Mulliner & Riggs
[2024] FedCFamC2F 366
•4 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mulliner & Riggs [2024] FedCFamC2F 366
File number(s): MLC 8006 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 4 March 2024 Catchwords: FAMILY LAW – what is an undefended hearing – party in default – attempts to comply with revised trial directions made – application to proceed undefended refused – consideration of interests off justice and welfare of child Legislation: Family Court of Australia 2004 Rules
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 1.33 and rule 10.27(2)
Cases cited: Morgan & Valverde (2022) FLC 94-100
Saso & Saso [2023] FedCFamC1A 65
Singam & Moffrey (2015) FLC 93-641
Zane & Allan (2008) FLC 93-378
Division: Division 2 Family Law Number of paragraphs: 43 Date of last submission/s: 4 March 2024 Date of hearing: 4-5 March 2024 Place: Melbourne Solicitor for the Applicant: Mr Mulliner Counsel for the Respondent: Ms Juneja Solicitor for the Respondent: Cathleen Corridon and Associates ORDERS
MLC 8006 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MULLINER
Applicant
AND: MS RIGGS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
4 MARCH 2024
THE COURT ORDERS THAT:
1.The application by the Applicant Mother for the matter to proceed on an undefended basis be and 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, or slips in recitation of evidence, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged. In the oral reasons the passages of authorities were not read out to the parties but were considered.
In the matter of Mulliner & Riggs, I am asked to deal with the matter on an undefended basis, and helpfully, counsel for the applicant on that application has indicated the parameters of what is implied or stated to be the undefended hearing.
Trial material
Counsel for the applicant pushed for the father’s application and trial material be dismissed, and the matter proceed as “undefended” because the father had not complied with orders to file evidence in his own case. On counsel’s submission this meant the father’s filed affidavit material would be had regard to, but would not be tested in cross-examination. It was said this would also mean the father should not be permitted to ask any questions of the mother in cross-examination, and that the father would not be heard on submissions. Orders of 26 February 2024 by this Court set out the filing times.
1.The matter be adjourned for final hearing on 4 March 2024 with an estimate of two (2) days.
2.On or before 4:00 pm on 29 February 2024 the Applicant Father is to file and serve:
(a) An Outline of Case Document (Final Hearing); and
(b) An updated Trial Affidavit.
3.In the event that the Applicant Father does not comply with Order 2, the Court will consider the Respondent’s Application made today to proceed with the final hearing on an undefended basis.
The court records show that a handwritten affidavit was accepted on the court portal on 1 March 2024 at 11.37 am; that is the day following the day fixed in the 26 February orders. The court records show that an outline of case was accepted on the portal this day, being 4 March 2024, at 8.39 am.
The father gave evidence that he had attended the library at Town B in late February 2024, attempting to type an affidavit, but that was interrupted by a power outage at the library. He thereafter made inquiries about whether he was allowed or permitted to hand write an affidavit. He says he made those inquiries on that day and it is common ground that he did by telephone contact the mother’s counsel, Mr Juneja, and its common ground that he discussed the issue of a handwritten document roundabout lunch time with Ms Juneja and that he was worried about being permitted to file that by handwritten document.
Fathers email address
The father also gave evidence that he had ceased to use an email address that was recorded on his previous solicitor’s Notice of Address for Service some 12 months or so ago, but that on the weekend prior to 26 February, he had reset passwords to reactive that email address.
Upon checking with counsel for the mother, having checked with the solicitor, it was said that documents were sent to both the father’s new and old email address and the documents sent to the old email address did not bounce back. The father’s position is that he told his previous solicitor that he no longer used the old email address and that he had a new email address. The old email address, I will refer to that as the “former email”, and the new one as the “current email”.
Issue of compliance
The issue of complying with orders to file material had been alive in this case for some time. On 9 February 2023, the matter was set down for trial and directions made for the filing of trial material. The father was to file 21 days prior to the final hearing and the mother to file 14. The father did not file material 21 days prior to the listed final hearing on 26 February 2024. The mother filed evidence on the due day, that being 12 February 2024.
Circumstances of the hearing
As events happened, the trial was not able to proceed on 26 February 2024 because the judge before whom the matter was listed was at least double booked and was part heard in another matter and so this matter was not able to proceed. In those circumstances, the matter was adjourned before that judge until today.
