GARCON and GARCON

[2020] FCWA 192

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GARCON and GARCON [2020] FCWA 192

CORAM: TYSON J

HEARD: 12 OCTOBER 2020

DELIVERED : Ex tempore

FILE NO/S: [Redacted]

BETWEEN: MS GARCON

Applicant

AND

MR GARCON

Respondent

Catchwords:

PRACTICE AND PROCEDURE - Application to vacate trial - Application for leave to proceed on an undefended basis - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms D
Respondent	:	Mr E
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm C
Independent Children's Lawyer	:	Law Firm D

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garcon and Garcon has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

TYSON J:

1 Before the Court is the Form 2 application filed by the father, handed up in Court today, in which he seeks a number of orders. The pressing application is for the trial that is listed to commence today, with an estimated hearing time of four days, be vacated. He also seeks ancillary orders to file trial material. That application is opposed by the mother. The Independent Children's Lawyer supports the application.

2 Also before the Court is the mother's application for leave to proceed on an undefended basis, as a result of the father's failure to file his trial material.

3 Mr and Mrs [Garcon] are the parents of three children: [Child A], who is 15 years old, [Child B], who is 13 years old and [Child C], who is six years old.

4 The parties were married and separated in either late 2015, or early 2016. Since separation, the parents have been involved in protracted and difficult litigation before this Court. I do not consider it helpful or necessary to detail the lengthy history of the litigation, which is familiar to the parties.

5 The mother and father have been unable to agree on the arrangements that are in the best interests of their three children. The proceedings have necessitated a number of applications and attendances before the Court. Presently, all three children live with the mother. At the time the mother filed her trial material, the children were not spending any Court ordered time with their father. The mother deposed that Child B and Child C had seen their father at a train station, on the way to and from school, and electronic communication was taking place.

6 As a result of the serious allegations raised by each parent as to the safety of the children, an ICL has been appointed.

Single Expert Witness

7 The Single Expert Witness [Mr A] was appointed pursuant to orders made on 28 October 2019. Mr A prepared a report, dated 5 October 2020. That report was distributed to the parties in Court today, having only been received by the Court late last week.

8 I observe that the report of the Single Expert has been received over 12 months after his appointment. I accept the submissions made by the ICL that was so, despite her efforts.

9 The report indicates that to a large extent, the delays in publication lie with the parties: the father initially refused to participate and while he then did so, there were difficulties with the father's level of participation. There were problems in arranging for [Child A] to attend on the Single Expert, which the mother was eventually able to facilitate on 19 May 2020, after the father's attempts failed.

10 The report is some 37 pages in length. The parties have only had an opportunity today to read it.

What is the father's case?

11 The father says he is not ready for the trial to proceed. The father seeks an extension of time in which to comply with orders to file and serve his trial material. He has only recently been appointed a solicitor, pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme. The father's solicitor was unaware that he could obtain funding to assist the father in relation to his trial material.

12 The father's solicitor says he now intends to seek an extension of funding and assist the father in preparation of his trial material. He says the father should not be prejudiced by his lack of understanding or experience in relation to the Scheme.

13 The father says he has issued subpoenas, including to [Supermarket A], and no documents have been produced. There are other subpoenas issued by the ICL, which he has not had an opportunity to inspect and wishes to do so.

14 He says, in essence, that it would not be procedurally fair for the trial to go ahead.

What is the ICL's case?

15 The ICL has indicated today, with some reluctance, that it is not procedurally fair for the trial to proceed, in light of the very recent receipt of the Single Expert's report.

16 She also raises concerns regarding subpoena. Through no fault of the parties, subpoenaed material has not been produced, which she considers to be material and relevant to determining what is in the children's best interest.

17 While the ICL supports an order for the trial to be vacated, she is critical of the father's failure to comply with multiple opportunities afforded to him to file his trial material. She says that a short period only should be given for that purpose, failing which a springing order should be made and the matter should proceed, on an undefended basis.

18 Support for the ICL's submission that the proceedings need to be progressed without delay, despite the fact the trial ought be vacated, is contained in the report of Mr A. The Single Expert makes a number of observations about the extent to which each of the children have, regrettably, been directly exposed to conflict between their parents and the proceedings.

19 Mr A has raised a number of concerns that the children are at risk of harm as a consequence of the father's conduct and behaviour, including his ongoing denigration of the mother to the children.

What is the mother's case?

20 The mother opposes the trial being vacated. The mother's counsel says the father has had multiple opportunities in which to file his trial material and he has failed to do so. She points to the fact that when the father is sufficiently motivated, he has the ability to file material, as evidenced by his application and affidavit handed up in Court today.

