Mawad & Hassen
[2023] FedCFamC2F 340
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mawad & Hassen [2023] FedCFamC2F 340
File number(s): PAC 3649 of 2019 Judgment of: JUDGE MURDOCH Date of judgment: 17 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex Tempore Reasons for Judgment – persistent non-compliance with trial directions of this court – where neither party has complied with trial directions but have both taken the opportunity to file interim applications relating to international travel and supporting affidavits – where neither party was able to provide adequate submissions as to why the substantive applications and responses in this matter ought not to be struck out – orders made for the extension of time for compliance – orders made in the event of default of one party for the matter to proceed undefended as against that party – orders made in the event of default of both parties for the parties’ applications and responses to be struck out. Legislation: Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68, 69
Family Law Rules 2021 (Cth) r 1.40
Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 17 March 2023 Place: Parramatta Solicitor for the Applicant: Legal Aid NSW Campbelltown Family Law Solicitor for the Respondent: Berry Family Law Solicitor for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 3649 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MAWAD
Applicant
AND: MR HASSEN
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
17 March 2023
THE COURT ORDERS THAT:
1.The time for compliance with Orders 5 and 6 made on 9 December 2022 is extended to 4:00 pm on 31 March 2023.
2.By no later than 4:00 pm on 6 April 2023 the Applicant is to forward to chambers via email to [email protected] an agreed list of issues to be determined by the Court at Trial together with an agreed estimation of the length of time required for the matter to be heard on a final basis.
3.The matter is listed in Chambers with no appearances by the parties at 4:00 pm on 31 March 2023.
4.In the event there is non-compliance by both parties with any of the above Orders, each of the Mother’s Initiating Application filed 1 August 2019 and amended on 17 January 2023 and the Father’s Response filed 4 August 2020 and amended on 16 February 2023 are struck out.
5.In the event that either the Mother or the Father fail to comply with the above orders the matter is listed for an undefended hearing as against the defaulting party at 10:00am on 18 April 2023 and in this regard the non-defaulting party is to file an Outline of Case by no later than 4:00 pm on 11 April 2023.
6.In the event both parties have complied with the above orders then the matter will be allocated trial dates and further directions made for the preparation of the matter for trial in Chambers.
7.Within 42 days the Father is to pay one half of the costs of and incidental of the Independent Childrens Lawyer today at scale in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia Division 2 (Family Law) Rules 2021 (Cth) set at $171.
8.Leave is granted to the parties to forward any proposed terms of settlement to Chambers.
9.By consent the Application in a Proceeding filed by the Mother on 16 March 2023 is withdrawn.
10.By consent Order 4 made pending further order on 9 August 2019 is discharged.
11.By consent the Application in a Proceeding filed by the Father 19 February 2023 is otherwise 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 a pseudonym Mawad & Hassen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
These parenting-only proceedings concerning the child X born in 2017 were commenced by the mother on 1 August 2019.
Since that date this matter has had approximately 16 listings before this Court. The mother appears to have filed four interim applications, the father has filed two. When the proceedings were commenced X was two years of age. He is now six. The proceedings have thus been on foot for two-thirds of his life.
A family report was prepared by Ms B dated 25 November 2022 and was released to the parties on 29 November 2022. The matter was listed before me on 9 December 2022, and trial directions were made on that date. Pursuant to such directions the parties were to file and serve their affidavits by no later than 4:00pm five days prior to today’s listing. The matter is listed today for a compliance check and, if the trial directions have been complied with, for the listing of the matter for trial. Neither party has complied with these trial directions.
On 14 March 2023 the legal practitioners forwarded a joint letter of correspondence to chambers:
·Advising the Court that the solicitors for the respondent father had only recently been instructed in the matter and are therefore not in a position to comply with the trial directions made over three months ago.
