Maldonado & Maldonado
[2023] FedCFamC1F 1020
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Maldonado & Maldonado [2023] FedCFamC1F 1020
File number(s): PAC 1079 of 2021 Judgment of: CURRAN J Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where father made oral application to adjourn the final hearing– Where father’s s 102NA grant approved but yet to be allocated – Where father’s application is opposed by the mother but not opposed by the independent children’s lawyer – Where proceedings have a long history – Where father has spent no time with children in some months – Where interim orders for supervised time made by consent – Where mother alleges risk of sexual abuse – Determined that the matter be adjourned in the interests of justice –Application granted and new hearing dates allocated Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited: Mertens & Mertens [2016] FamCAFC 136 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 22 November 2023 Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Mr Lovemore of Lovemore Lawyers Counsel for the Independent Children's Lawyer: Mr Guterres Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 1079 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MALDONADO
Applicant
AND: MS MALDONADO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
22 NOVEMBER 2023
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS:
1.That within seven days of the date of these Orders each party will do all reasonable things to contact C Contact Service, D Family Services and E Family Services to complete intake procedures at the first opportunity offered by those services.
2.That the father shall spend time with the children at the earliest opportunity offered by either of the services and the time shall continue with the same service for two hours each fortnight at a time and place nominated by the service.
3.Neither party shall cancel any visit or the service except in the case of an emergency and in the event that the children or one of the parties are unwell that a medical certificate be provided to the other party and the Independent Children’s Lawyer within seven days.
4.That the mother make all reasonable enquiries to obtain the date of birth of Mr B and provide this information to the Independent Children’s Lawyer at the earliest opportunity and through her legal representative.
THE COURT ORDERS:
5.That the matter be adjourned for a Final Hearing for 3 days on 25 September 2024.
6.That each of the parties are to file and serve one consolidated trial affidavit upon which they intend to rely by no later than close of business on 1 September 2024.
7.No affidavit material filed after that date may be relied upon without leave of the court.
8.Leave is granted to the Independent Children’s Lawyer to issue such subpoena as is necessary. Such subpoena are to be made returnable and inspected prior to the first day of the hearing.
THE COURT NOTES THAT:
A.Failure to comply with the directions for filing may result in the hearing proceeding on an undefended basis.
B.The parties indicated a preference for the final hearing to be heard at the Parramatta registry.
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 Maldonado & Maldonado has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons were delivered orally in court and have been corrected from the transcript.
INTRODUCTION
This is an application by the applicant father in these proceedings to vacate the hearing of the father’s application which was listed for three days commencing today. The basis of the application is, in summary, that he has been unable to secure legal representation to file material in accordance with the directions made or to be represented today.
The history is that the matter commenced in 2021 and on 19 November 2021, the matter was transferred to Division 1 for consideration of the matter being placed in the Magellan list, due to very serious allegations made by the mother. On 3 December 2021 it was determined that the matter was not placed in the Magellan list but remained in Division 1, awaiting a trial date.
The matter was fixed for Case Management Hearing on 11 October 2023 before me after the matter was identified as requiring an urgent date by then relevant Docket Judge in Parramatta. At that time, the father was legally represented.
At the same time, the parties were directed to file their affidavit and other material on which they were to rely by 6 November 2023.
On 8 November 2023 the matter was listed for compliance check before me. The father advised the court he had become unrepresented from 1 November 2023. At that time the mother’s solicitor also indicated that she too was awaiting legal aid approval. Fortunately, the mother’s grant was approved and her solicitor, Mr Lovemore, was able to complete and file the mother’s trial material in accordance with the amended directions made. However, the father remained without legal representation. Following further communication with the parties, an order issued from Chambers on 16 November 2023 noting that the requirements of s102NA(2) of the Family Law Act 1975 (Cth) will apply to the father.
The father made an application for Legal Aid pursuant to the s 102NA(2) order, which he advises today has been approved but he awaits the allocation of the matter to a solicitor for representation. He has not filed any evidence in accordance with the directions that were made.
APPLICATION FOR ADJOURNMENT
In the present application the father seeks orders for equal shared parental responsibility and substantial time. His application was filed in 2021 and has not been updated since that time.