Over the weekend just past, the judge who had kept the case in her docket became ill and the parties were notified early this morning. That caused some disruption to the mother’s side. Her solicitor and the Mother had been going to attend in person. When the mother got the message, notwithstanding that she was on the way driving from Town B to Melbourne, she turned around and went home. By means of efficient technology, the mother is able to appear today with an appropriate set up electronically.
Issue of undefended hearing
The application for undefended relies in part upon the history of not having filed evidence on 26 February and then not having complied with the orders of 26 February. Having heard the evidence of Mr Mulliner, the mother’s position via her counsel is, in broad terms, that the allegations relating to email are a fabrication and there was no power outage and the matter should still proceed undefended.
The other matter that is relevant to the issue of the undefended hearing when the authorities on undefended hearings are looked at is that the father had participated with Child Protection in regard to a section 69Z response, dated 17 October 2020 and participated in the family report dated 28 September 2023.
Mr Mulliner was interviewed for the purpose of that family report in mid-2023 and his partner, Ms C was also interviewed on that day. Mr Mulliner and the eleven year old child the subject of these proceedings, X, were observed together in mid-2023.
Application for undefended hearing
The expression “undefended” is not defined, or otherwise explained in the Rules. The explanatory guide to the Family Court of Australia 2004 Rules, that is the old rules that no longer apply (and the guide was expressly stated not to be part of the rules) explained the term “undefended basis” in the following way:
“…… The court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with the rule or order, as if a response had not been filed the court may make orders set out in the application on being satisfied by evidence that the orders should be made.”
In Zane & Allan (2008) FLC 93-378 (‘Zane & Allen’), the husband had failed to comply with orders and directions of the court and to cooperate with orders and directions relating to valuation of assets by single expert. The matter was listed for final hearing and on the day of the final hearing the husband appeared by counsel and sought an adjournment and, as I understand it, the purpose of the adjournment was to enable compliance by the husband with the Court orders and directions. The primary judge refused the adjournment application and proceeded to hear the matter in what was described as an “undefended” hearing over two days. A reserved judgement was delivered later. The husband appealed and the majority regarded the primary judge’s discretion as to whether to proceed undefended as miscarrying. The appeal was allowed and the matter remitted for rehearing on the basis that the discretion to determine whether the matter should proceed undefended miscarried.
At [10] the majority repeated the primary judge’s observations of just what an undefended hearing is (or at least was then) and did not criticise or approve those observations. Zane & Allen has been referred to since but without the list of matters set out at [10] being approved or adopted. I regard the list as at least useful to consider. The majority recited the primary judge’s observations as follows:
10.We note that his Honour subsequently considered the meaning of an “undefended hearing” in the reasons he delivered for the substantive property settlement orders made on 11 April 2006. In those reasons his Honour said:
28The following guidelines appear from the abovementioned cases and materials:-
(a)In an undefended case the Response becomes a nullity (Rules of Court)
(b)Where an Application has been struck out due to the default of a party to make a full frank and prompt disclosure of his/her financial affairs that party ought have no further right to be heard without order of the Court (Tate and Tate)
(c)In an undefended hearing the applicant has a duty to the Court to make full disclosure and deal with the Court in good faith (Krebs)
(d)In an undefended hearing the applicant must establish the case with admissible evidence (Tate)
(e)In an undefended hearing the trial Judge has the discretion to have regard only to the evidence of the party before the Court and not the affidavit evidence of the excluded party (Tate) [The converse of this being there must be a discretion to have regard to part or all of the affidavit evidence filed by the excluded party]
(f)The trial Judge in an undefended hearing may exercise a discretion to have regard to agreements reached between the parties prior to the hearing as to such matters as value of property where such agreements have been noted on the Court record or where there is admissible evidence establishing such agreement (Tate)
(g)Where a court does proceed to conduct a hearing as an undefended matter it is still bound by the same general requirements as to proof as in a defended matter. This does not mean that a court necessarily has to insist on detailed evidence, make elaborate findings and give reasoned decisions in undefended matters… Nevertheless it must be satisfied that the evidence supports its findings and orders.
