Hallan & Alvery
[2025] FedCFamC1F 260
•24 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hallan & Alvery [2025] FedCFamC1F 260
File number(s): MLC 11373 of 2023 Judgment of: CARTER J Date of judgment: 24 April 2025 Catchwords: FAMILY LAW – PARENTING – Where the final hearing was previously adjourned to enable the mother to file her trial material – Where the matter was mentioned to determine whether it was ready to proceed to trial – Where the mother has still not filed her trial material – Where the mother’s representative made an application requesting a further extension for the filing of her trial materials – Where the application was opposed by counsel for the father and the Independent Children’s Lawyer – Application denied. Legislation: Family Law Act 1975 (Cth) s 102
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Cases cited: Pelkas & Dellis [2023] FedCFamC1A 195
Rowe v Stoltze (2013) 45 WAR 116
Strahan & Strahan [2019] FamCAFC 31
Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 22 April 2025 Place: Melbourne Counsel for the Applicant: Mr Dickson KC Solicitor for the Applicant: Lander & Rogers Solicitor for the Respondent: Gad & Co Lawyers Counsel for the Independent Children's Lawyer: Ms Brennan Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 11373 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HALLAN
Applicant
AND: MS ALVERY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CARTER J
DATE OF ORDER:
22 APRIL 2025
THE COURT ORDERS THAT:
1.At the final hearing of the matter commencing 5 May 2025, the respondent’s participation will be limited to the cross examination of witnesses and the making of submissions.
2.The respondent and her representative are granted leave to attend electronically at the final hearing commencing 5 May 2025.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
This matter is listed for a final hearing to commence on 5 May 2025. The matter was listed on 22 April 2025 for mention, in circumstances where the respondent had previously failed to file trial material.
At Court on 22 April 2025, the respondent sought a further extension to file her trial material as she had still failed to file. That oral application was opposed by the applicant. He sought orders be made permitting the matter to proceed in the absence of trial material from the respondent, and that her participation in the trial then be limited to cross examination of the applicant and the witnesses, and to the making of submissions. The Independent Children's Lawyer supported the applicant’s application.
For the reason that follow I am not prepared to make orders to once again extend the time by which the respondent is to file her material. Accordingly, the respondent will not be able to adduce evidence at the final hearing and her participation will be limited to cross examining the witnesses and making submissions.
BACKGROUND
The respondent’s failure to file trial material has extended over five months.
At a hearing on 11 November 2024 the parties attended before Alstergren CJ. Orders were made listing the matter for final hearing on 3 February 2025, for the applicant to file his trial material by 23 December 2024, and for the respondent to file her Amended Response by 18 November 2024 and her trial material by 6 January 2025. The applicant was one day late in complying with the orders but was otherwise ready for the final hearing to commence on 3 February 2025. However, the respondent had not filed any documents at all.
The matter came before me on 28 January 2025. The respondent sought an adjournment of the final hearing and an extension of time to file a Response, her trial affidavit and affidavits of supporting witnesses.
At that time the applicant represented by senior counsel vigorously opposed the granting of an adjournment, pointing to the respondent’s history of non-compliance with Court orders – and noting his own client’s substantial compliance with the filing of material and his readiness for the matter to proceed.
On balance I determined it was appropriate to grant the respondent an adjournment. The final hearing was relisted to commence on 5 May 2025. The respondent was ordered to file an Amended Response, her trial affidavit, a Financial Statement and material from supporting witnesses by 7 April 2025. The applicant then had to file and serve any affidavit in reply no later than 22 April 2025.
In the course of my reasons for judgment given on 28 January 2025, I stated it was most unlikely any further adjournment would be contemplated as the matter needed to proceed to finalisation as soon as practicable. I also said that if material was not filed by the respondent in accordance with the new timetable for filing it was most likely leave would be granted to enable the matter to proceed undefended – or the respondent would be unable to adduce evidence and limited to cross examination of the various witnesses and making submissions.
Indeed, the orders I made on 28 January 2025 included notations to that effect.
The respondent has not complied with the orders for filing at all. She has not filed an amended Response. She has not filed a trial affidavit. She has not filed a Financial Statement. She has not filed any affidavits from supporting witnesses.
