Little & Little & Ors

[2017] FamCA 931

FAMILY COURT OF AUSTRALIA

LITTLE & LITTLE AND ORS [2017] FamCA 931

FAMILY LAW – PRACTICE AND PROCEDURE – order that the father file any sworn affidavit he seeks to rely upon – order that if the father fails to file any sworn affidavit the other parties be entitled to proceed on an undefended basis.

Family Law Act 1975 (Cth)

APPLICANT: Ms Little

RESPONDENT: Mr Little

INTERVENORS: Mr Weekes & Ms Polson

INDEPENDENT CHILDREN’S LAWYER: Sofra Solicitors

FILE NUMBER: MLC 7806 of 2011

DATE DELIVERED: 16 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 16 October 2017

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

THE INTERVENORS: In person

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER :

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER :

Sofa Solicitors

Mr Nicholson

Orders

1. That all extant applications be adjourned for hearing, before Johns J at 10.00am on 18 October 2017.

2. That by 3.00pm on 17 October 2017 the respondent husband file and serve any sworn affidavit upon which he seeks to rely in support of his Response to Initiating Application filed 9 June 2017.

   AND THE COURT NOTES that the husband has informed the Court this day that he proposes to file one affidavit in compliance with this order.

3. That in the event that the Respondent husband fails to file any affidavit in accordance with Order 2 hereof:-

   (a)       The husband’s Response to initiating application be struck out; and

   (b)The other parties be entitled to proceed with their applications 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 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 comes before me today for final hearing, in respect of the competing parenting applications, in relation to the four children of the relationship between the applicant and the respondent.  The proceedings have a long history, both in the Federal Circuit Court and in this Court. 

2. The children, the subject of the applications, are B, who is aged almost 15 years; C, who is aged 13; D, who is aged 12; and E, who is aged 10 years.  Currently, the children live with the intervenors, who are the maternal grandfather and his wife. 

3. The children are represented by an Independent Children’s Lawyer.  The applicant, who is the mother; the respondent, the father; and the intervenors are self-represented.

4. The matter has been in my docket since April 2017, having been transferred to this Court, pursuant to orders made by Judge Stewart, in late 2016. 

5. The matter has a sorry history, in terms of the father’s compliance with orders, both of the Federal Circuit Court and this Court.  The father comes before the Court today, having filed no affidavit material in compliance with my trial directions, made on 9 June 2017.  On 21 September 2017, I made further orders, including orders extending the time for the father’s compliance, with an order that he file trial affidavit material.  The time for the father’s compliance with those orders was extended to 9 October 2017.  Notwithstanding that indulgence, the father has still not filed any affidavit material in support of his Response to Initiating Application, filed 9 June 2017.

6. It is as a result of the father’s non-compliance that the Independent Children’s Lawyer makes an application that the father’s response be struck out, that the applicant wife, the intervenors and the Independent Children’s Lawyer have leave to proceed on an undefended basis and, further, that the father have no right of cross-examination of any of the parties. 

7. I have heard submissions this day from counsel appearing for the Independent Children’s Lawyer, as to the reasons why orders should be made in those terms.  I have had detailed submissions from counsel for the Independent Children’s Lawyer as to the history of the father’s non-compliance with orders of this Court.  That history includes a failure to file documents in accordance with orders made on 7 December 2015, on 3 March 2016, on 24 May 2016 and in accordance with the orders that I have made on 9 June 2017 and 21 September 2017.

8. That history also includes a number of occasions where the father simply failed to attend Court events.  His failure to attend Court events included hearings on 17 December 2015, 29 February 2016, 11 May 2016 and 21 July 2016. 

9. I have heard submissions from the father in relation to those matters.  Whilst conceding that he has failed to file documents and appear on the dates identified, he has proffered excuses for his non-compliance with orders.  There is no evidence before me, in respect of the matters alleged by the father, which include matters such as broken down motor vehicles, difficulty with computers and difficulties alleged in respect of his ability to file documents using the Court portal. 

10. As to his noncompliance with my most recent orders of 21 September 2017, the father says that he had attempted to file documents on 9 October 2017 using the Court portal.  For reasons unknown, he was unable to file documents on that date.  He concedes that the documents he has attempted to file have not been served on any of the other parties.

11. Given the seriousness of the nature of the proceedings, which involve future parenting arrangements for the four children of the relationship, in circumstances where there are allegations in respect of family violence, substance abuse and neglect, in my view it is important that the father have the opportunity to file the affidavit material he says he has prepared in answer to the matters raised in the material filed by the other parties.  However, I am also mindful of the impact of these proceedings on the children.

12. Therefore I do not propose to provide any further, significant extension of time.  To do so would be to visit an injustice upon the other parties, who have complied with my directions and, further, it would likely cause delay, which would impact upon the children, who have already had to bear the disruption, uncertainty and likely distress of these proceedings.

13. I raised, in discussion with the father, the possibility of him filing the material he has prepared tomorrow, and giving him the opportunity to put before the Court, the material upon which he seeks to rely.  In doing so, however, I indicated that I was of a mind that if such material was not filed, that I would accede to the application of the Independent Children’s Lawyer to permit the other parties to proceed with their applications on an undefended basis.  The father has agreed that orders in those terms are appropriate.  Given that concession I will make orders in those terms.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 October 2017.

Associate: 

Date:  16 October 2017