(h)Subject to matters of procedural fairness the trial judge may allow the remaining party in an undefended hearing to rely on affidavit material filed and served on the excluded party together with oral evidence and the tendering of documents to establish a case.
(i)There is a wide discretion to be exercised by the trial Judge as to the extent of the involvement of the defaulting party in the undefended hearing. This discretion must be tempered with regard to procedural fairness, natural justice and the requirement to do justice to all of the parties. Each case will demand an individual assessment by the trial Judge as to the appropriate procedure to be adopted. In many cases the reasons giving rise to the determination that the case should proceed undefended will no doubt impact upon the decision of the trial Judge as to the method of hearing to be adopted. In many cases the trial Judge will have regard to the evidence of the remaining party only.
…
29… I am of the opinion that the husband has forfeited his right to have me read his affidavit evidence. In any event where his evidence was not corroborated I would be unable to accept it as there is no ability on the wife’s part to cross-examine him or his witnesses as they are not present.
30I will have regard to the Court record in order to consider any agreements recorded for the purpose of the final hearing. I have also referred to some of the husbands’ evidence in the course of my reasons…
…
32I have read all of those affidavits and my findings are based on the evidence set out therein, on the documents tendered in the hearing, reference to some of the husbands affidavit evidence or the matters of Court record referred to together with the wife’s oral evidence, unless I state otherwise.
At [11] the majority said it was unnecessary to express a view as to whether the primary judge’s understanding of an undefended hearing was correct or not.
At [6] of the his reasons the primary judge observed as follows:
6…As best I can determine an order made for a hearing to proceed undefended does not automatically exclude participation by the other party in some manner. It seems to me that the trial Judge would have the discretion to allow participation in any way which might be helpful to the Court or which may be seen as warranted in the particular circumstances of the case. In some cases it may be appropriate to exclude the other party from any participation at all.
There was no criticism or approval of the primary judge’s description of the breadth of the matters to be considered within an undefended hearing. In that case the majority pointed out that even in the event of default of a party with complying with court directions and rules there is still a discretion to be exercised as to whether or not a final hearing should proceed as undefended. Of significance in finding that the discretion had miscarried the majority observed that the recalcitrant and noncomplying husband had filed some material and sought to participate in the hearing and that there were significant factual and legal issues that required hearing. An error was that the observations about the breadth of the discretion was made after the “undefended” ruling had been made and the trial had concluded.
As May J, in dissent as to the result of appeal in Zane & Allan, observed correctly and concisely:
[190]First it would be wrong in this case to lose sight of the fact that there are two parties to this dispute. The wife is entitled to have her application filed 1 September 2000 heard.
In Singam & Moffrey (2015) FLC 93-641 (Singam) the primary judge proceeded to hear a matter undefended after a party had failed to file documents in accordance with the rules of the court and had not attended a court ordered conciliation conference. That litigant in person had attended to directions hearings by telephone but was required to attend a further hearing in person but on the day of the hearing requested to appear by telephone. The request was denied.
In that case the Full Court regarded the primary judge as proceeding under the then applicable old (new rules are now in force) default provisions of the then applicable rules. Those rules differ from the current rules but the themes are sufficiently similar for the observations to be apposite. At [43-44] the Full Court observed:
43.The exercise of the relevant discretions occurs within an important statutory and regulatory framework. The Federal Circuit Court “… must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted” (s 42 Federal Circuit Court of Australia Act 1999 (Cth)). The Court may “… dispense with compliance, or full compliance …” with any of the Rules (r 1.06) consistent with specified objects of the Rules to “… operate as informally as possible” and to “use streamlined processes” (r 1.03(2)). The Court “will apply the Rules in [80183] accordance with their objects” (r 1.03(3)) and “must … avoid undue delay, expense and technicality” (r 1.03(4)).
44. …As is evident, the court has wide powers to frame proceedings and procedural requirements consistent with the interests of justice and the proper interests of both parties. Judgment by default is a remedy that results from a conclusion that the interests of justice require one party to be denied an important right; to have their case heard, even if considered weak or misguided. Frequently, other orders, including procedural orders shaped to fit the particular circumstances of the case, should be preferred.
