Mears & Hilton
[2022] FedCFamC2F 1793
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mears & Hilton [2022] FedCFamC2F 1793
File number(s): WOC 1213 of 2021 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 23 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant engaged legal representation after the conclusion of the proceedings – Application for an extension of time to file submissions in reply – Inappropriate for legal representatives to attempt to litigate via correspondence with a judge’s chambers – Short extension of time to file granted. Legislation: Federal Circuit and Family Court of Australia Act (Cth) s 67 Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 23 December 2022 Place: Sydney (via videolink) Solicitor for the Applicant: Mr Gibbs of GPG Lawyers Counsel for the Respondent: Mr Blank Solicitor for the Respondent: Culleton Lawyers Pty Ltd ORDERS
WOC 1213 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MEARS
Applicant
AND: MS HILTON
Respondent
order made by:
DEPUTY chief JUDGE MCCLELLAND
DATE OF ORDER:
23 DECEMBER 2022
THE COURT ORDERS THAT:
1.The applicant father is granted an extension of time to comply with Order 2 of 9 December 2022 to 4.00 pm, 13 January 2023.
2.The submissions referred to in Order (1) above are to be directly responsive to the matters raise in the respondents’ written submissions of 16 December 2022.
3.There is no order for costs.
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 Mears & Hilton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
The applicant, Mr Mears, has applied for an extension of time to file submissions in reply to those filed by the respondent, Ms Hilton, filed on 16 December 2022. The background to this matter coming before the Court is set out in paragraphs 1 through 6 of the respondent’s submissions dated 16 December 2022, which are as follows:
1. This matter was conducted over two days on 8 and 9 December 2022.
2. The Applicant father was self-represented at the hearing.
3.In the course of making submissions, the Applicant father sought to tender a bundle of documents comprising Facetime screenshots, text communications and emails between him and the mother. The tender was admitted and marked as Exhibit “B”.
4.Counsel for the mother advised the Court that these documents had not been made available prior to the tender and as such, they have taken the Respondent by surprise.
5.The Respondent through her Counsel however did not wish to adjourn the proceedings as all the evidence had been taken, the parties were into submissions and the Respondent wished to finalise the matter as soon as possible in the best interests of the children.
6.On that basis, it was proposed that orders be made to the effect that:
The Respondent mother have leave to file submissions in relation to the documents tendered as Exhibit “B” and annexed to those submissions any communications or such other documents as to provide context to any of the documents in Exhibit “B”. Those submissions were to be made within seven days and emailed to His Honour’s Associate.
(As per the original)
Relevantly, the orders made on 9 December 2022 are as follows:
1.By 5pm on Friday 16 December 2022, the respondent mother has leave to serve upon the other parties and forward to my associate submissions in response to the documents which constitute Exhibit “B” and to annex such other records of communication which she contends provide context to the communications set out in Exhibit “B”.
2.By 5pm on Friday 23 December 2022, the applicant father has leave to serve upon the other parties and forward to my associate his response to the mother’s written submissions.
The extension of time to file submissions in reply is sought by the applicant until 3 February 2022. The reasons provided by the solicitor for the applicant for seeking that extension appeared to have merit insofar as they had only recently been instructed in the matter but, with respect, in my view, lacked merit insofar as the solicitor asserted a much broader scope of his client’s intended response to the respondent’s submissions than was contemplated in the orders made on 9 December 2022.
During the course of these proceedings, I indicated the Court’s concerns regarding the necessity for the matter to be adjudicated in circumstances where the parties and their legal advisers have an obligation to comply with the overarching purpose in s 67 of the Federal Circuit and Family Court of Australia Act (Cth) (“FCFCOA Act”). In summary, I expressed the Court’s concern that the parties’ legal advisers have not simply picked up the phone to resolve an issue in contention, namely, whether an extension should be granted and, if so, what was an appropriate length of time. The Court expects experienced professionals to act in a manner consistent with the overarching purpose and, specifically, to attempt to resolve matters of this nature.
Additionally, I indicated to the parties that it is quite inappropriate and contrary to the concept of open justice for the parties to seek to litigate their respective positions by way of correspondence with a judge’s chambers. If there is a dispute regarding an issue of substance between the parties, it needs to be dealt with in open court and hence the reason that this matter was listed today.
Having considered the parties’ respective submissions, in circumstances where the solicitor for the applicant was brought into the matter after the conclusion of the proceedings and needed time to at least familiarise himself with the issues involved in the proceedings with a view to responding to the submissions of the respondent dated 16 December 2022, I am of the view that a short extension is appropriate. I emphasise the word short in the context where the Court was clearly attempting to have this matter finalised as soon as reasonably practicable so that ongoing parenting arrangements could be determined in the best interests of these children. In that context, the additional extension sought in the application, being six weeks in the context where the orders provided for a short time frame of seven days for an affidavit in reply, is excessive.
In summary, I am satisfied that a short extension is appropriate and that period of extension needs to take into consideration the relevant Christmas holiday period. On that basis, the orders I made on 9 December 2022 for the applicant to file his submissions in reply to the respondent’s submissions relating to the tender bundle marked Exhibit “B” is extended to 4 pm on 13 January 2023.
I also make an additional order that those submissions are to be directly responsive only to the matters raised in the respondent’s written submissions of 16 December 2022.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 11 January 2023
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