Mady & Farha (No 3)
[2023] FedCFamC1F 379
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mady & Farha (No 3) [2023] FedCFamC1F 379
File number(s): SYC 5754 of 2018 Judgment of: CAMPTON J Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Part-heard trial – Application to adjourn the trial for one day to allow the father’s legal representatives time to have documents filed or tendered in the proceedings translated to him – Where the trial was previously adjourned for a period of 12 months, in part because the family report had not been translated to the father – Where the father has not complied with various procedural and interlocutory orders in the lead-up to the part-heard trial – Where the father’s legal representatives have assured the Court that the necessary documents will be translated if Court is adjourned by one day – Adjournment granted. Legislation: Family Law Act 1975 (Cth) s 102NA Cases cited: Mady & Farha [2022] FedCFamC1F 306 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 15 May 2023 Place: Sydney Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Legal Aid NSW Domestic Violence Unit Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers ORDERS
SYC 5754 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MADY
Applicant
AND: MS FARHA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
15 MAY 2023
THE COURT ORDERS THAT:
1.The father be granted leave to make an oral application to adjourn the trial to commence at 10.00 am by way of his cross-examination continuing tomorrow.
2.The trial is adjourned to recommence at 10.00 am tomorrow, 16 May 2023.
3.The father is to serve upon the mother’s legal representatives and upon the Independent Children’s Lawyer on or before 9.30am on 16 May 2023 a minute setting out with precision his final parenting orders as sought and a proof of the oral evidence which he proposes subject to leave giving in chief.
4.The objection (if any) as taken by the father to the report of the mother’s recently deceased therapist forming annexures E and F of the mother’s affidavit filed on 10 May 2023 and the mother’s objection to the report of Dr O dated 29 September 2022 as annexed to the father’s affidavit filed 10 October 2022 together with the oral application of the mother for leave to rely on paragraphs 59–63 of her affidavit filed 10 May 2023 be adjourned until tomorrow 16 May 2023.
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 the pseudonym Mady & Farha has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Subsequent to their commencement in what was then the Federal Circuit Court of Australia on 7 September 2018, these proceedings as to the parenting of X, born in 2014, were initially listed for final hearing over five days before me commencing on 9 May 2022.
The parents effected a separation shortly after they came to Australia as refugees in 2018. X has lived with the mother since that time. She has not spent time with the father since November 2020.
The primary language for communication of each of the parents, both orally and in reading and writing, is Language B. The mother’s English skills language skills have improved in recent times.
The trial commenced before me on 9 May 2022. A large volume of documents were tendered into evidence and the cross-examination of the father commenced. During the course of his oral evidence, the father said that various documents in the proceedings had not been translated to him.
On 10 May 2022, for reasons then delivered, orders were made adjourning the trial part-heard. This decision assumes familiarity with those reasons, being Mady & Farha [2022] FedCFamC1F 306 (“the adjournment reasons”), and particularly the following:
5.The nature of the competing relief of each of the parents at the commencement of the trial was extreme. The father, by way of Exhibit F2, sought orders for the equal sharing of parental responsibility for [X], for [X] to live with the mother and to spend time with him on an incremental and graduated basis, starting with supervision by a community service supervision service, then by way of supervision through his sister-in-law and thereafter for unsupervised time, including overnight time on weekends and during school holidays. The relief sought by the mother was at the opposite end of the spectrum. She sought an orders that she have sole parental responsibility for [X], for [X] to live with her, and for there to be no contact or communications between [X] and her father. She also sought injunctive orders for the personal protection of both she and [X].
6.The parties’ relationship subsequent to separation has been characterised by the father being convicted of what has been described in the evidence thus far as “a common assault” occasioned upon the mother on the date of separation, as to what might also then be described as a first tranche of two breaches of an Apprehended Violence Order and then a second tranche of breach of an apprehended violence order.
7.Evidence from the Court Child Expert, [Ms G], has been the subject of tender, being:
•A Child Dispute Conference Memorandum dated 13 December 2018 (“the CDC Memorandum”);
•A family report dated 30 November 2020 (“the family report”); and
•A further family report dated 19 April 2022 (“the updated family report”).
8.The evidence of the Court Child Expert contains a significant volume of detail and evaluation.
9.A number of documents were marked into evidence as exhibits in these proceedings, tendered by the Independent Children’s Lawyer, including documents produced on subpoena issued to [F Contact Service], the New South Wales Police, the Department of Communities and Justice, [H Hospital], [J Court] and [K Family Services], a community-based supervising of time organisation. It is anticipated that further documents produced by a counsellor or therapist attended upon by the father will also be placed into evidence.
