HABEL & FARNSWORTH (No.2)

[2021] FCCA 633

FEDERAL CIRCUIT COURT OF AUSTRALIA

HABEL & FARNSWORTH (No.2) [2021] FCCA 633

Catchwords:
FAMILY LAW – Practice and Procedure – undefended hearings – consideration as to whether or not the father should be granted leave to file an affidavit to rely upon at an undefended hearing in circumstances where the father is the ‘excluded party’ by the Order setting the matter down for the undefended hearing – held, leave refused.   

Legislation:

Family Law Act 1975, Part VII

Family Law Rules 2004, r.11.02

Cases cited:

Tate & Tate [2000] FamCA 1040

Zane v Allan (2008) FLC 93-378
A v Z (2006) 198 FLR 152
Chranley v Smart (2012) 47 Fam LR 581

Applicant: MS HABEL

Respondent: MR FARNSWORTH

File Number: BRC 8498 of 2008

Judgment of: Judge Howard

Hearing date: 17 February 2021

Date of Last Submission: 17 February 2021

Delivered at: Brisbane

Delivered on: 1 April 2021

REPRESENTATION

The Applicant attending as a self-represented litigant.

The Respondent attending as a self-represented litigant.

Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland

ORDERS

1. That this matter be set down for an Undefended Hearing commencing at 9:30am on 28 June 2021 in the Federal Circuit Court of Australia at Brisbane.

2. That the father’s oral application made to the Court on 17 February 2021 seeking the leave of the Court to file an affidavit to be relied upon by him at the Undefended Hearing is dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Habel & Farnsworth (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8498 of 2008

MS HABEL

Applicant

And

MR FARNSWORTH

Respondent

REASONS FOR JUDGMENT

1. This matter came on before the Court on 17 February 2021.  On that day, the matter had been listed for interim hearing.  The mother attended as a self-represented litigant.  The mother is the applicant.  The respondent father attended by telephone (self-represented) from Perth, Western Australia.  The Independent Children's Lawyer in the case is Ms Anthea Walsh of Legal Aid Queensland.  I delivered Reasons for Judgment ex-tempore on 17 February 2021 on what was, essentially, an application by the mother (and supported by the Independent Children's Lawyer) for the matter to proceed as an undefended hearing.  I came to the conclusion that the matter should proceed as an undefended hearing but that it should be set down for hearing on another date – to give the father time to consider the precise terms of orders sought and to make oral submissions.  I repeat and rely upon the Reasons for Judgment delivered ex-tempore on 17 February 2021.

2. On that occasion I reserved the further question as to whether or not the father would be granted leave to file an affidavit.  These Reasons for Judgment primarily relate to that reserved question.  This family has a long history of litigation in family law.  The proceedings relate to one child, X (born in 2008) who is the child of the parties.  Proceedings first commenced in relation to the child as long ago as 2010.  A final order was made by the Court in December 2012.  But as early as March 2013 the matter was back before the Court and litigation ensued for several more years leading to a final order made on 24 April 2017.

3. The mother filed a further application on 30 July 2020.  The father was served on 31st of July 2020.  The father did not file a response document.  The matter came before the Court on 7 September 2020 and (as noted in the earlier Reasons for Judgment) the father was given a further period of time to file and serve a response document.  He did not do so.  That time expired in October 2020.

4. On 13 October 2020, the Court issued an order from chambers setting the matter down for an interim hearing to take place at 9:30a.m. on 18 November 2020 and certain directions were given, including an order for the filing of affidavit material.  The affidavit material ordered to be filed on 13 October 2020 related to the interim hearing.

5. The mother filed material.  The father did not.  Unfortunately, due to the necessity of obtaining a Covid-19 test in November 2020 the Court was unable to sit on 18 November 2020 and the matter was adjourned to 17 February 2021. 

6. By 17 February 2021 the father had still not filed a response and nor had he filed any notice of risk or affidavit.  As noted earlier, the Court decided on 17 February 2021 that the matter should be set down for an undefended hearing.

7. The father is a self-represented litigant and, essentially applied for leave of the Court to file an affidavit and rely upon that affidavit at the undefended hearing.  I had explained to the father on 17 February 2021 that he would be entitled to make oral submissions at the undefended hearing.

