PENDER & PERCIVAL

[2017] FamCA 787

FAMILY COURT OF AUSTRALIA

PENDER & PERCIVAL [2017] FamCA 787

FAMILY LAW – PRACTICE AND PROCEDURE – Ex parte application – where application not accompanied by supporting affidavit – application to rely on evidence not available to other party involving denial of natural justice

Family Law Act 1975 (Cth) Part XIA and Division 2

APPLICANT: Ms Pender

RESPONDENT: Mr Percival

INDEPENDENT CHILDREN’S LAWYER: Mrs Lloyd

FILE NUMBER: CAC 2052 of 2016

DATE DELIVERED: 21 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Gill J

HEARING DATE: 21 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Ex parte application

Orders

1. The application in a case filed by the mother on 13 September 2017, is dismissed.

2. I direct that the Registrar cause a copy of the application in a case and a copy of this judgment and reasons to be served upon the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pender & Percival has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBROUNE

FILE NUMBER: CAC 2052 of 2016

Ms Pender

Applicant

And

Mr Percival

Respondent

REASONS FOR JUDGMENT

1. Ms Heinze appears for the applicant mother, Mrs Lloyd as the Independent Children’s Lawyer.  There is no appearance from Mr Percival, he not being on notice of this ex parte application.

2. Today an application is being made returnable by means of an application in a case filed by the mother on 13 September 2017.  That application in a case seeks that an affidavit be filed by the mother and be considered within the Court proceedings without the requirement for the affidavit to be filed and served upon the father, with a number of orders to support that arrangement and with the effect that the father would not be on any notice of the contents of that affidavit.

3. At this stage, there has been no filing of that affidavit and there is no affidavit in support before me in the application in a case.  I read no affidavit in support of this application in a case.

4. The applicant relies upon the suppression and non-publication powers of the Court contained within Part XIA and Division 2 of the Act. On my reading of those provisions, they do not support an order by the Court which would prohibit a party from receiving and knowing the material which is to be used against that party in the proceedings. To do so would be a fundamental denial of natural justice to one of the parties in the proceedings. Absent specific authority which goes to the power of this Court to be able to deny a party natural justice, I refuse the application, particularly under circumstances where there is no affidavit in support of that application.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 September 2017.

Associate: 

Date:  21 September 2017