SUBMISSIONS ON 22 APRIL 2025
Mr Gad appeared on behalf of the respondent at the mention on 22 April 2025. He had filed a Notice of Address for Service on 18 March 2025. He was unable to advise when funding pursuant to s 102NA of the Family Law Act 1975 (Cth) was confirmed, although he conceded it was likely prior to him filing a Notice of Address for Service.
Senior counsel for the applicant advised that on about 7 April 2025 – being the day that the respondent’s trial material was due to be filed under the extended timetable – correspondence was sent by Mr Gad’s office to the applicant’s solicitors advising that they would be filing a Response the following day and the respondent’s trial affidavit within one to two more days.
Neither of those documents have been filed.
Mr Gad advised he has not commenced a ‘working draft’ of the respondent’s trial affidavit. Although he has prepared a draft Amended Response, he had not been able to obtain instructions from his client to enable him to finalise that document and serve it on the applicant and the Independent Children's Lawyer.
By way of explanation for the delay in filing, Mr Gad advised that the respondent has been experiencing “computer issues”, and that she had been unable to recover her own draft version of a trial affidavit. In addition, he said his client has been moving homes, and that there was a ‘lot of work’ to be done in responding to the Notice to Admit which the applicant had filed.
The explanation proffered by Mr Gad as to the respondent’s failure to finalise her trial material being due to computer issues, or a lack of time is wholly insufficient. As the solicitor on the record, the respondent’s trial material is to be settled by them. Accordingly, the respondent’s inability to provide her solicitors with her ‘draft’ of the affidavit is not relevant. Moreover, the respondent took it upon herself to draft a 57-page document entitled “Sensitive and Confidential Written Submissions of the Mother” which she filed with the Court on 16 April 2025. She also prepared an Application in a Proceeding on her own behalf, filed on 22 April 2025, in which she sought a raft of orders.
Apparently, the respondent’s computer worked sufficiently well for her to prepare this material.
No explanation was given as to why the respondent had the time and ability to prepare an Application in a Proceeding and a 57-page set of submissions, but insufficient time to attend upon her solicitors and provide instructions for the preparation of her trial material.
Whilst Mr Gad sought a further modest extension of time to file his client’s trial material, both senior counsel for the applicant and counsel for the Independent Children's Lawyer urged the Court to find no utility in that further extension. I agree.
DISCUSSION AND DETERMINATION
The respondent did not file an Amended Response on 18 November 2024 as required pursuant to the orders made 11 November 2024. It has been over five months since that Amended Response was to have been filed. The respondent’s failure to file that Response means that less than two weeks before the second time this matter is listed to commence as a final hearing, the applicant still does not know what orders the respondent seeks.
The orders made 11 November 2024 otherwise required the respondent to file her trial material by 6 January 2025 – some 15 weeks ago.
When the matter came before me on 28 January 2025, I adjourned the final hearing and extended the time for the respondent to file her material by almost 10 further weeks – giving her until 7 April 2025.
It is plain the respondent has had ample time to prepare her Response and trial material.
As observed by the Full Court in Pelkas & Dellis [2023] FedCFamC1A 195 at [16]
Directions…are not some form of aspirational guideline that can be ignored with impunity.
The likely consequences of the respondent’s continued failure to abide by Court orders as to the filing of documents was made abundantly clear to her at the hearing on 28 January 2025.
