Garwood & Shipton (No 6)

[2023] FedCFamC1F 813

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Garwood & Shipton (No 6) [2023] FedCFamC1F 813

File number(s):	ADC 4995 of 2018
Judgment of:	KARI J
Date of judgment:	15 September 2023
Catchwords:	FAMILY LAW -  PRACTICE AND PROCEDURE – Ex tempore reasons - Where the respondent mother’s case outline document was filed at 11.53 am and the hearing was scheduled to commence at 11.30 am – Where case outline documents were not ordered to be filed – Where the case outline document had not been provided to the father or his legal representatives in advance of the hearing -  The case outline document was not accepted by the court
Division:	Division 1 First Instance
Number of paragraphs:	5
Date of hearing:	15 September 2023
Place:	Adelaide
Counsel for the Applicant:	Mr Manetta
Solicitor for the Applicant:	Culshaw Bishop Lawyers
Counsel for the Respondent:	Mr Cox SC
Counsel for the Respondent:	Ms Hume
Solicitor for the Respondent:	Angela Ferdinandy

ORDERS

ADC 4995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GARWOOD

Applicant

AND:

MS SHIPTON

Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	15 SEPTEMBER 2023

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 the pseudonym Garwood & Shipton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

KARI J:

1. I am not going to have regard to the Case Outline that has been prepared on behalf of the respondent.

2. The Case Outline that the respondent asks the court to receive was filed today.  It has now appeared on my digital Court file.  The court seal indicating the timing of filing of that document bears a time stamp of 11.53 am.  This matter was scheduled to be heard at 11.30 am. 

3. While I accept that, oftentimes, the preparation of outlines by counsel is of assistance to the court, that is only the case when the outlines are filed in advance of the hearing, giving not only myself the opportunity to read and understand the submissions that are to be put before coming on to the bench, but, importantly, if nothing more than procedural fairness to the opponent, giving them a chance to understand the submissions as well.   

4. I also pause here to note further matters which arose during the exchange with counsel for the mother.  They are matters that arose at the hearing on 6 September 2023 when procedural orders for today’s hearing were made. Those matters are as follows:

   (a)At the hearing on 6 September 2023, senior counsel for the mother and senior counsel for the father both appeared.  On that occasion, the matter was timetabled to today’s date.  As part of the timetabling of the application to today’s date, I made orders for the filing of material.  Those orders included an order that the father file and serve any affidavit he intends to rely on for the purposes of the costs application, by 4.00 pm on 13 September. The mother was ordered to file any affidavit that she intends to rely on by 4.00 pm on 14 September 2023.  I note that, in compliance with the orders made on 6 September 2023, the father’s affidavit was filed as required on 13 September 2023 and it bears a timestamp of 12.55 pm.  It is not clear to me when that document was served upon the mother.  The mother’s affidavit, conversely, was filed outside the timeframe prescribed by the orders.  It bears a timestamp of 6.26 pm.

   (b)There was no request for outlines to be filed and, indeed, no orders were made.  Everyone understood, when I made the orders on 6 September 2023, that there would be a short turnaround and, indeed, there was some discussion between bar and bench in relation to the filing deadlines and the preparedness of the parties for the hearing.  The orders that were ultimately made were made with the consent of counsel.

   (c)Additionally, when those time-tabling orders were made, and in relation to the timing and length of today’s hearing, I note that there was a request made by the mother’s counsel as to how long the court intended to sit to hear the application and I was asked whether the court would sit beyond lunch time. In response to that enquiry, I indicated that I would not be sitting beyond the luncheon adjournment.  There was some relief expressed by counsel for the mother that that was the intended time frame - namely, rising by 1.00 pm today. 

5. For all of those reasons, I refuse to accept the outline that has been prepared and, secondly, I do not propose to sit beyond 1.00 pm today. 

   NOTE:

   These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.

I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari.

Associate:

Dated:       22 September 2023