The appeal was allowed on the basis that the exercise of the discretion to proceed undefended had miscarried.
In Morgan & Valverde (2022) FLC 94-100 (‘Morgan’), Austin J, siting as the Full Court dealt with an appeal arising from where a respondent had not complied with procedural orders and the primary judge had referred to Rule 10.27(2) (recited below) of the current Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and said she would proceed “on an undefended basis”. The appeal was ultimately successful because, although there is no reference to the respondent asking to cross examine the other sides witnesses, the possibility of him doing so was not explained sufficiently to him. A defaulting party must still be heard as to what course the substantive hearing would take and a litigant in person informed of options.
Rule 10.27(2) of the current rules is as follows:
Rule 10.27(2) Orders on default
…
(2) If a respondent is in default, the court may:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b)give judgment or make any other order against the respondent; or
(c)make an order referred to in paragraph (b) to take effect if the respondent does not take a step ordered by the court in the proceeding in the time limited in the order.
In the course of allowing the appeal the observations of Austin J shed light on what an undefended hearing is. Austin J observed:
23The primary judge expressly referred to such power in the reasons for judgment, saying:
101.As a consequence, r 10.27(2) of the [the Rules] gives me the discretion to make orders including the giving of judgment or the making of any other order against [the appellant]. I intend to exercise that power.
…
185.[The appellant] has not complied with orders of this Court and is in default pursuant to r 10.26 of [the Rules], so much so that these proceedings have been heard on an undefended basis.
24But the primary judge did not do as portended. Her Honour did not order the appellant to take some other “step in the proceeding” (r 10.27(2)(a)). Nor did her Honour “give judgment” against the appellant (r 10.27(2)(b)). The Response filed by the appellant in February 2020, seeking certain property settlement orders, was not summarily dismissed. In fact, during final submissions, the primary judge elicited from him the precise nature of his proposal, as her Honour was properly intent on determining what just and equitable orders were needed to finalise the cause between the parties under Pt VIIIAB of the Act.
25The appellant was allowed to make final submissions, but not permitted to cross-examine the respondent, though no “other order” of that sort was actually made or explained (r 10.27(2)(b)). The hearing did not proceed on an “undefended basis”, as the primary judge said it did (at [185]), since the appellant participated in the trial and resisted the respondent’s application, though he was deprived of an opportunity to cross-examine her.
Hence in an undefended hearing consistent with Morgan an undefended hearing would mean any application of response of the defaulting party is dismissed before the substantive hearing and the defaulting party is not permitted to be heard on the substantive relief at all and the defaulting party is nor permitted to cross examine the other sides witnesses or tender documents to contradict the other sides evidence. Hence in an undefended hearing consistent with Morgan the defaulting party appears to be entirely excluded from participation in the substantive hearing contrary to the primary judges observations in Zane & Allan.
In Saso & Saso [2023] FedCFamC1A 65 (‘Saso’), Aldridge J sitting as the Full Court heard an appeal where the primary judge had refused an adjournment when the appellant was represented for the purpose of an adjournment application only. After refusing the adjournment the appellant was unrepresented and after referring to Rule 1.33 (recited below) and determining that the hearing would proceed undefended the primary judge did not permit the appellant to speak or address the court at all because the matter was an undefended hearing.
Rule 1.33 of the current rules is as follows:
Rule 1.33 Failure to comply with a legislative provision of order
(1)If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect.
(2)If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a) dismiss all or part of the proceeding;
(b) set aside a step taken or an order made;
(c) determine the proceeding as if it were undefended;
(d) order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f)make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
Aldridge J allowed the appeal on the basis that the unrepresented litigant did not get the opportunity to be heard as to how the substantive hearing should proceed once the adjournment was refused and that was a denial of procedural fairness. But in the course of doing so Alridge J touched on what an undefended hearing might or might not be. He observed:
18The question of whether the matter should be adjourned and the course of the hearing thereafter were quite separate matters. The refusal of the adjournment did not compel the matter to proceed on an undefended basis, whatever that ultimately means which was not explored in submissions. Both counsel proceeded on the basis that the effect was that the appellant could not participate in the hearing in any manner. That may not be correct but is not a matter that presently arises for consideration.