It is important to note that the respondent’s failure to comply with the orders made on 11 November 2024 and 28 January 2025 in relation to filing documents are not her only failures to comply with Court orders and directions or to participate appropriately in these proceedings. Those failings include:
(a)on 9 February 2024 the respondent’s Application in a Proceeding filed 8 February 2024 was dismissed in circumstances where she did not attend Court and her then lawyers were unable to contact her and obtain instructions;
(b)orders made on 5 June 2024 required the respondent to undertake a supervised hair follicle drug and alcohol test and for her to make an appointment for same within two days. A hair follicle test result was not provided until 5 September 2024. The results were positive for illicit substances and alcohol was positive with low to moderate consumption;
(c)the orders of 5 June 2024 also suspended time between the respondent and the parties’ child pending the respondent providing evidence that she had participated in psychiatric assessment and ongoing therapeutic psychiatric treatment for a period of not less than six consecutive weeks. She has not done so;
(d)the Orders made on 5 June 2024 also required the respondent to sign all documents necessary to enable the sale of the property at B Street, Suburb C. The sale documents were ultimately signed by the applicant’s lawyers in October 2024 as the respondent refused to sign them;
(e)on 25 June 2024 the respondent instituted proceedings in the Family Court of Western Australia in relation to the parties’ child, notwithstanding that this Court was seized of the matter. That application was dismissed with costs;
(f)orders made on 20 September 2024 required the respondent to file an Amended Response setting out the precise orders she sought on or before 5 November 2024. She did not comply with this order; and
(g)orders made on 25 October 2024 required the respondent to file an Amended Application in a Proceeding setting out in precise terms the interlocutory orders she sought to be made at a hearing listed on 3 February 2025. She failed to do so. Her Application in a Proceeding was then dismissed.
Additionally, pursuant to orders made 18 September 2024 the parties were to attend upon a Family Report writer for the purposes of the preparation of a Family Report. Despite many efforts being made by the Family Report writer to engage the respondent in a face-to-face interview for the preparation of the report the respondent declined to physically attend.
Pursuant to s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), there is a duty to ensure the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That includes consideration of the efficient use of judicial and administrative resources, and the disposal of all proceedings in a timely manner. Pursuant to the Central Practice Direction, the core principles applicable to family law proceedings include the efficient and effective use of Court resources, the expectation of compliance with orders, that parties and legal representatives be fully prepared for hearings and that parties clearly identify and narrow the issues in dispute. The respondent has not complied with orders. She has not identified the issues in dispute. Conversely, the applicant has substantially complied with orders. He and his representatives are ready and prepared for the hearing.
As observed by the Full Court in Strahan & Strahan [2019] FamCAFC 31 at [61] parties do not have an absolute right to have an action heard. What is required is that each party be provided with a “reasonable opportunity to be heard”. Their Honours went on to quote with approval from Rowe v Stoltze (2013) 45 WAR 116 at [51]:
And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court...What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources… Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period.
As already noted, the respondent has had ample opportunity to put her case. In light of her multiple failures to comply with Court orders and file material I am not satisfied there is any utility in providing her with further opportunities to do so. Her failure to file material was not adequately explained. She has lawyers on the record – who have been on the record now for five weeks. She was represented by other solicitors at the hearing before me on 28 January 2025. There was no suggestion by Mr Gad that the failure to file material was for reasons beyond his client’s control – such as deficiencies in disclosure from the applicant, or any inability of his client to give instructions. Rather, the submissions were that his client had experienced a lack of time and technical issues. As already observed, those difficulties were belied by his client’s own preparation and filing of extensive documents on 16 and 22 April 2025.
The respondent’s trial material was due to be filed two weeks ago under the extended timetable. Had she filed in accordance with my orders extending the time for filing, the applicant would have had the opportunity to respond to the respondent’s documents in an appropriate time frame, with the respondent also having the ability to read and digest the applicant’s responding material in a timely manner prior to the commencement of the proceeding. If time was extended yet again, and material filed in less than two weeks before the trial, the applicant would then be at a disadvantage. He would have very limited time to prepare any responding affidavit. At this stage he does not even know what the respondent is seeking by way of final orders.
The matter involves property and importantly a parenting dispute. The litigation has been on foot for 18 months. When proceedings were instituted, the child was then around one year old. She has been in the primary care of the applicant since October 2023. She currently spends no time with her mother – as the respondent has failed to comply with orders requiring her to engage with a psychiatrist for treatment for at least six consecutive weeks.
As already observed the respondent has been given several indulgences. A trial was vacated to enable her to file material. She was squarely informed as to the likely consequences of her failing, again, to comply with the orders for filing. Conversely, the applicant, who has the sole care of the parties’ young child, has substantially complied with the orders as to filing and is ready for the proceedings to commence.
For these reasons I make the orders as set out.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 24 April 2025
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