Lishman & Ester

[2023] FedCFamC2F 1433

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lishman & Ester [2023] FedCFamC2F 1433

File number(s):

SYC 1736 of 2022

Judgment of:

DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment:

7 November 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter was listed for a procedural hearing – Where the respondent father has previously disengaged from the proceedings – Where the father currently resides in Country B – Where the father has engaged legal representation pursuant to s 102NA of the Family Law Act 1975 (Cth) – Where the father has failed to comply with an order of the court requiring the filing of affidavit setting out his intention of returning to Australia – Parenting orders suspended pursuant to r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 until the father returns to Australia and files a further Application in a Proceeding – Costs reserved.

Legislation:

Family Law Act 1975 (Cth) s 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.27

Cases cited:

Legal Aid ACT & Westwell [2021] FamCAFC 50

Division:

Division 2 Family Law

Number of paragraphs:

10

Date of hearing:

7 November 2023

Place:

Sydney (via videolink)

Solicitor for the Applicant:

Ms Youssef, Marsdens Law Group

Solicitor for the Respondent:

Ms Ziayee, Supreme Justice Lawyers

Solicitor for the Independent Children's Lawyer:

Ms Al Hashimi, Hillcrest Family Lawyers Pty Ltd

ORDERS

SYC 1736 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS LISHMAN

Applicant

AND:

MR ESTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:	7 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The matter remains listed for final hearing on 1 July 2024.

2.All existing parenting orders are suspended, save for Order 21 made on 26 April 2022 until:

(a)The father returns to Australia;

(b)The father files an Application in a Proceeding seeking orders for the recommencement of time and such other parenting orders he seek on an interim basis;

(c)The father files and serves an affidavit in support of the Application in a Proceeding, including addressing the matters in Order 15 made on 10 October 2023.

3.The question of costs are reserved.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MCCLELLAND:

1. On 23 June 2023, orders were made for this matter to be set down for a one day final hearing on 18 October 2023 in circumstances where the father had essentially disengaged from the proceedings following his decision to relocate to Country B.

2. Subsequently, the father has engaged legal assistance through the family violence and cross‑examination of parties scheme pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). The scheme applies when the Court determines that it is inappropriate for a self‑represented litigant to cross-examine another litigant in circumstances where family violence has been alleged.

3. Subsequent to engaging his s 102NA legal representative, the legal representative for the father appeared at a further mention of this matter on 10 October 2023, indicating that the father wished to continue to prosecute the orders that he was seeking and, on that basis, the Court made orders confirming the listing of the matter for final hearing on 1 July 2024 and for the filing of the respective trial materials. On that day, I also made Order 15, which is as follows:

   15.By 4.00 pm on 5 November 2023, the father is to file an affidavit addressing the following:

   a.Confirming that he has returned to live in Australia;

   b.His intention to live permanently in Australia;

   c.What his current accommodation arrangements are as at 5 November 2023;

   d.What means of support he has to support the children in the event that he continues to live in Australia, including at times when the children are spending time with him.

4. The father has not complied with that order. Instead, the father filed a Request to Attend by Electronic Communication on 1 November 2023 which attached a medical certificate dated 10 October 2023, the same day that the matter was last before the Court, indicating that he had an injury which precluded him from travelling from Country B to Australia.

5. It is understandable that an injury of that nature would potentially restrict the father’s ability to travel. However, I take judicial notice of the fact that airlines generally have policies in place to assist passengers who are disabled, or temporarily disabled, to board and disembark from an aircraft. Nevertheless, I accept that the father’s injury may have, to some degree, impeded his travel.

6. What is relevant, however, is that the injury did not impede the father’s ability to write nor to dictate to his legal representatives, even over the telephone, the information required to comply with Order 15 of the orders made on 10 October 2023.

7. In those circumstances, r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) empowers the court to make appropriate orders in circumstances where a party has defaulted in their requirement to comply with an order. In the circumstances where the father has failed to comply with Order 15 of the orders made on 10 October 2023, and in circumstances where his explanation for failing to do so is inadequate, I order that all existing parenting orders are suspended until:

   (a)The father returns to Australia;

   (b)The father files an Application in a Proceeding seeking orders for the recommencement of the children’s time with the father and such other parenting orders that he seeks on an interim basis;

   (c)He files and serves an affidavit in support of his Application in a Proceeding, including addressing the matters that were referred to in Order 15 of the orders made on 10 October 2023.

8. The additional order I make is that in the interim, Order 21 of the orders made on 26 April 2022 will continue to apply and for clarity, that order is as follows:

   Both parties will do all acts and things to facilitate the children communicating with the other parent when the children are in their care by telephone/Skype/Facetime or other electronic communication device / App as the children may reasonably request.

9. The additional order I make is in circumstances where this mention has essentially been rendered unnecessary as a result of the father’s noncompliance with Order 15 of the orders made on 10 October 2023. I therefore reserve the question of costs. In that respect, and I note that the Full Court has determined that a party can be required to pay the costs of other parties to the proceedings despite having legal representation paid by Legal Aid NSW in circumstances where that legal representation is pursuant to s 102NA scheme: Legal Aid ACT & Westwell [2021] FamCAFC 50 at [40].

10. Accordingly, I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Deputy Chief Judge McClelland.

Associate:

Dated:       29 November 2023