HARROW & EATON

[2019] FamCA 305

FAMILY COURT OF AUSTRALIA

HARROW & EATON [2019] FamCA 305

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to file a Response and affidavit sought on the first morning of trial – leave refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Harrow

RESPONDENT: Mr Eton

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

FILE NUMBER: BRC 6 of 2012

DATE DELIVERED: 7 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 7 May 2019

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Murphy

INDEPENDENT CHILDREN’S LAWYER Norman & Kingston

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrow & Eton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6 of 2012

Ms Harrow

Applicant

And

Mr Eton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application by Mr Eton seeking leave to file and rely upon a document entitled Response to an Application in a Case bearing the date 6 May 2019.  The application for leave encompasses also an affidavit by Mr Eton, sworn by him on 7 May 2019.  For the purpose of the record, so that these Reasons can properly be understood, I will mark those documents collectively as Exhibit A in the proceedings.

2. Such application is necessary because, on 8 February 2019 – in the course of setting this matter for final hearing before me for one day commencing at 10.00 am this morning – I made a series of orders and directions in relation to the filing and service by the parties of material. 

3. Clause 6 of the order made on 8 February 2019 is in these terms:

   By no later than 4.00 pm on 16 April 2019, the Respondent file and serve a Response to the Initiating Application.

4. Clause 7 of the order made on 8 February 2019 is in these terms:

   By no later than 4.00 pm on 16 April 2019, save for the Independent Children's Lawyer, the parties file and serve any updating affidavit material on which they intend to rely at final hearing.

5. Mr Eton’s application for leave to file and read each of the documents which comprise Exhibit A falls to be considered in the context of such existing order. 

6. The other relevant aspect of the order made on 8 February 2019 is that which is contained within order 14, which is in the following terms:

   The parties without the leave of the Court not be permitted to rely upon any affidavit not filed in compliance with Trial Directions.

7. Further relevant matters to be taken into account in determining the exercise of discretion enlivened by Mr Eton’s application for leave to file and read a Response and to file and read the affidavit sought to be relied upon follow. 

8. I adopt and accept the chronology of orders and directions advanced by Counsel for the Independent Children's Lawyer in the course of her submissions.

9. I accept, therefore, that it is clear that there has been accorded to Mr Eton on a number of occasions, by way of previous orders made in the proceeding, the opportunity to file a Response and to file affidavit material.  I also accept that there has been non-compliance by Mr Eton in relation to the orders previously made and in relation to the order I made in February of this year.  That is, of course, a relevant consideration in the exercise of discretion.

10. Further relevant considerations are, in my view, the length of time over which the proceedings have been before the Court.  Whilst initially commenced in the Federal Circuit Court, reference to the orders previously made establishes that there have been previous orders made by Judge Howard.  The matter was transferred to this Court.  Orders were made by, it seems, Bell J.  There were applications previously heard and determined in relation to the proceedings.

11. It is an accepted fact that Z has not seen or communicated, it seems, with her father since May 2014.  A further relevant consideration is her age and that she has relatively recently just turned 17 years of age. 

12. I consider a further relevant aspect of the proceedings to be that it seems that the first time Mr Eton has sought to comply with previous orders and my order in relation to the filing of a Response document is in that document in respect of which leave is sought this morning.  Reference to it establishes that the orders sought include that the Court make an order that Z live with her father and that she undergo family therapy sessions with her father and paternal family. 

13. The most recent report prepared by Ms C involved an interview only of Z in relation to obtaining evidence of her views, given her age. 

14. I consider that the orders advanced within the Response document which comprises part of Exhibit A fundamentally changes the litigation as between these parents.  It is only at this time that it is apparent that the father seeks a change in the longstanding primary parenting regime in which Z has lived for the entirety of her life.

15. Taking into account:

    a)the Court’s obligation to actively manage proceedings; and

    b)the Court’s obligation to concluding proceedings as soon as reasonably practicable – in essence, the requirement imposed by the legislation in relation to the principles for conducting child-related proceedings as prescribed by s 69ZN of the Act, and, in particular, the first principle contained within s 69ZN(3) of the Act, being that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceeding;  and

    c)that statutory obligation in the context of the contents of Ms C’s most recent report (Exhibit 1 in the proceedings) and her reporting of Z’s comment to her, when interviewed on 21 February of this year, to the effect that she just wants “it” – which I take to be a reference to the current proceedings – to be over,

    I am not persuaded to exercise a discretion in favour of according to the father leave to file and rely upon the Response document, nor to file and rely upon the affidavit sworn by him today.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 May 2019.

Associate: 

Date:              7 May 2019