MATENSON & MATENSON
[2019] FCCA 3912
•11 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATENSON & MATENSON | [2019] FCCA 3912 |
| Catchwords: FAMILY LAW – Where the father filed a notice of discontinuance – undefended hearing – practice and procedure – exercise of discretion – procedural fairness – oral testimony not required – cross examination not permitted – matter to proceed by way of submissions – leave granted to the father to make submissions at the undefended hearing. |
| Legislation: Family Law Act 1975, s.102NA Federal Circuit Court Rules 2001 (Cth), rr.13.01, 13.02 |
| Cases cited: Leone & Cino [2016] FamCAFC 224 |
| Applicant: | MR MATENSON |
| Respondent: | MS MATENSON |
| File Number: | BRC 2083 of 2017 |
| Judgment of: | Judge Howard |
| Hearing date: | 11 December 2019 |
| Date of Last Submission: | 11 December 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 11 December 2019 |
REPRESENTATION
| The Applicant attended as a self-represented litigant |
| Solicitors for the Respondent: | Cornerstone Law Offices |
| Solicitors for the Independent Children’s Lawyer: | TLG Law |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER:
That this matter be set down for an undefended hearing commencing at 9:30a.m. on 19 February 2020 in the Federal Circuit Court of Australia at Brisbane.
That no party be permitted to cross-examine the other (or any other witnesses) at the undefended hearing of this matter on 19 February 2020.
That on 19 February 2020, this matter shall proceed by way of submissions only and the father is granted leave to make submissions in relation to the making of final orders in this matter.
That in addition to any oral submissions on made on 19 February 2020, each party shall also be permitted to rely on a written outline of submissions (should they desire).
That by no later than 4:00pm on 12 February 2020, each party and the Independent Children’s Lawyer shall file and serve a case summary document (maximum three (3) pages), which states as follows:
(a)The material each party seeks to rely on;
(b)A brief chronology of the relevant history of the matter; and
(c)The issues in dispute and the outcome sought by each party in relation to each issue.
IT IS NOTED that publication of this judgment under the pseudonym Matenson & Matenson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2083 of 2017
| MR MATENSON |
Applicant
And
| MS MATENSON |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
A.These reasons were delivered ex tempore on 11 December 2019 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The matter before the Court has quite a long and relatively complex history, but the matter for determination today is the question of the future progress of the matter and the participation of the various parties to the litigation from this day forward. The matter came before the Court in October 2019 and it was apparent that there needed to be some chance for each of the parties to provide submissions in relation to what course the Court should adopt for the further progress of the matter.
Of particular note and the reason that this determination is required is that the father, who was the applicant in the proceedings, filed a Notice of Discontinuance on 1 October 2019. Noting that he had done so, the Court sought submissions from the parties in relation to whether the father should be permitted to take any further part in the proceedings and essentially, in broad terms, if so, to what extent? The Court subsequently made the following Orders on 11 October 2019:-
“THE COURT NOTES:
A. That the applicant father filed a Notice of Discontinuance on 1 October 2019.
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That by no later than 4:00pm on 18 October 2019, the parties (the applicant father, the respondent mother and the Independent Children’s Lawyer) shall file and serve written submissions in relation to the following:-
a. The manner and conduct of the proceedings including:
i. Whether the applicant father should be permitted to take any further part in the proceedings?
ii. If the applicant father is to take further part in the proceedings – should he be permitted to cross-examine the respondent mother and/or any other witnesses?
iii. If the applicant father is to be permitted to cross-examine the respondent mother – to what extent does s.102NA of the Family Law Act 1975 apply to the cross-examination of the respondent mother by the applicant father? and
iv. If the applicant father is permitted to take further part in the proceedings – whether the applicant father should be permitted to make submissions in relation to the orders sought by the respondent mother and/or Independent Children’s Lawyer?
b. Whether or not it would be appropriate to hear any outstanding issues in this matter by way of written submissions only (on the papers) and in these circumstances – should the father be permitted to provide a written submission responding to the orders sought by the respondent mother and/or Independent Children’s Lawyer?
2. That the parties (the applicant, the respondent and the Independent Children’s Lawyer) are required to attempt in writing to reach an agreed position in relation to the manner and conduct of the proceedings.
3. That the Independent Children’s Lawyer’s costs be reserved.
4. That this matter remain listed for a final hearing of three (3) days commencing at 10:00am on 11 November 2019 in the Federal Circuit Court of Australia at Brisbane.
IT IS FURTHER NOTED:
B. That upon receiving the submissions pursuant to paragraph 1 of these Orders, the Court may consider re-listing the matter for a further Mention.”
The Court received submissions from the Independent Children’s Lawyer, from the father, and from the mother. I will start with the independent children’s lawyer’s submissions and the mother’s because they are similar in their effect; both submitted that in essence the father, having filed a Notice of Discontinuance, should not be permitted to take any further part in the proceedings. I have noted all of the written submissions provided by the Independent Children’s Lawyer and by the lawyer for the mother in relation to that aspect.
I have noted the cases referred to, including Leone & Cino [2016] FamCAFC 224. That case made a reference to the primary Judge’s decision. The primary Judge had referred to Rule 10.11(3) of the Family Law Rules 2004 (Cth) which provides that:-
“10.11(3). Discontinuance of the case by a party does not discontinue any other party’s case."
That's a straightforward proposition. I am also mindful of the Rules of the Federal Circuit Court of Australia in particular Rules 13.01 and 13.02.
