Pasternak & Rossini
[2024] FedCFamC2F 491
•18 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pasternak & Rossini [2024] FedCFamC2F 491
File number(s): SYC 134 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 18 March 2024 Catchwords: FAMILY LAW – PROCEDURAL – Ex-Tempore Reasons for Judgment – Where a joint oral application is made by both parties on the first day of a three-day final hearing for an adjournment of the final hearing – where neither party has complied with trial directions made four months ago – where neither party has sought to provide evidence of the reasons for such non-compliance – where the matter has been on foot for over three years – where parties have not complied with their obligations to facilitate the just, equitable and efficient resolution of the proceedings – Initiating Application and Response of parties struck out and Directions made for the hearing of the costs Application made by the Independent Children’s Lawyer. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 192(4);
Family Law Regulations 1984 (Cth) r 7
Federal Circuit and Family Court of Australia (Family Law)Rules 2021 rr 1.04, 1.04 (3);
Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. Division: Division 2 Family Law Number of paragraphs: 22 Date of hearing: 18 March 2024 Place: Sydney Counsel for the Applicant: Mr Hodgson Solicitor for the Applicant: Pope & Spinks Counsel for the Respondent: Mr Gu Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor Counsel for the Independent Children’s Lawyer: Ms Kati Solicitor for the Independent Children’s Lawyer: Strive Family Law & Mediation ORDERS
SYC 134 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PASTERNAK
ApplicantAND: MR ROSSINI
RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
18 MARCH 2024
THE COURT ORDERS THAT:
1.Save as to the question of costs, the Initiating Application filed by the Mother on 12 January 2021 and Response thereto filed by the Father on 6 May 2021 are struck out.
2.By no later than 4:00 pm on 22 March 2024 each party is to file and serve a Financial Statement.
3.Legal practitioners who are privately funded in these proceedings are to file and serve a Costs Notice in accordance with rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by no later than 4:00 pm on 22 March 2024.
4.The hearing of the application for costs sought by the Independent Children’s Lawyer is listed at 11:30 am on 28 March 2024 by Microsoft Teams Web Conference.
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).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
These are parenting proceedings relating to the child of the relationship namely X who was born in 2019. X is four years of age.
The matter is listed today to be heard on a final basis over the next three days.
These proceedings were commenced by the mother on 12 January 2021. The proceedings have thus been on foot for over 3 years. Since that date, the matter has had approximately seven listings before the court in addition to a half-day Dispute Resolution Conference at which time the matter was unable to be resolved on a final basis.
A Family Report prepared by a consultant pursuant to Regulation 7 of the Family Law Regulations 1984 (Cth) and dated 24 February 2023 was released to the parties in February 2023.
The matter was adjourned on several occasions throughout these proceedings as the court was advised that the parties were “settling consent orders” however such consent position has not come to fruition.
The matter was listed before the Chief Justice on 8 June 2023 when orders and directions were made for the father to obtain a referral from his general practitioner and an updated assessment and treatment plan with respect to his mental health.
At the listing of the matter on 17 August 2023 the matter was adjourned to allow the father further time to comply with the orders of 8 June 2023. It was noted at the time that there had been proceedings recently instituted in the Local Court with respect to an Apprehended Violence Order being sought to protect the mother and the child.
Trial directions were made by me on 10 November 2023. Neither party has complied with these directions in any way. The parties have had ample time and opportunity to comply with the directions made by this court noting they were made over four months ago.
Neither party sought the court’s leave to grant the indulgence of the extending of time for compliance in the appropriate matter with evidence to ground such application. Such application was only made orally today with the leave of the court.
It appears to be assumed that merely attending court and asking for a further extension of time orally is enough. It is not. It further appears to be the case that if the parties consented to an extension of time to comply that was enough. Again, it is not.
In those circumstances I asked for submissions today as to why the proceedings should not be dismissed noting the parties’ continued failure to comply with orders of this court.
The submissions of the mother appear to be focussed on the impact of the concurrent Apprehended Violence Order proceedings with respect to these parties. I reject the submission that the Apprehended Violence Order proceedings will have the effect of not allowing these proceedings to be heard. The mother submitted that if the proceedings were struck out today, the matter would not be able to be heard for potentially 12 to 18 months. Those consequences lay solely at the feet of the parties. The further submission made by the mother was that there are serious allegations raised by the mother and it is in the best interests of X that the proceedings be heard in circumstances where the matter is unable to be resolved on a final or interim basis.
The father reiterates the submissions of the mother, namely that: -
·the parties are unable to resolve on a final or interim basis the care arrangements with respect to X;
·and the parties will have to relitigate these proceedings if the further indulgence of the court with respect to the adjournment application is not granted.
The Independent Children’s Lawyer submitted that the concurrent Apprehended Violence Order proceedings will not in any way hinder these proceedings from being heard on a final basis.
Section 190 of the Federal Circuit and Family Court of Australia Act (2021) Cth (“the Act”) mandates that this court is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. This overarching principle includes as its objectives the efficient use of judicial and administrative resources available for the purposes of this court, the efficient disposal of the court’s caseload overall, the disposal of all proceedings in a timely manner, and a resolution of disputes at a cost that is proportionate to the cost and complexity of the issues in dispute.
Section 191 of the Act obliges parties to act consistently with this overarching purpose and is complemented by rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (“the rules”). Lawyers must, pursuant to rule 1.04(3), assist their clients to comply with this duty.
Section 192(4) of the Act permits in the court’s promotion of the overarching purpose to dismiss proceedings either in whole or in part and to strike out any Initiating Application or Response 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. This section is complimented by various rules of the court including rule 10.27.
The position of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 provides authority for a court to take into account case management principles when exercising discretion in procedural applications such as this - even to the prejudice of a party, or parties to a particular proceeding. The High Court emphasised that it is not sufficient to pursue just and equitable outcomes merely by reference to the interest of the parties to a particular proceeding. The effect that a procedural decision will have on other litigants and the public’s interest on the use of court resources must also be taken into account.
To my mind, to allow these parties a further opportunity to comply with directions of this court is counterintuitive to those matters. Extensive court resources have been allocated to this matter in circumstances where the court’s resources are finite. Neither party has acted in a manner which is consistent with their mandatory obligations. The result of that is that three days of judicial resources will be wasted.
If I were to accede to the parties’ joint application, they would in effect have priority in being given a three-day hearing date over parties who have complied with trial directions and are awaiting the allocation of hearing dates. I am completely unaware as to why neither party has complied with the trial directions of this court made over four months ago as I have no evidence before me explaining such non-compliance.
Having regard to all of the circumstances that I have recorded I am satisfied that the Application and Response of each party in this matter should be struck out and will so order.
The parties are of course at liberty to commence fresh litigation as they may be advised.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Murdoch. Associate:
Dated: 18 March 2024
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