Grant and Aiden (No 4)

[2017] FamCA 1155

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO 4) [2017] FamCA 1155

FAMILY LAW – PROCEDURAL – Mother’s application to proceed on an undefended basis – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 20 March 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 20 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

1. The mother’s Application in a Case filed 8 March 2017 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden (No 4) 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 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter is listed for final hearing before me this day. On 16 October 2016 when I set the matter down for hearing I also made orders for the filing of affidavits by the parties and the preparation of a family report in anticipation of that hearing. An order had also been made by consent on 12 September 2016 requiring the parties to attend upon Dr Z for psychiatric assessments.

2. On 8 March 2017 the mother who is the respondent in these proceedings filed an application in a case in which she seeks an order permitting her to proceed with the matter on an undefended basis.

3. In her affidavit in support of that application the mother deposes that the father has not complied with my order of 12 October 2016 that he file and serve a further amended application.

4. As submitted by counsel for the father her complaint seems to be one of form in that she complains not that the father has not filed a further amended application but that he has not done so in the proper form, the basis of her case being that:

   ·the father has not re-signed or dated the statement of truth as to the contents of the application;

   ·he has not underlined in red as the rules require those parts of the document which contain new information; and

   ·he has not annexed a further certificate from a registered family dispute resolution practitioner as she says the Family Law Rules 2004 (Cth) (“the Rules”) require.

5. The mother also deposes to the Independent Children’s Lawyer’s failure to comply with my orders made 12 October 2016 in that she did not file the Affidavit of Dr Z until 9 March 2017 albeit the orders required any affidavits upon which she sought to rely to be filed by 17 February 2017.

6. Although the Independent Children’s Lawyer concedes she did not file Dr Z’s Affidavit within the time specified by the orders it was submitted on her behalf that Dr Z had forwarded a copy of his report to all of the parties and the family consultant on 16 February 2017.

7. Although the mother’s case is that she did not receive that report annexed to an email from Dr Z dated 16 February 2017 she admits to having exchanged emails with Dr Z during January 2017 and I am satisfied on the balance of probabilities based upon the chain of emails in evidence before that the mother did receive a copy of Dr Z’s report emailed to her at the address he had been given by the Independent Children’s Lawyer, that being the same address used by the mother to email Dr Z a matter of weeks before.

8. Finally in paragraph 1 the mother complains about Ms AA, the family consultant and her report because of what she says was her mistaking the date upon which the recovery order made by Cronin J on 29 April 2016 was executed and her having inspected and relied upon documents produced pursuant to a subpoena to Victoria Police in relation to her two adult sons. 

9. As submitted by the mother r 11.12 of the Rules does require amendments to be clearly marked. The example given is that an amendment be made by placing a line thought the test to be changed and underlining the new text using a different type face to indicate the new text. The father in this case has both placed a line through those parts of the application no longer relied upon and has underlined the further amendments he now makes to the documents being the orders he now seeks.

10. The note to Rule 11.10 of the Rules makes it clear that one of the purposes of amending an application is to ensure that the Court determines the real issues between the parties.

11. I am satisfied that the father has complied with the Rules with respect to the Amendment of his application. Those rules also require him to comply by filing a copy of the document he is seeking to amend. He has done so which explains why the Amended Application is dated 14 July 2016 and not 9 December 2016 when it was filed. It also explains why there is no updated certificate from a registered family dispute practitioner. That certificate must be filed with an application however an amended application is not a new application.

12. Although I am satisfied that the father has complied with the Rules even if he had not done so the purpose of the Rules as submitted by counsel for the father is to ensure that each case is resolved in a just and timely manner at a cost to the parties that is reasonable in the circumstances of the case (Rule1.04). It is for that reason the r 1.11 of the Rules provides that the Court may vary or set aside an order and r 11.12 of the Rules provides that the Court may dispense with compliance with the Rules at any time before or after the time for compliance arises.

13. Also as submitted by counsel for the father these are child related proceedings and they must be conducted in accordance with the principles in s 60ZN of Division 12A of the Family Law Act 1975 (Cth) (“the Act”). Of particular relevance in this case is the first principle which requires the Court to consider the needs of the child and the impact the conduct of the proceedings may have on the child, the second principle which is that the Court is to actively direct and control and manage the conduct of the proceedings and the fifth principle which is that proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.  

14. Although the Independent Children’s Lawyer conceded that she had not filed Dr Z’s Affidavit until 9 March 2017 having found that I am satisfied that the mother had received an email copy of Dr Z’s report on 16 February 2017 a little over a month before the commencement of the hearing it is hard to see what prejudice the mother has suffered as a consequence of the late filing of Dr Z’s Affidavit. Apart from her complaint that the Rules should be complied with the mother also did not identify in any real sense any prejudice she has suffered as a result of what she submitted was the father’s failure to comply with the Rules with respect to the filing of his Amended Application.

15. I am satisfied that both the father and the child would on the other hand be prejudiced by the matter proceeding on an undefended basis and that that prejudice would significantly exceed any prejudice to the mother of the matter proceeding on a contested basis. The prejudice to the father is clear and is also relevant to the child’s welfare in circumstances where the child is in his care and has been so since mid- 2016.  

16. Both the mother’s complaint about Ms AA’s understanding as to the date the recovery order was executed and any issue with respect to the documents produced pursuant to subpoena are matters that can be dealt with during the contest hearing of the matter and I am satisfied without prejudice to the mother’s case. They are not relevant in my view for the purposes of the mother’s application to proceed on an undefended basis.

17. In all of the circumstances I propose to dismiss the mother’s application in a case filed 9 March 2017. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 20 March 2017.

Associate:  Laura McDonald

Date:  20 March 2017