised by the Father, who is the applicant, that the existing orders were being complied with, that he did not seek any further or other order and that he had commenced the proceedings solely because of the Mother's non-compliance with the final orders that were made on 14 December 2018.  These reasons should be read together with, and in conjunction with my ex tempore reasons of 30 October 2020.

5. On 30 October 2020 when the Mother was represented by counsel, the state of play was that she had filed a response for final orders, whereby, she said she would particularise the final orders that she sought after she received a section 11F child inclusive memorandum.  The other aspect of the hearing was that the matter had been first before me on 22 October 2020 at a time, when contrary to the final orders, the Mother had retained the child in her care.  The matter had come before me on 22 October 2020 because the Father’s application to expedite the hearing of the matter had been dismissed.

6. Elegant and sophisticated written submissions were made on 22 October 2020 relating to whether or not I had jurisdiction to review a registrar's decision not to list the matter more urgently.  It was striking to me when I dealt with the matter on 30 October 2020 that the parent who was in breach of the orders had chosen not to seek relief from the Court, but instead to retain solicitor and counsel and file detailed, and as I have said sophisticated and elegant written submissions challenging my jurisdiction to list the matter urgently.  The overwhelming inference is that the Mother did not regard the proceedings as urgent at that point.

7. I subsequently dealt with the matter on 30 October 2020 and delivered an ex tempore judgment.  Subsequent to that, the settled extempore reasons were provided to both of the parties on 18 December 2020.

8. In terms of the factual matrix behind this case I refer to, and repeat my observations in the settled reasons of 30 October 2020.  I note that the Mother sought on the hearing of 30 October 2020, an urgent section 11F child inclusive conference.  A section 11F child inclusive conference was defined by Bennett J in Boyd & Sage (2020) 61 FamLR 211 as:

   [15]…a “Child Inclusive Conference” which is a meeting with a Family Consultant, the adults and the children involved in the matter and is ordered by the Court. Lawyers are not included. The conference is intended to give the Court an understanding of the family situation, and particularly of the child/ren’s experience. The conference can help the judicial officer hearing the case make short-term decisions about arrangements for the child/ren. It may also help the parties reach an agreement. A Family Consultant is an expert psychologist or social worker with a high level of training and experience in child development and parenting after separation and divorce.  Family Consultants are employed directly and exclusively by the Court in Child Dispute Services which is located within the Registry.

9. At that time of the 30 October 2020 hearing, I said at paragraph [55]:

   [55]As to the request for a section 11F report, (that) in my view, assumes that the Rice & Asplund rule hurdle has been overcome.  It may be in due course, but I am not prepared to have the substance of these proceedings simply wait until I am able to provide a section 11F report but further, and more significantly… a section 11F report would not ordinarily be ordered unless the rubicon of Rice & Asplund has been crossed.  In this case the Mother seeks to get the section 11F report to see if (her) case can be ordered in a manner that would then justify the orders that she seeks.

10. Both parties then submitted to me that I should proceed to hear that interim hearing guided by the principles of Goode & Goode [2006] FLC ¶93-286. As can be seen by the orders that I have recited, I made orders that ensured compliance with the existing final orders of 14 December 2018.  I also repeat paragraph [57]:

    [57]In this matter I am guided by paragraph [82] of the Full Court in Goode & Goode and note that it is the joint position of the parties’ solicitor and counsel that I should do so.  The first aspect is to identify the competing proposals of the parties.  In that regard the Father presses that the child be returned to the still extant final orders of 14 December 2018.  The Mother's proposal is less clear.  Her proposal is that pending a section 11F report, whenever that may be, the Father's face-to-face time simply be suspended but that she formulate… her final orders sought… following that report.

11. The matter then comes before me this day and the Mother is represented by counsel and the Father in person.  The Father asserts that there is no sufficient change in circumstances as to satisfy the test of Rice & Asplund [1978] FamCAFC 128 (‘Rice & Asplund’).

12. Counsel on behalf of the Mother sought that I order a section 11F child inclusive conference and otherwise adjourn the proceedings.  I am not prepared to do so in the circumstances where, notwithstanding that the Mother filed a response as long ago as October 2020 she still has not particularised the final orders that she seeks.  In my view, it still remains inappropriate to order a section 11F child inclusive conference assuming that the Rice & Asplund rubicon has been crossed.  Particularly when today her counsel relied upon the material that she filed back in October 2020.

13. The problems with that circular approach remain and if anything are more problematic when the circle is attempted to be traversed for a second time.  In all of those circumstances I refuse the application to order a section 11F child inclusive conference and I contemplated dismissing the proceedings.  However, in an excess of caution and in the circumstances of the serious nature of the allegations that were made in the proceedings, and having been pressed by her counsel that those allegations are a sufficient change or circumstance, I am prepared against the opposition of the Father to allow the Mother another period of time to file an amended response setting out the final orders that she seeks.  Her counsel sought 14 days.  I have no confidence that she would file such a document within 14 days, and I will allow 28 days.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       7 June 2021