Gibson and Killen (No 2)

[2016] FamCA 234

FAMILY COURT OF AUSTRALIA

GIBSON & KILLEN (NO 2) [2016] FamCA 234

FAMILY LAW – Procedural – father, having been granted an adjournment of a trial, was ordered to file his evidence but also pay costs thrown away – he did neither – application to proceed undefended – consideration of what order should be made.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gibson

RESPONDENT: Mr Killen

INDEPENDENT CHILDREN’S LAWYER: Ms Webb

FILE NUMBER: MLC 1112 of 2013

DATE DELIVERED: 23 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bett

SOLICITOR FOR THE APPLICANT: Geelong Family Lawyers

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Webb, Danielle Webb, Lawyers

Orders

1. That paragraph 9 of the orders of 25 January 2016 is discharged.

2. That paragraph 10 of the order of 25 January 2016 is varied so that s 69ZT(3) only applies to the evidence in chief of the mother.

3. That the application of the mother as amended and filed on 1 April 2015 proceed on an undefended basis on the return date subject to any other order of the trial judge.

4. That the costs of the mother and the Independent Children’s Law both fixed in the sum $895 are reserved to the trial.

5. That the application in a case filed 23 March 2016 is dismissed.

6. That the reasons be transcribed.

7. This order be served as soon as practicable by email only to the father at …

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Gibson & Killen (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1112  of 2013

Ms Gibson

Applicant

And

Mr Killen

Respondent

REASONS FOR JUDGMENT

1. On 25 January 2016 I adjourned a trial that was due to commence on that date on the application by the father, Mr Killen.  I gave reasons for the adjournment and I do not intend to repeat them.  Having granted the adjournment, I set the trial down to commence on 11 April with an anticipated three days duration.  One of the problems that had arisen on 25 January and which, to some extent, necessitated the adjournment, was that the father’s material, if it could be called that at all, was certainly stale.  His response seeking orders had been filed at a time when he was represented by lawyers on 9 May 2014 in the Federal Circuit Court.

2. This case has had an unfortunate history of wandering through the system and being adjourned several times until it was ultimately transferred to this Court.  Notwithstanding it was transferred to this Court and there were procedural hearings before a registrar, it seems that the father had not updated his material.  That included not having updated it for the purposes of the trial that was to start on 26 January.  On 25 January I made the order that he file and serve any affidavit material upon which he intended to rely by no later than 4 pm on 11 March 2016.  He did not do that.

3. An application in a case was filed on 22 March, which I acknowledge was only yesterday, by the applicant mother seeking two orders.  The first was that she be granted leave to proceed on an undefended basis and the second that the father pay the costs of and incidental to this application.  This morning the father has been called and has not appeared.  Whilst that might give rise to some concern about whether he had been served, it is interesting that the independent children’s lawyer only got the material in the same timeframe and she has attended.

4. One of the problems raised by the service issue is that the respondent father gave his address for service as C Street, Suburb D.  I am advised by the solicitor for the mother today that that is his parent’s address and, indeed, the property was sold in 2015.  It is possible, of course, that the property had not settled when he filed his notice (although I doubt it) and that he was still living there or his parents were.  Needless to say, the whole thing is unsatisfactory because he has not only filed no material as he was ordered and he has not attended today.  There has been discussion about what the words “undefended meaning” are and, as I indicated, it is unclear.

5. The problem with this particular case is that the independent children’s lawyer faces the problem of having to call witnesses who are employees of state instrumentalities and, accordingly, would only give evidence if they were required under subpoena because it is not the practice of those state authorities to provide affidavit evidence.  Putting it rather bluntly, Mr Killen is causing a lot of problems for a lot of people at huge expense and remaining remarkably silent in circumstances where his application sought, at least in 2014, an order that the child live with him.

6. Just exactly what his current position is remains a mystery.  Because there was no specific application by the mother that the response be dismissed or even struck out, the only orders I can make today, realistically, are those in line with the application that is before the Court.  Accordingly, what I propose to do is to adjourn the formal substantive application to be listed on the trial date as an undefended matter but it will be up to the parties on that day to decide whether to seek to have the father’s application for orders dismissed but also to prove the case.  This Court is not a default jurisdiction.

7. I made an order on 25 January that the rules of evidence apply.  I am prepared to vary that order on the basis that whilst it applies to all of the evidence, I would now restrict it to the evidence-in-chief of the mother. 

8. Accordingly, I will vary paragraph 10 of the orders of 25 January 2016 so that section 69ZT(3) only applies to the evidence-in-chief of the mother.  That should not be a problem because she had already filed her evidence-in-chief but on the return date I had expressed some concern about its usefulness. 

9. Accordingly, the other issue that I need to deal with is the question of costs.  Both the mother and the independent children’s lawyer are funded by Victoria Legal Aid and, again, the resources of that organisation, which the public well knows are stretched, are wasted because of the position adopted by the father. On the previous occasion I made orders for costs against him of some substance and he has not paid any of those.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 March 2016.

Associate: 

Date:  14 April 2016