Kabat & Anor and Garacia (No 2)

[2019] FamCA 504

FAMILY COURT OF AUSTRALIA

KABAT AND ANOR & GARACIA (NO. 2) [2019] FamCA 504

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Where the second applicant makes an oral application to read and file further affidavits on the second day of trial – Where the application is dismissed.

FIRST APPLICANT: Mr Kabat

SECOND APPLICANT: Ms Kabat

RESPONDENT: Ms Garacia

INDEPENDENT CHILDREN’S LAWYER: Ms Bookallil

FILE NUMBER: BRC 7499 of 2017

DATE DELIVERED: 4 June 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 4 June 2019

REPRESENTATION

FOR THE FIRST APPLICANT: Self-represented

FOR THE SECOND APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: KLM Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Minnery

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Burchill & Horsey Lawyers

Orders

1. The second applicant’s oral application to read and file further affidavits is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kabat & Garacia 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 7499 of 2017

Mr Kabat

First Applicant

And

Ms Kabat

Second Applicant

And

Ms Garacia

Respondent

And

Independent Children’s Lawyers

EX TEMPORE REASONS FOR JUDGMENT

1. The second applicant in these proceedings, Ms Kabat, is the mother of the father in the proceedings, Mr Kabat.  On the second day of trial, Ms Kabat seeks leave to rely upon affidavit material to support an oral application (which I granted her leave to make yesterday) to spend time with her grandchildren each week. 

2. Ms Kabat was joined as a party in these proceedings by consent on 20 February 2019 and trial directions were made on that date for the timely filing of affidavit material. I note that the second applicant did not appear on the occasion when those orders were made, in particular, the order by consent that she be joined as a party.

3. The matter came back before me on 21 May 2019 for, effectively, a compliance hearing, when it was clear that neither the father nor his mother had filed material as required by the trial directions made by me in February.  Extensions of time were granted.  The second applicant was present on the occasion that I made that Order extending time for filing and, although she did not have the assistance of a Court provided interpreter, she attended with her son, who has a very good command of the English language.  Despite the extension of time granted to the second applicant to file any affidavit material upon which she intended to rely by 27 May 2019, that date came and went and she did not do so.

4. The matter next came before the Court for a compliance hearing before a registrar on 28 May 2019 and Ms Kabat failed to appear at that hearing.  A notation to the Order made indicates that attempts were made to contact the Ms Kabat by telephone and that there was no success in making contact with her. 

5. The Court has provided a Language O interpreter for Ms Kabat in these proceedings and when it was indicated to me yesterday that she wished to rely upon an affidavit that had apparently been sworn by her on 28 November 2018, I gave her the opportunity to have that affidavit translated to her so that she could indicate to the Court that she had understood it and was able to swear to the truth of its contents.

6. This morning, Ms Kabat initially sought to rely upon one affidavit only, which was sworn this morning.  It contains a short statement both in the Language O and English and it has been translated by the Court provided interpreter.  When I noted that the content of that affidavit refers to an earlier affidavit that I do not have, I received from Ms Kabat another two affidavits, one said to have been sworn on 8 May 2019 and one said to have been sworn on 28 November 2018.  I say ‘said to be sworn’ because neither of those affidavits have any indication on them that they have been translated from English to Language O to Ms Kabat such that she understood the contents and was able to swear to the truth of them.

7. When I inquired from the second applicant why she had not taken the opportunity to have at least the November 2018 affidavit translated to her, she indicated, through the interpreter, that there was insufficient time. 

8. The application to rely upon these three affidavits of the second applicant is objected to by both counsel for the mother and counsel for the independent children’s lawyer (“ICL”) on a number of grounds.  Firstly, that the second applicant has failed to comply on a number of occasions with trial directions.  Secondly, neither the mother nor the ICL have been served with a copy of the affidavit signed 8 May 2019.

9. It is submitted that the content of the affidavits of 4 June 2019 and 28 November 2018 are of no probative value.  Counsel for the ICL submits that it would be unfair to the parties - the mother and, indeed, the ICL - to receive the evidence this late in the proceedings, even if the difficulties about its translation etc. could be overcome and that this matter was expedited for trial in December last year, so it was given priority.  It is a matter that requires a determination for the children’s sake and the ICL, in particular, submitted that the content of the affidavit of November did not provide any probative relevant evidence that would assist in my determination of what is in the best interests of the children in this case.

10. The father submits that I should receive the affidavits or at least the photographs annexed to the 28 November 2018 affidavit.  He submits that the failure of his mother to comply with the directions to file material really rests with him, as he says that his mother relies upon him and has asked for his assistance and he was unable to provide that assistance in a timely way.  He submits that the content of the November 2018 affidavit has some text messages which show, he says, that his former wife was violent.  He says that he translated the affidavit to his mother and she understood its contents.

11. Given the submissions from the father that there was, indeed, some evidence of probative value in the affidavits, I have read them.  I do not propose to permit the second applicant to rely upon the affidavits for the following reasons.

12. Firstly, trial directions were made.  Extensions of time were granted to the second applicant to comply with those trial directions.  She was provided yesterday with a further opportunity to put her affidavit evidence in order such that it could be received into evidence on a basis that it contained evidence that she understood and was able to swear to the contents of it. She has failed to do so.  The Court makes orders and expects them to be complied with so that all parties involved in a trial can have a fair hearing. 

13. Having reviewed the content of the affidavits, even if Ms Kabat could overcome the difficulties of persuading me that she understood the contents of them, the affidavits are largely argumentative.  They contain opinion, conclusion, speculation, submission, and hearsay upon hearsay.  They are very much focused on the wrongs that she perceives have been done to her son, both by the mother and others, including judiciary, Legal Aid, a family report writer, and lawyers who have represented the mother.  There are numerous accusations made of various people lying, which has, of course, a familiar theme about it - a theme pressed by the father in his material.  The documents include some text messages which were sent by the mother or the father to each other.  They are not documents created by the second applicant.  There are a number of photos purporting to date back over a number of years that show, I assume, the children with Ms Kabat in happy circumstances.  But that of itself does not assist me in determining what order I should make in the best interests of these children.

14. I also note that the purported affidavit from November 2018 has a number of handwritten comments on it which appear, on their face, to amend the affidavit that was ‘sworn’ to.  There are also question marks variously placed throughout the affidavit.

15. For those reasons, I will return these affidavits to the second applicant and refuse her application to rely upon them.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 4 June 2018.

Associate:

Date:  31 July 2019