19As Austin J explained in Morgan & Valverde, there are a number of options available where the participation of a party is to be limited by reason of a default with procedural orders and normally that would involve allowing the defaulting party to cross-examine (albeit in the limited manner described in Morgan & Valverde), possibly to tender documents and to make submissions. It is apparent that the primary judge did not consider these options.
20That however, is not the point of Grounds 4 and 5. Senior counsel for the appellant at the appeal accepted that it was open to the primary judge to have made an order that the hearing proceed undefended. Rather, the point was that before making the determination as to how the hearing would proceed the primary judge should have sought submissions from the appellant and that this failure was a denial of procedural fairness.
…
24It is well-established that procedural fairness requires a party to be given a reasonable opportunity to present his or her case and it matters not whether that opportunity is taken up (Kioa v West (1985) 159 CLR 550). The respondent submitted that the appellant was afforded the opportunity but did not take it up because she did not file a Case Outline or an affidavit in chief. That however, was the failure to take up the opportunity to prepare for the hearing, and that failure was the basis for the application of r 1.33(2) of the Rule. It was not the opportunity to be heard as to what the consequences of that failure should be.
Hence the opportunity to file an outline of case does not necessarily mean the defaulting party had an opportunity to be heard as to the consequences of default.
I took into account the guidance of those authorities (there is no time to refer to them and read them out and still undertake the substantive hearing).
Fathers participation in proceedings previously
The other aspects to this hearing are that in 2023, the mother, Ms Riggs, was interviewed by the family report writer and in mid-2023, the mother and X were observed together. Those interviews were conducted face to face at Town D. And there was a zoom video communication with Mr E, who was at that time, understood to be the partner of the mother, Ms Riggs.
That video, for the purpose of the family report, occurred in mid-2023. The report writer had before her and referred to Mr Mulliner’s affidavit filed on 20 January 2023, and 24 January 2023, and his affidavit of 21 July 2022 and his application for final orders of 21 July 2022.
Relevant paragraphs of that report are as follows.
63.[X] presented as an earnest, confident and active boy. Both parents described [X] in similar terms as funny and caring. [X] appeared to be meeting developmental milestones and was polite and appropriate throughout interview and observation. Both parents reported some behavioural concerns in other contexts, particularly at school with [Ms Riggs] also reporting escalating behaviours at home following spend-time with [Mr Mulliner].
64.The crux of the parenting dispute is whether [Mr Mulliner]’s spend-time with [X] should be increased to a week-about arrangement as proposed by [Mr Mulliner], or whether [Mr Mulliner]’s spend-time with [X] should be decreased to three weekends per month and Thursdays for dinner as proposed by [Ms Riggs]. Additionally, [Ms Riggs] would like to relocate to somewhere between the [Suburb F] and [Suburb G] areas with [X]. Whilst [X] was unable to provide in depth or reflective insight into his preferred parenting arrangements, he was clear that he does not wish for anything to change significantly and is comfortable with current arrangements.
65.Of value is that both parents are able to provide [X] with exposure to different activities and supports in their homes, with [X] identifying that [Ms Riggs] is his preferred person to talk to whereas [Mr Mulliner] will spend time with him on his interests such as sport.
66.Whilst it is positive that both homes provide exposure to different interests and experiences, it appears that [Mr Mulliner] and [Ms Riggs] also differ greatly in their approaches to parenting and discipline, which may lead to a lack of consistency for [X] making it more difficult for him to understand his actions and associated consequences… Given [X] has received diagnosis of ADHD it would also be helpful for [Mr Mulliner] to accept this diagnosis and utilise relevant strategies to support this including receiving psychoeducation from his current treating therapist.
67.[Ms Riggs] reports that [X]’s behaviour escalates following spend-time with [Mr Mulliner], and [Mr Mulliner] observes that whilst [X] behaves well at his house, he becomes withdrawn towards the end of spend-time. [X]’s behaviour at either house is not necessarily reflective of one particular parent’s parenting authority or skills, but rather of the overall struggles experienced by [X] in navigating the parenting arrangements. Indeed, both parents accounts are consistent with a theme of [X] struggling with transition and changeover… To improve consistency [X] may benefit from decreasing the back and forth between homes to minimise transition between the different routines and parenting styles and therefore reducing associated disruption.
