PALMER & RHODES - [2015] FCCA 2853

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMER & RHODES

[2015] FCCA 2853

Catchwords:
FAMILY LAW – Practice and procedure – non-compliance with rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.4.03(2), 6.19(a)

Applicant:

MR PALMER

Respondent:

MS RHODES

File Number:

MLC 7579 of 2015

Judgment of:

Judge Harland

Hearing date:

7 October 2015

Date of Last Submission:

7 October 2015

Delivered at:

Melbourne

Delivered on:

7 October 2015

REPRESENTATION

Counsel for the Applicant:

Mr Grant

Solicitors for the Applicant:

CE Family Lawyers

Counsel for the Respondent:

Ms Dellidis

Solicitors for the Respondent:

Farrell Family Lawyers

ORDERS

That this proceeding is adjourned to 2 November 2015 at 9:45am for mention in the duty list.
That the children X born (omitted) 2005 and Y born (omitted) 2007 spend from Wednesday to Sunday in the father’s care in week one and from Wednesday to Saturday in the father’s care in week two.
The father is to file a reply, financial statement and affidavit addressing the financial issues within 14 days of today.

IT IS NOTED that publication of this judgment under the pseudonym Palmer & Rhodes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7579 of 2015

MR PALMER

Applicant

And

MS RHODES

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is the first return date of the father’s application for parenting orders. His application was filed on 12 August 2015. He had sought that the matter be listed on an urgent basis. That listing was refused, understandably, in the circumstances where this Court is incredibly under-resourced and overloaded with matters. Typically, a matter in this registry does not get given a first return date for up to three months. On any view, it is not an acceptable amount of time, particularly with respect to parenting matters. It is necessary for the Court to juggle a whole range of parenting matters, including parenting matters that, fortunately for this case, have much more serious issues of risk, violence, abuse and conflict and I say fortunately for this case in terms that these children are not faced with those difficulties.
I have had the benefit of practicing in Sydney and sitting regularly in the Northern Territory and South Australia in addition to sitting in Melbourne. I have to say, that in terms of the practice in Melbourne, it seems a chronic ongoing practice of legal practitioners in this Court having absolutely no regard for the court rules with respect to the filing and service of documents. There is an expectation that the Court will allow practitioners to rely on documents filed late, particularly in parenting matters, on the basis that to not allow that material in would somehow be contrary to the children’s best interests. To accede to that request would be to deny the Court being able to properly run matters with procedural fairness being accorded to both parties. This is not a court of summary jurisdiction or a tribunal.
This is an issue that is by no means endemic to this case alone. It is something that I see in every single duty list in most matters, including matters where material has been filed earlier than in this matter. What is very clear on the face of every initiating application that is filed in this Court, that if one turns to the last page of the document, it says in bold:
“Important Notice to the Respondent(s) - You should seek legal advice about this application. If you do not want the Court to make the orders sought in this application or if you want the Court to make other orders YOU MUST:
For proceedings in the Federal Circuit Court of Australia:
file at the Court a response, an affidavit and other relevant documents – including, in financial matters, a Financial Statement
deliver a copy of the response, affidavit and other relevant documents to the applicant’s address for service within 14 days…”
That is not 14 days before the court date; it is 14 days after service. It would be one thing if respondents filed documents 14 days before the court date. That is hardly ever complied with. If the matter had at least been filed 14 days before today, then the mother could have very reasonably expected to have her parenting application dealt with and the financial application dealt with, but by not filing material until yesterday, including financial matters, it means that it was inevitable that there was going to be an adjournment today, which means that both parties will incur further costs in coming back to court to argue further interim issues.
It is utterly counterproductive to wait until the last minute, and it is not just the application form itself that talks about the need to file material within 14 days. It is also set out in r.4.03(2) of the Federal Circuit Court Rules 2001 (Cth). What the rules also say in addition to that, is that in accordance with r.6.19(a), unless the Court orders otherwise, an application and any document filed with it may not be served less than 3 days before the day fixed for hearing of the application in a case. Rule 6.19(b) provides that documents must not be filed less than 7 days before the day fixed for the hearing of any other application. It seems to me that practitioners routinely expect that they will be able to rely on material, no matter how late it is filed, even if it is filed, in some instances, on the first day of a final hearing. That is not a proper way of conducting business before a court.
The court has to deal with evidence. Parties are entitled to know what the case is against them. They are entitled to receive legal advice before the morning of court events. Judges with busy duty lists often read the relevant documents before the list in order to manage the list effectively.
Part of the problem of the listings in this Court is because of late service and matters being dealt with in such a last-minute way. The reason for addressing this in written reasons is not just in relation to this case, but to hopefully send a message to practitioners in general that the practice of simply ignoring court rules and expecting that that will not have any consequences for their clients must end.
Of course, there are circumstances where applications are brought in urgency, and they are not the category of cases that I am talking about. This is not a case in that category. Counsel referred to the rules being applied rigidly. Expecting rules to be complied with generally is not rigidly applying the rules. The rules are there to assist in the administration of justice. This is not a case where there is an urgent issue that has arisen from the court’s perspective. Of course, from the parties’ perspective, their case is urgent, their case is important, and I certainly do not diminish that, but I and the other judges of this Court have to juggle hundreds of cases, not just this one case.
What is clear, looking at the father’s material and looking at the orders that the mother seeks, is that the parents agree that they should have equal shared responsibility for the children so that they should make the major decisions for the children’s welfare together. It also appears that the parents have been, until recently, living separately under the one roof and that, to their credit, they have been able to agree on an approach as to how and when to tell their children about the relationship breakdown and the fact that they have formed other relationships. They have also ensured their children are given psychological assistance.
These are very positive and admirable traits for the parents to have done. A lot of parents who come to this Court do not do any of those things. They have children who do not have their parents telling them together that their relationship has broken down, that their parents are moving on and that maybe the children need some help or to talk to people other than their parents. Despite what is bringing them to court, there are actually a lot of positives about how they have approached this matter, which speaks well for their children because lots of children do not have that.
It is not surprising that the children have had some difficulties dealing with separation. They do not want their parents to be separated, and as I said, it is not a category of case where it’s an issue about these children being at risk. Certainly, on both cases, the children should be spending a substantial and significant time with the other parent. There are disagreements about what that should look like, but it is not a case where there are serious issues raised about parental capacity, risk to the children, drug use, alcoholism, mental health or family violence, which are issues that are commonly before this Court.
As I have indicated during the course of discussions with counsel, I will adjourn this matter so that all of the interim issues can be dealt with on one occasion. I will adjourn it to 2 November at 9.45am, and on that occasion, the outstanding interim issues can be dealt with. In the meantime, the parenting arrangements should revert to what they were before the mother unilaterally changed those arrangements, those arrangements being that the children spend from Wednesday to Sunday in the father’s care in week 1 and Wednesday to Saturday in the father’s care in week 2.
The mother also raises financial issues, and the father needs the opportunity to file a response to the financial material. I will direct that the father file a reply, a financial statement and affidavit addressing the financial issues within 14 days of today. If the mother had complied with the rules, the interim issues could have been addressed today, efficiently using court time and saving the parties costs and delay.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 23 October 2015