·Advising that the parties have reached a consent position with respect to a future compliance hearing date and future directions and proposing, to use their words, that:
…the matter be listed for a further compliance hearing no earlier than 3 May 2023 –
That the trial directions made by me on 9 December 2023 “be continued”; and
That the parties agree that their respective interim applications be put over to the proposed compliance hearing date for determination.
The solicitor for the father filed a notice of address for service on 27 February 2023, three weeks ago. The parties have had ample time and opportunity to comply with trial directions made by this Court. The solicitors for the father must have known when taking on the conduct of this matter that their client was already non-compliant with the orders made previously.
Despite the parties’ inability to comply with trial directions made by me in a matter that has now been on foot for three years and seven months, they have each managed to file an application in a proceeding seeking interim orders for the ability to travel overseas or the removal of airport Watch List orders, together with an affidavit in support. I state that again for emphasis. Neither party has been able to comply with orders and directions of this Court, but have been able to file an interim application seeking orders relating to overseas travel or the removal of airport Watch List orders, together with supporting affidavits.
The mother’s application is to be able to travel overseas in circumstances where she had the benefit of a grant of Legal Aid in this matter. It appears that the parties and their legal representatives feel that orders and directions of this Court are guidelines or suggestions rather than orders to be complied with.
Neither party sought the Court’s leave to grant the indulgence of extending the time for compliance in the appropriate manner, with evidence filed to ground such application. It appears to have been assumed that if the parties consented - that that was simply enough. It is not. In those circumstances I asked today for submissions as to why the proceedings should not be dismissed in circumstances of the parties’ non-compliance with orders of this Court.
The submission of the mother was that the mother has been significantly impacted by giving evidence in a criminal trial on 18 January 2023, some two months ago. The solicitor for the mother was not available for a period of four weeks due to the Christmas break in circumstances where trial directions were made some three months ago and that it is not in X’s best interests that the applications before this Court be dismissed.
The submissions of the father were simply that the criminal proceedings were listed in January of this year and that the father’s solicitors have recently come onto the record. I note, of course, as I have stated, that was in February of this year. Section 67 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the Act”) mandates that this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible.
This overarching principle includes as its objectives the efficient use of the judicial and administrative resources available for the purpose of this court, the efficient disposal of the court’s overall caseload, disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Section 68 of the Act obliges parties to act consistently with this overarching purpose and is complemented by rule 1.40 of the Family Law Rules 2021 (Cth). Section 69 of the Act permits the Court in its promotion of the overarching purpose to dismiss proceedings, in whole or in part, or to strike out any Initiating Application or Response to an Initiating Application in circumstances where the parties have failed or neglected to comply with its directions. It also permits the Court to make any such other order as it feels appropriate. I will allow one further opportunity for the parties to comply with the trial directions.
There appears to be a misapprehension that has permeated the practice of family law, at least in this registry, that orders and directions of this court are simply guidelines or suggestions. Further non‑compliance of the orders of this court will not be tolerated. If there is further non‑compliance, the matter will be either listed for an undefended hearing as against the defaulting party or the entire proceeding struck out. The parties’ failure to comply with directions of this Court will significantly delay the timeframe in which this matter will be heard on a final basis. That cannot possibly be in X’s best interests. Extensive court resources have been allocated to this matter in circumstances where the court’s resources are finite.
In this matter, and in circumstances where the listing of today is not only a waste of this Court’s resources but also a waste of public funding in circumstances where the matter is not able to progress today, the independent children’s lawyer, as is required by him, has sought an order for costs. In circumstances, as I said, where the mother is legally aided I am unable to make an order for costs against the mother. The father I am advised is not legally aided.
With respect to the submissions made on behalf of the father as to why I should make an order in favour of the independent children’s lawyer the submission was made that the father should not be wholly responsible for the costs in circumstances where both parties were non‑compliant with my orders for orders made to prepare the matter for trial. I agree with those submissions.
Orders will be made accordingly.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Murdoch. Associate:
Dated: 17 March 2023
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