…
69.Whilst there were concerns raised [Ms Riggs] in regard to [Mr Mulliner]’s historic drug use, she had no information to suggest that he was currently using drugs…
70.[Mr Mulliner] raised [Mr E]’s consumption of alcohol as a concern, which differed from the reports of both [Ms Riggs] and [Mr E]. There was no collateral information available to assess associated risk, but it’s noted that [Mr E] is not the primary carer for [X]. Should his consumption of alcohol be in excess, this will increase volatility of [X]’s home environment.
The report goes on to discuss the advantages and disadvantages of each party’s proposal. I give weight to the report writers evidence.
Parties’ proposals
At that time, the father’s proposal was for the child, X, to live equal time on a week about basis. As I understand it, the mother’s position was that the existing arrangements of the Thursday through to the Tuesday morning should continue, but the additional Thursday night in the following week should cease.
Mr Mulliner’s position in his outline of case, if I accept it, is that his time should be in a block time, which on one view, is consistent with the family report.
81.[Mr Mulliner] be afforded spend-time with [X] from Wednesday after school to Monday after school every other week, with Thursday overnight contact to cease.
82.When [X] transitions to high school, and should he consistently engage with therapeutic supports until this time to improve resilience and emotional regulation, spend-time with [Mr Mulliner] could be gradually and incrementally increased over time, until a week-about arrangement has been reached.
In the Father’s outline of case, he now seeks not equal time, but an arrangement that has the child, X, living more with his mother than with him, but seeks his time be in a continuous block of six nights.
The Mothers objects to the Father relying upon the document that changes his position.
Mother’s change in circumstances
Having read through the Mother’s trial affidavit, and having read the family report, I was under the impression that, when reading that affidavit on 12 February 2024, that Mr E was still the mother’s partner. I was unable to see any reference to Mr E in the 12 February 2024 affidavit at all. Prior to the trial listing on 20 February 2024, Ms Riggs filed what was described as an addendum trial affidavit. That affidavit, filed on 20 February, that is, 8 days after the 12 February trial affidavit, referred to an incident and circumstances that had arisen from around late 2023.
8.That overall, my relationship with [Mr E] was positive, and [Mr E] and [X] got along well. However, [in] or around [late] 2023, my relationship with [Mr E] began to deteriorate, as [Mr E] began consuming alcohol excessively, and using cannabis on a regular basis. [Mr E]’s alcohol consumption impacted his behaviour, with [Mr E] becoming verbally aggressive towards me. [Mr E]’s behaviour also impacted the children.
9.That I was not supportive of [Mr E]’s alcohol consumption, cannabis use or aggressive behaviour and tried to minimise the children's exposure to it.
10.That I recognised that it was not in the best interests of [X], [H], or [J] to be exposed to [Mr E]’s behaviour. I gave [Mr E] an ultimatum that if he wished to continue to be in a relationship, he needed to stop drinking.
11.[Mr E] did not take the ultimatum well, and his behaviour deteriorated quickly leading me to end the relationship [in late] 2023. On this date, I asked [Mr E] to move out of my home however he refused. I subsequently called Victoria Police who attended my home to remove [Mr E]. Police took no further action once [Mr E] left my property. Thankfully, [X] and [H] were not exposed to this.
12.That I have not had contact with [Mr E] since [late] 2023, and I have not allowed [Mr E] to have contact with [J] or [X].
Matter to proceed as a defended hearing
In determining this application, I have regard to the fact that I am required to determine the best interests of X in the orders that I make. I must also consider procedural fairness to both of the parties and ensure that any hearing, undefended or defended or otherwise (if there be such a cross-bred procedure available) that such a trial or hearing does not miscarry.
In all of those circumstances, and it being common ground that Mr Mulliner was at least agitated in regard to filing in late February by his phone call to Ms Juneja and had attempted to send documents to the Court on the same date, albeit whether that was after 4 pm or not is not yet clear to me, I am not satisfied that either the interests of justice or X’s welfare would be served by an undefended hearing. Hence when the matter resumes at 2.15pm this day, the dispute will be, whether X should live with his father in a block of six nights or five, as the mother seeks.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 22 March 2024
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