The written submissions of the Independent Children’s Lawyer referred to a recent decision of Wilson J in the Family Court of Australia in Cao & Trong [2019] FamCA 336. In that case His Honour essentially concluded that the Family Court of Australia had an inherent jurisdiction to set aside a notice of discontinuance on discretionary grounds – provided it was just to do so. That case is not relevant to the matter at hand.
Both the Independent Children’s Lawyer and the lawyers on behalf of the mother submitted that, noting that the father had filed a notice of discontinuance, that the Court should proceed immediately to make final orders in accordance with the draft order agreed between the mother and the Independent Children's Lawyer.
On consideration of the submissions and noting the particular circumstances of the present case and the procedural history of the matter – I have come to the conclusion that the Court should be guided by those cases relating to undefended hearings. The father, having filed a notice of discontinuance is in a similar position to a party who has had their application struck out or their response struck out. My view is that the father is in the same position as such a litigant.
In cases where an application or a response has been struck out (generally from non-compliance with a procedural order), the Court very often sets the matter down for an undefended hearing. It is then a matter for the trial Judge to determine the nature of the further involvement of the litigant whose application/response has been struck out. I note the decision of Tate &Tate [2000] FamCA 1040. In that case, the Full Court of the Family Court noted that a discretion lies with the trial Judge to determine to what extent the relevant party may continue to participate in the proceedings.
In Zane & Allan [2008] FamCAFC 115 the Full Court again acknowledged that it is a matter for the discretion of the Judge to determine the extent of the further involvement of a party if the matter is to proceed on an undefended basis.
In Chranley v Smart (2012) 47 Fam LR 581 the Full Court noted from paragraph 80:-
“80. What is clear in our view, however, is that her Honour was dealing with the matter undefended and at no time sought to deny the father an opportunity to make submissions in relation to the orders that were being sought….
…
83. We accept that once her Honour had decided the matter should proceed on an undefended basis, the father’s opportunity for participation was limited because he had no application, nor evidence upon which he could rely. However he was nevertheless in a position to make submissions to her Honour about whether orders should be made or whether some other course of action should be taken. Her Honour was clearly cognisant of that when she suggested that the father remain in court if he wanted to be heard….
…
85. Although from the father’s point of view the proceedings were undefended, and therefore the extent to which he could participate was limited, the father was nevertheless given the opportunity to make submissions to her Honour about the orders. As we think is clear from the passages in the transcript to which we have referred, the father made no real attempt to engage with the issues and his demeanour and engagement with the Court was largely rude and disrespectful. In our view, it should also not be forgotten that the overriding issue was the best interests of the child, and that it was in this context that her Honour made the ruling to proceed on the day with the matter undefended.”
Earlier in paragraph 40 the Full Court had noted that:-
"40. The hearing was undefended and the parties would not be required to give oral evidence….”
When considering the procedure to be adopted in an undefended hearing the Court is to exercise its discretion in the particular circumstances of the case and set the parameters of the proceedings. In the present case my view is that the father should be entitled to make submissions. It is also a matter for the trial Judge to determine whether or not oral testimony is required or whether cross examination would be permitted. Having said that though – the comment by the Full Court in Chranley v Smart (supra) at paragraph 44 seems to indicate that the better view is that when the matter is proceeding on an undefended basis – the parties will not be required to give oral evidence.
The trial Judge in Zane & Allan (supra) stated that the discretion "must be tempered with regard to procedural fairness, natural justice and the requirement to do justice to all the parties. Each case will demand an individual assessment by the trial Judge as to the appropriate procedure to be adopted."
That was the decision made by the Judge at first instance. The Full Court did not expressly state that they did not agree with that; they rather interestingly said:
“11…. We thus proceed on the assumption (but without deciding) that the effect of an order that a hearing is to proceed ‘undefended’…is that the hearing will proceed as described by his Honour….”
I have reached the view that I should not proceed to make final orders or proceed with the matter on undefended basis today, 11 December 2019. Rather, the matter should be set down for an undefended hearing and the proceeding will take place on 19 February 2020, commencing at 9:30a.m.
Directions will issue. There will be no need for oral testimony. There will be no cross examination of witnesses. However, I will hear submissions from the mother, from the Independent Children's Lawyer and from the father. I am granting leave to the father to make submissions in relation to the orders.
I do not consider it is appropriate for the father to be closed out in relation to the making of submissions in relation to the orders. To my mind, it accords procedural fairness to the father and indeed to the mother as well as the Independent Children’s Lawyer.
As to the decision in this case that there should be no cross examination in the course of the undefended hearing I also point out the following:-
a)That neither the Independent Children's Lawyer nor the mother wish to cross-examine the father; and
b)In relation to the father, section 102NA of the Family Law Act 1975 (Cth) applies. The operation of that section prevents the father from cross examining the mother. The father is a self-represented litigant.
I note also the evidence of the family report writer. I note that the father, in the submissions that he is making, is not seeking, as it were, anything which would be described as completely contrary to what the mother seeks. The father was not seeking an order that would require the children to live with him, but he does seek certain orders that would at least leave the door open for his involvement in the lives of the children.
The parties are permitted, of course, to bring a written outline of submissions if they wish, and they will also be given a chance on that day to make an oral submission to the Court in relation to what orders should be made. The matter will proceed by way of an undefended hearing. The Court will hear submissions on the day of the undefended hearing – 19 February 2020.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 26 May 2020
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