21 The mother's counsel acknowledges the report of the Single Expert Witness is long and received only today. She submits the question of procedural fairness is not, simply, one directed towards the father, but also towards the mother. The mother is entitled to procedural fairness and for that to be weighed up against the rights of the father but, also, the rights of the children, as well as other litigants before the Court.

Discussions and Conclusions

22 It is not in dispute that the father has failed to comply with orders to file and serve his trial material.

23 On 8 July 2019, orders were made entering this matter into the defended list, at which time it was listed for a Readiness Hearing. The mother was required to file and serve her trial material by 8 October 2019. The father was required to file and serve his responding material within 28 days of service of the mother's trial material.

24 At the Readiness Hearing on 18 November 2019, neither party had complied with those orders. The father also failed to attend.

25 The proceedings were adjourned to a further Readiness Hearing on 4 February 2019. At that date, the father attended, and the Court referred to the s 102NA order in place, as a result of the Final Violence Restraining Order in place between the parents. Neither party had then filed their trial material.

26 The proceedings were adjourned to a second adjourned Readiness Hearing on 19 May 2019. The mother filed her trial material on 15 May 2019. Orders were made extending the time in which the father was to file and serve his trial material until 5 June 2019. The proceedings were subsequently listed into the call-over, and allocated trial with a fixed hearing date, to commence today.

27 On 19 June 2020, the Principal Registrar wrote to the parties, advising the proceedings were listed for a Status Hearing on 18 August 2020. In that correspondence, it was observed the father had not filed his trial material, despite the extensions of time. I made an order in chambers extending the time in which he was to comply with paragraph 1 of the orders of 19 May, until 17 July 2020, failing which, the correspondence advised at the Status Hearing, consideration would be given to an order dismissing the father's Form 1A and providing the mother and the ICL with liberty to proceed on an undefended basis.

28 The correspondence also referred to the order made pursuant to s 102NA, the fact it did not appear the father was legally represented, and queried what efforts the father had made to apply to access the Scheme.

29 When the matter came before the Court on 18 August 2020, the father advised he had made an application to access the Scheme, but had not yet been granted legal representation. It is unclear if that was correct.

30 Orders were made extending the time in which the father was to file and serve his trial material to 15 September 2020. The father failed to do so.

31 The mother has subsequently filed an application in which she seeks leave to proceed on an undefended basis. I observe that since that time, the father has filed a minute in which he has set out the orders he seeks. The minute was accepted for filing, notwithstanding non-compliance with the orders.

32 At the time the father filed his minute, in his cover letter he sought an extension of seven days in which to file and serve his trial material. The father has not done so, and his reasons for not doing so have not been satisfactorily explained.

33 The law in relation to vacating a trial and/or any application to extend the time, is a matter that has been well ventilated in previous decisions, and is a matter of discretion.

34 As Chief Justice French observed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in the proper exercise of that discretion, applications for adjournment or late amendment are not to be considered, solely, by reference as to whether any prejudice to the other parties can be compensated by costs.

35 Whatever costs may be ordered, as his Honour observed, there can be an irreparable element of unfair prejudice in the unnecessary delay of proceedings. In addition, the time of the Court is a publicly funded resource. The main interest is the efficient and proper use of that resource, the need to maintain public confidence in the judicial system, and the interests of other litigants in having their own cases heard in a timely manner.

36 That said, the Court said, in The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, that case management is not an end in itself. Justice is the paramount consideration in determining an application for adjournment or late amendment, and save, insofar as costs may be awarded, such an application is not the occasion for punishment of the party making it. I am required to consider the prejudice to the father if the adjournment is not granted, and to weigh that against the prejudice to the other parties if it is.

37 In a parenting case, it is also appropriate to pay significant regard to the best interests of the children, if they are affected by the determination of the application to adjourn. While an order for adjournment is not a parenting order, and, accordingly, the best interests of the children are not mandated by the legislation, they, nevertheless, must be considered and given appropriate weight.

38 They are the principal matters to be considered, and it is only against that background that I am entitled to take into account the case management principles referred to.

39 I accept that to adjourn the trial is prejudicial to all the parties. This litigation has been long-standing. Five days have now been set aside to determine arrangements that are in the children's best interests.

40 I accept any delay in the trial proceeding, together with the ongoing uncertainty about these matters, is likely to be stressful and cause anxiety to each parent.

41 The father's current application seeks for the children to live in a shared care arrangement. That application is opposed by the mother. It is clear from the report of the Single Expert, including his observations, that the current litigation is causing the mother significant stress and anxiety, together with the father's ongoing behaviour towards her, which is impacting on her capacity to provide for the children's needs.

42 It is unfortunate that the report of the Single Expert was not available sooner.

43 It is with some regret, but after careful consideration, I am not satisfied the trial can proceed, because I do not consider that to be in the interests of justice, nor to be in the children's best interests.