8. As to the father’s oral application to file an affidavit – the view that I have formed is that it is not appropriate for the Court to grant leave to the father to file such an affidavit.  The Court has reached a conclusion that the matter should proceed on an undefended basis.  The father has disengaged from the proceedings.  The father has failed to comply with Court orders.  The father has not filed a response – despite the fact that he was served with the initiating application 6 and a half months ago.

9. In Tate & Tate [2000] FamCA 1040 and Zane v Allan (2008) FLC 93-378 – the Full Court of the Family Court made it clear that it is a matter of discretion for the trial judge to determine to what extent a party may continue to participate in the proceedings following the making of an order that the matter proceed on an undefended basis.

10. In Tate & Tate the Full Court pointed out that orders of the Court must be followed.  I note paragraphs 74 and 75 of the decision in Tate & Tate where the Full Court stated:-

    “74. The interlocutory orders made by the trial judge by way of case management, were no less orders of the court. They were entitled to full and punctilious obedience. This court has a duty to order its business with justice according to law. The Rules of Court are there to assist in the fair and timely preparation of matters for expeditious trial. Litigants in such matters also have the duty of full and frank — and we would add prompt — disclosure of relevant financial matters. Against that background the trial judge’s specific orders achieved an even greater potency. They did not have to be expressed as “unless” or “guillotine” orders: they were interlocutory orders of a judge of a superior court of record and to be obeyed as such according to their terms, which included specific times for performance.

    75. It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them. Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis. That is not only because it is contemptuous of the court’s orders. It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the court can hear them. The luxury of procrastination — let alone deliberate disobedience — is a luxury of the past if it ever existed.”

11. The father has simply ignored the orders of the Court in this case. 

12. It is apparent from the decision in A v Z (2006) 198 FLR 152 at paragraph 73 that if a Court has ordered that an applicant’s case shall proceed against the respondent on an undefended basis – in the event the respondent had already filed an affidavit – the applicant may nonetheless “read” the respondent's affidavit in the applicant's case at the undefended hearing.

13. But it seems to me that if (in the above example) a respondent has already filed an affidavit in the proceedings – that respondent (against whom the case is proceeding undefended) is not entitled to “read” (i.e. rely upon) his or her own affidavit.

14. Accordingly, the view that I have formed is that having reached the conclusion that the matter should proceed against the father on an undefended basis – he ought not be granted leave to file an affidavit.  The father has, of course, had 6 and a half months to file an affidavit.  He has not done so.  The Court has determined the matter should proceed on an undefended basis.  The father's application for leave to file an affidavit is refused.

15. If I am wrong in my explanation of the possible procedures – it will make no difference in the present case.

16. The father shall not be granted leave to file an affidavit and a summary of the reasons why is as follows:-

    a)The father, in contumelious disregard of the Court orders, has failed to file a response.  He has also failed to file an affidavit.  The father has also failed to file a notice of risk.  The father has not provided any convincing submissions as to why this is so.

    b)The history of litigation between these parents shows that for the best part of 11 years they have been locked in the family law system litigating parenting arrangements for the child, X;

    c)Apart from the fact that the father has completely disregarded the Court orders – it should be noted that he has had 6 and a half months to file a response and has failed to do so;

    d)The best interests of the child is “the overriding issue” – as noted by the Full Court in Chranley v Smart (2012) 47 Fam LR 581. Finalising this matter by way of an undefended hearing is clearly in the best interests of X – especially having regard to the fact that her parents have been (more or less) locked in family law litigation for the best part of 11 years.;

    e)The child’s wishes were stated to the family consultant and the consultant's memo will be in evidence at the undefended hearing.  The child does not wish to have contact with the father.  The child is about to turn 13 years of age in 2021;

    f)To grant the father leave to file an affidavit would be to unnecessarily complicate the matter and potentially delay it further – this is because the mother has indicated she would want a chance to respond to the further affidavit.  Further expense and further delay is not in the best interests of the child in this matter;

    g)The parties will not be permitted to cross-examine at the undefended hearing.  This is generally the practice in this jurisdiction when an undefended hearing is listed; and

    h)All parties – including the father – will be permitted to appear at the undefended hearing and make oral submissions.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 1 April 2021