Little and Little and Ors (No. 2)

[2017] FamCA 969

FAMILY COURT OF AUSTRALIA

LITTLE & LITTLE & ORS (NO. 2) [2017] FamCA 969

FAMILY LAW – PRACTICE AND PROCEDURE – the father’s response be struck out – that the matter proceed on an undefended basis.

Family Law Act 1975 (Cth)

APPLICANT: Ms Little

RESPONDENT: Mr Little

INTERVENOR: Mr Weekes & Ms Polson

INDEPENDENT CHILDREN’S LAWYER: Sofra Solicitors

FILE NUMBER: MLC 7806 of 2011

DATE DELIVERED: 18 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 October 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

THE INTERVENORS:

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER :

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER :

Sofa Solicitors

Mr Nicholson

In Person

Sofra Solicitors

Mr Nicholson

Orders

1. The husband’s Response to Initiating Application filed 9 June 2017 be struck out.

2. The matter proceed on an undefended basis.

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 Little & Little and Ors (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 7806 of 2011

Ms Little

Applicant

And

Mr Little

Respondent

And

Mr Weekes & Ms Polson
Intervenors

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Little, Weekes and Polson comes before me today, having been adjourned by me, to this date, on 16 October 2017.  On that day I made orders requiring the respondent husband to file and serve any sworn affidavit upon which he seeks to rely, in support of his Response to Initiating Application filed 9 June 2017, that affidavit to be filed and served by 3pm on 17 October 2017.  There is a notation to that order, to the effect that the husband has informed the Court this day that he proposes to file one affidavit, in compliance with this order.  Order 3 of the orders made on 16 October 2017 provides:

   That in the event that the Respondent husband fails to file any affidavits in accordance with order 2 hereof:-

   (a)The husband’s Response to Initiating Application be struck out;

   (b)The other parties be entitled to proceed with their applications on an undefended basis.

2. The order requiring the husband to file a sworn affidavit has not been complied with.  No documents were filed by or on behalf of the husband by 3pm on 17 October 2017.  Today, at 8.03am, the husband has filed a Response to Initiating Application.  That document is identical in form to the two previous responses filed by the husband, on 10 August 2016, and 9 June 2017, up to paragraph 19 of the document.  Paragraph 19 of the document, which is at page 6 of 20 of the document filed, asks the question “Are there any facts in the Initiating Application which are not agreed?”

3. The answer contained in the document filed is “YES” (emphasis in original) and at paragraph 19A, Details of Facts in Dispute, it states “See next page for attached details for facts in dispute”.  What there follows, from page 7 to 15 of the document is a copy of an unsworn affidavit, filed via the husband in the Federal Circuit Court, on 10 August 2016.  It is an unsworn affidavit.

4. From page 16 to 17, the husband there sets out particulars, at part E, of other court cases and orders.  That part of the document sets out the position in relation to proceedings in the F Town Local Court and the G Town Magistrates’ Court. 

5. The response filed is unsigned.  The document does not comply with the orders made by me, on 16 October 2017.  The position remains the same.  That is, that the husband has filed no sworn document in support of his Response to Initiating Application. 

6. I refer to and repeat my reasons for judgment in relation to the first orders, made on 16 October 2017, which set out the sorry history of the husband’s actions, in terms of failing to comply with orders that he file material in these proceedings.  Those reasons also set out the history of the husband’s failure to attend at various court events.

7. The issues before this Court relate to the ongoing parenting arrangements for the children of the marriage:  B, who is 15; C, aged 13; D, aged 12 and E, aged 10.  There are two detailed family reports, which set out the observations and recommendations of the family consultant in relation to the children.  What is clear, particularly from the most recent family report, dated 1 September 2017, is that these children require certainty and stability moving forward.  The spectre of these Court proceedings is unsettling and distressing to them.  The proceedings need to have a conclusion. 

8. The husband has had repeated opportunity to engage in the Court process, to participate and to file evidence in support of his position.  He has not done so.

9. The Independent Children’s Lawyer seeks to proceed with the matter on an undefended basis.  That was an application made on 16 October 2017.  The orders made by me on 16 October 2017 were made against a backdrop where the husband submitted that he had prepared trial affidavit material and had attempted to file that material in the court portal on 9 October 2017.  The submissions of the husband indicated that the material prepared by him was material responding to the trial affidavits of the other parties.

10. In circumstances where that submission was made, and where the husband confirmed that he would be able to print those documents and file them the following day, I made orders, firstly adjourning proceedings to this day and, secondly requiring him to swear and file his affidavit by 3pm on 17 October 2017.  The husband has not complied with that order.  In the circumstances, and having regard to the history, I am satisfied that the time has come for this matter to be brought to a conclusion and, therefore, I make orders that the husband’s response to initiating application filed 9 June 2017 be struck out and that the  matter proceed on an undefended basis.

11. I should note by way of background that during the course of the hearing on 16 October 2017, I was informed that the father had filed an unsworn affidavit on 10 August 2016.  During the luncheon adjournment on 16 October 2017, I read that affidavit and after the luncheon adjournment, raised with the husband the question of whether or not he sought the opportunity to rely on that affidavit.  I was informed by the husband that he had prepared a detailed responding affidavit, that affidavit responding to the trial affidavits of the other parties, and that that was the document he sought to rely upon.  It was in those circumstances that orders were made, giving him the opportunity to swear and file the affidavit he had prepared in response, rather than relying upon the earlier affidavit, which was unsworn but filed on 10 August 2016.

12. I note that prior to making those orders, I indicated to the husband that the matter could proceed on the basis that he swear and adopt the contents of his affidavit of 10 August 2016 in the witness box, and that the matter could proceed on that basis.  That opportunity was declined by the husband, on the basis that he would swear and file the more detailed affidavit he had prepared in response to the trial affidavit material.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 October 2017.

Associate: 

Date:  18 October 2017