Mandall & Camdyn

[2022] FedCFamC1A 89

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Mandall & Camdyn [2022] FedCFamC1A 89

Appeal from:	Camdyn & Mandall [2021] FedCFamC2F 59
Appeal number(s):	NAA 36 of 2021
File number(s):	BRC 2330 of 2020
Judgment of:	MCCLELLAND DCJ
Date of judgment:	13 May 2022
Catchwords:	FAMILY LAW – Application in an appeal – Oral application by respondent to extend time to rely on evidence filed out of time – Where appellant objects – Oral application dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39(3)
Number of paragraphs:	6
Date of hearing:	13 May 2022
Place:	Brisbane (via videolink)
Counsel for the Appellant:	Mr Walsh
Solicitor for the Appellant:	Sterling Law
Counsel for the Respondent:	Mr Page QC
Solicitor for the Respondent:	Michael Dwyer Solicitor
Counsel for the Independent Children's Lawyer:	Mr Hodges
Solicitor for the Independent Children's Lawyer:	Barbara Fox Solicitor

ORDERS

NAA 36 of 2021
BRC 2330 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MANDALL

Appellant

AND:

MS CAMDYN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	13 MAY 2022

THE COURT ORDERS THAT:

1.The respondent’s oral application in an appeal to rely on an affidavit filed out of time on 12 May 2022 is dismissed.

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 Mandall & Camdyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

MCCLELLAND DCJ:

1. This matter involves the hearing of an application by the appellant father, Mr Mandall, to reopen an appeal for the purpose of an application being made to adduce further evidence in the form of an affidavit of the appellant father dated 7 April 2022, which is the subject of argument in the proceedings before me today.

2. On 20 April 2022, the appeals judicial registrar made orders for the programming of the filing of evidence in respect to that application. This included directions pursuant to r 13.39(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the respondent mother, Ms Camdyn, and the Independent Children’s Lawyer (“ICL”) to file and serve any affidavit in response to the appellant’s affidavit of 7 April 2022 by 4 pm on 26 April 2022. The ICL has not appeared in these proceedings and the respondent mother did not file evidence in accordance with that timetable. The respondent now seeks to rely on an affidavit filed on 12 May 2022. The explanation provided by the respondent for the affidavit not being filed in accordance with the timetable is that the respondent wanted to first have regard to any written submissions filed by the appellant in accordance with Order (3) of the 20 April 2022 orders providing for such submissions to be filed by 4 pm on 3 May 2022.

3. There have been no such written submissions filed by the appellant and, on that basis, the respondent contends through her senior counsel that it was appropriate for her to subsequently file her affidavit.

4. The orders for the programming of evidence are quite clear and a party seeking to rely on late filing and service of a document, particularly on the day prior to the hearing, is required to establish excusable delay. Having considered the reasons provided for the delay, I am not satisfied that it is appropriate, in the exercise of my discretion, to extend time for the respondent to rely on that affidavit, particularly in circumstances where the appellant objects to its content.

5. In that respect, I note that the subject matter of the respondent’s affidavit is in response to the appellant’s affidavit and seeks to present evidence that certain assertions made by the appellant are controversial and that, in other respects, the respondent had a reasonable excuse for failing to facilitate the child spending time with the appellant in accordance with the orders made by the primary judge.

6. While I have dismissed the application to extend time to rely on that affidavit, I note that the respondent nonetheless contends that the assertions made in the appellant’s affidavit are controversial and that, in the event of his affidavit being admitted into evidence, she contends that it would be appropriate for her to be given the opportunity to both test and reply to that evidence.

I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       17 June 2022