Serious allegations have been made by the mother that the father has sexually abused one of the children. Those allegations were reported to the Court Child Expert and are found in the Family Report but have not been included in the mother’s trial evidence.
At the commencement of the matter today, counsel for the Independent Children’s Lawyer (“ICL”) noted that material produced by the Department of Communities and Justice (“the Department”) includes an allegation of an incident of family violence in the mother’s household, perpetrated by an individual identified in the records as the mother’s partner. There is no evidence in the mother’s filed material about this incident or about a new partner, or a previous partner. The issue is one that the ICL submitted requires further information to be obtained, as it is relevant to the determination of orders that would be in the best interests of the children and that also supports an adjournment application.
The prejudice in this case of an adjournment as sought by the father is borne by the father. He is currently spending no time with the children for reasons that are not clear to me. However, I note that I have today made orders by consent such that the father will return to spending 2 hours a fortnight as soon as one of the supervision agencies is available to facilitate that time. I expect that those orders will be complied with pending the final hearing of the matter.
The issue, ultimately, to be borne in mind is to balance the rights and interests of the father to have a trial where he is represented, and his interests are advanced as best they can be, against the rights of the mother, as a litigant who is entitled to have her case heard and anticipated that the case would be heard today. However, overriding both of these considerations are the interests of the children in this matter.
The ICL joins with the father in supporting the adjournment application. He very fairly points out that Legal Aid has been granted and it is a matter of allocation to a solicitor which tips the scales in favour of an adjournment – that is, that the father should be properly represented.
Secondly, it was submitted that as the mother is persisting in seeking a no contact order, that is a factor that supports an adjournment because of the severe nature of the orders sought and the significant and permanent change to the children’s relationships with their father and the paternal family if the mother’s application is successful.
The mother’s primary application is that the father spends no time, or in the alternative, that time be restricted to limited supervised time, at a contact centre. Both the no time and the secondary position are both positions that support the adjournment, as the court should approach orders with such long-term consequences for these children with caution.
In that regard, the report of the Court Child Expert (although not yet tested) did not recommend a no contact order unless findings were made as to the veracity of the allegations of sexual abuse, but otherwise recommended that the children continue to spend time with their father on an increasing basis, and possibility moving to overnight time.
The consequences of the competing applications for the children are significant and warrant a cautious approach to the allegations being able to be properly tested, where parties are represented.
The final consideration is to other court users.
The court has a wide discretion to grant adjournments, but determination of any adjournment application is a careful balancing act. Although it is a wide discretion to grant adjournments, it is not an unfettered discretion.
Kent J summarised the matters that should be taken into account in determination of an adjournment application in Mertens & Mertens [2016] FamCAFC 136. The factors to be weighed include the reasons for the adjournment, the period of delay such an adjournment would give rise to, any prejudice or disadvantage to other party that cannot be compensated and the impact upon other litigants before the court were an adjournment granted.
The overarching purpose as set out in the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). That purpose is set out at Rule 1.04 of the Rules, and provides as follows:
The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
I note in particularly rule 1.04(2) of the Rules that:
Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
I note however, that I must conduct the proceedings in a way that is mindful of the children’s best interests.
In my view, despite my initial reluctance to vacate the hearing dates, I am satisfied that significant prejudice would be occasioned to the father in not having the opportunity to be represented and in not having all of the relevant material before the court.
Whilst I have sympathy to the position of the mother in respect of the matter needing to be finalised and the impact on her and the children of the uncertainty, it is true that at some stage the court will need to proceed to hear the matter regardless of the state of preparedness of the father. However, taking into account the date that the father became unrepresented and the approval of Legal Aid being granted, the nature of the orders sought by both the father and the mother, the fact that the trial may not conclude this week in any event given the need to obtain further subpoena material relevant to the incident of family violence identified in the Department’s records, and the desirability for the father to be able to present a case in an appropriate and informed way, notwithstanding the opportunities he has previously had, the interests of justice indicate that the balance tilts in favour of vacating the hearing date.
I make it clear, however, that both parties need to understand that on the next occasion the matter will proceed whether, or not, the parties have filed their material. I also note that if there is a failure to comply with the directions that the matter is likely to proceed on an undefended basis on the next occasion. That is my current intention whether, or not, the parties have legal representation.
The application is granted.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 14 December 2023
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