44 I have reached that decision for a number of reasons. I am not satisfied that the case proceeding is procedurally fair, in circumstances where the parties have not had an adequate opportunity to consider the contents of the Single Expert's report.

45 The parties may have questions they wish to raise with the Single Expert. The parties may wish to amend the orders they seek in light of the recommendations of the Single Expert. These matters were foreshadowed on the last occasion when I gave the parties leave to file and serve amended minutes following receipt of the Single Expert's report, in the expectation the report would be available well in advance of the trial.

46 There is subpoenaed material that has not yet been returned. The ICL says that material is relevant to a determination of what is in the children's best interests.

47 While the father makes a number of submissions in relation to his failure to file trial material, there is substance to the submissions made by both the mother and the ICL about the multitude of opportunities the father has had to do so. I am not satisfied at this stage that the father has provided a satisfactory explanation for his failure to comply with the orders made to date.

48 I note the father now has the benefit of independent legal representation, pursuant to the Scheme. It emerged during submissions that the father's counsel failed to understand what the funding entailed, together with his obligations in relation to representing the father. The father's counsel has now made further inquiries with [Law Firm A] and has a better understanding of what his role is, pursuant to the grant. In making those observations, I do not discount the fact that the Scheme has been operating relatively recently, and there has been limited experience by some solicitors in relation to what that Scheme entails.

49 There is force to the submissions made by the mother and the ICL that any delay in the proceedings is not in the children's best interests. That issue has been ventilated at some length by the Single Expert. While I accept that evidence is not yet tested, it is evidence upon which I attach weight.

50 The Single Expert has raised many concerns about the impact the litigation has had upon the children, the fact the children have been exposed to the litigation but, also, to behaviour that has placed the children at risk of harm by their father.

51 Concerningly, since the report of the Single Expert, there have been further incidences of alarm with respect to Child A. At the time the Single Expert prepared his report, he considered Child A was at risk: she had not been attending school on a regular basis throughout 2019 and 2020; she had been displaying defiant, oppositional and difficult behaviour, including truancy, consumption of alcohol and using [an illicit substance].

52 At the time of his report, Child A had recently been charged with [an offence], she was subject to a community-based order and being supervised by the juvenile justice system.

53 In March 2020 Child A had attempted self-harm, resulting in her hospitalisation. Child A told her mother that her father had threatened her with an […] and held a knife to her throat.

54 Today, the Court has been informed that Child A was arrested on Friday evening. A Statement of Material Facts has been handed up and is exhibit 1. It appears Child A has been charged with further criminal offences and is subject to bail conditions, which include a curfew. Child A is required to remain living in her mother's home. Those proceedings are next listed in Court A [in late] 2020.

55 In the circumstances of the case, I consider it necessary and the interests of justice require that the trial be vacated.

56 In turning then to the second issue, whether the mother should have leave to proceed on an undefended basis.

57 I accept the father's submissions there have been delays in the mother's compliance with orders of the Court. However, the father can hardly be described as a person who has come to the Court with clean hands. The chronology of his non-compliance with orders does not require repeating.

58 The ICL has submitted if the father is given leave to participate in the proceedings, he should file and serve his trial material within 21 days. The father's counsel agrees the time period is appropriate. He intends to advance an application to obtain additional funding, to assist the father in preparation of his material. I consider that to be appropriate.

59 I am not prepared to make an order that the mother have leave to proceed on an undefended basis, arising from my decision to vacate the trial.

60 However, I intend to give the father 21 days in which to file and serve his trial material. If the father fails to do so, then the file will be referred to me in chambers and an order will be made to dismiss his Form 1A without further notice to the father.

61 The father has been given multiple opportunities to file his trial material. He has shown an ability to file material, when he wants to.

62 If the father fails to comply with the order, his application will be dismissed without further order of the Court. The father is present in Court today. He has heard the orders and he has the benefit of legal representation.

63 I will hear from the parties as to what further orders may be required in the circumstances.

ORDERS

1.The trial listed to commence today be and is hereby vacated.

2.By no later 3 November 2020, the father is to file and serve:

(a)a minute setting out with precision the final orders he seeks;

(b)a single standalone affidavit setting out the whole of that party's evidence in chief for the purposes of the trial, including no more than 15 annexures;

(c)an affidavit of each witness, including no more than 5 annexures attached to each affidavit;

(d)a list containing the names of any proposed witness who has refused to provide an affidavit; and

(e)a written undertaking as to disclosure in the form set out in the Family Law Rules 2004 (Cth), attaching each party's list of disclosure documents.

3.In the event the father fails to comply with the preceding order, then the file be referred to Justice Tyson in Chambers for an order to be made dismissing the father's Form 1A response filed 8 November 2016 without further notice to the parties and the mother and the Independent Children's Lawyer then have leave to proceed on an undefended basis.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

5 NOVEMBER 2020