10.The father, as the applicant in the proceedings, commenced his oral evidence yesterday, being the first day of the five day trial. The father is giving his oral evidence with the assistance of a [Language B] interpreter. During the course of the afternoon yesterday the father said that the two family reports of the Court Child Expert had not been read to him in [Language B], or translated for him into [Language B], and that he had “no idea what was in the reports.”
11.It later emerged that the father had not had translated to him in [Language B] the mother’s trial affidavit evidence, or that her affidavit had not been read to him in [Language B].
The adjournment reasons were cast against the extreme parameters of relief as sought by each parent in respect of the future parenting of X as identified at [5] therein. Having regard to those extreme positions, consistent with what was identified in the adjournment reasons, it is fundamental that litigants before the Court are entitled to receive fair and appropriate notice of the evidence to be agitated and that fundamental requirement for fairness is highlighted having regard to the circumstances confronting the parents and X by way of this litigation.
There is no doubt that the obligation rests with the father’s legal representatives to protect and promote his interests in these proceedings.
Subsequent to the adjournment reasons, the proceedings have been characterised by a number of further procedural and interlocutory determinations, including:
(a)a further interlocutory hearing following which a range of orders were made on 12 May 2022;
(b)further orders made on the listing before me on 28 October 2022;
(c)orders as to the requirements of s 102NA of the Family Law Act 1975 (Cth) and further trial management orders of 22 November 2022;
(d)a defended hearing as to international travel concluded by way of orders made and reasons delivered on 20 December 2022; and most recently
(e)further trial management orders made on 17 April 2023.
Notwithstanding the substantial investment by the court in the conduct of the litigation, the efforts of the legal representatives of mother and the Independent Children’s Lawyer (“ICL”), for reasons that are yet to be explained, the current solicitors on the record for the father:
(a)failed or neglected to inspect the Court file on receiving instructions;
(b)did not consider it appropriate to obtain access to the large number of exhibits tendered in the proceedings to date; and
(c)have yet to assist the father in the translation from English into Language B of the first family report dated 30 November 2020 (Exhibit C2), the affidavit of the mother filed and served last Wednesday, 10 May 2023, and potentially the exhibits tendered to date originating from the ICL’s tender bundle marked MFI-A.
The father has not complied with Order 2 made 17 April 2023 requiring him to file an updating affidavit as to relevant matters subsequent to 12 May 2022, nor has he filed an affidavit of the therapist engaged by him pursuant to the orders made on 12 May 2022.
Over the course of the hearing today, difficulty has been encountered in the father producing a proof of evidence to support an oral application I am told he will make for the purposes of adducing further evidence in chief, and as to any variation of his final parenting orders as sought. His final relief may or may not be reflected in Exhibits F2, F3 and F4, tendered in the prior tranche of trial.
In those circumstances, counsel for the father courageously this afternoon made an oral application for the trial to be adjourned until 10.00 am tomorrow morning, at which time the further cross-examination of the father will begin. I am told by counsel for the father and accept his assurance that capacity exists for the father to have the benefit of translation of the documents identified earlier in these reasons to be translated, that his proof of evidence will be served and available to the Court, and that his Minute of parenting orders sought (if varied) will be finalised all by that time tomorrow.
Quite properly, having regard to the relief prosecuted by the mother, her counsel today did not wish to be heard against the father’s oral application for a brief adjournment of the trial. She helpfully identified her cross-examination of the father will be completed by lunch tomorrow, allowing the ICL’s cross-examination of the father thereafter to continue, with the father’s possible supplementary witnesses to be completed either later tomorrow or on Wednesday morning. It is anticipated that the cross-examination of the mother will occupy most of Wednesday, and the cross-examination of the Court Child Expert shall occur on Thursday, with oral submissions to be made on Friday. A trial plan has been produced today by the legal representatives. That plan supports the provision of time and acceding to the father’s oral application for a brief adjournment. The ICL also identified some ambiguity in relation to the father’s anticipated final relief sought, as advised today, and was anxious to ensure exhibits had been translated to the father.
I am satisfied in the circumstances, having regard to the assurances provided by counsel for the father, that it is in the interests of justice and the interests of X to grant the adjournment until 10.00 am tomorrow morning, but on conditions that I will incorporate in orders to ensure that the matter can continue at that time.
For those reasons, I make the orders as set out at the forefront of this judgment.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 15 May 2023