Revie & Albrecht
[2024] FedCFamC1F 66
•16 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Revie & Albrecht [2024] FedCFamC1F 66
File number(s): SYC 4957 of 2021 Judgment of: HOWARD J Date of judgment: 16 January 2024 Catchwords: FAMILY LAW – PARENTING – Where the applicant mother and the third respondent father failed to comply with the terms of a self-executing Order – Where, in any event, neither the applicant mother nor the third respondent father provided any evidence to explain their failure to comply with the strict terms of a procedural order – Where the matter shall proceed on an undefended basis as against the applicant mother and the third respondent father. Legislation: Family Law Act 1975 (Cth) ss 68B, 102NA, 114
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth Pt VIII, rr 1.04, 1.33, 6.06, 6.37
Cases cited: Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 16 January 2024 Place: Brisbane Solicitor for the Applicant: Mr Kutazi Solicitor for the First and Second Respondent: Mr Gad Solicitor for the Third Respondent: Ms Hariri Solicitor for the Independent Children’s Lawyer: Ms Tin ORDERS
SYC 4957 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REVIE
Applicant
AND:
MR B ALBRECHT
First Respondent
MS ALBRECHT
Second Respondent
MR C ALBRECHT
Third Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
16 JANUARY 2024
UPON APPLICATION MADE TO THE COURT by Mr Kutazi, Solicitor appearing via electronic means on behalf of the APPLICANT, Mr Gad, Solicitor appearing via electronic means on behalf of the First and Second Respondents, Ms Hariri, Solicitor appearing via electronic means on behalf of the Third RESPONDENT and Ms Tin, Solicitor appearing via electronic means as the INDEPENDENT CHILDREN’S LAWYER.
NOTATION:
A.Neither the applicant mother nor the third respondent father filed their affidavit of evidence in accordance with the Order made by the Honourable Justice Campton on 27 October 2023.
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That, as against the applicant mother and the third respondent father, this matter proceed by way of an Undefended Hearing commencing at 10.00am on 19 February 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Sydney before the Honourable Justice Howard.
2.That the Initiating Application and any Amended Initiating Applications filed by the Applicant are dismissed.
3.That the Response and any Amended Responses filed by the Third Respondent are dismissed.
4.That the First Respondent, the Second Respondent and the Independent Children’s Lawyer remain obligated to comply with the terms of the Order made by the Honourable Justice Campton on 27 October 2023.
5.That the First Respondent, the Second Respondent and the Independent Children’s Lawyer and their legal representatives (if any), shall personally attend Court on 19 February 2024.
6.That the Applicant and the Third Respondent have leave to appear at Court on 19 February 2024 and those parties also have leave to make submissions to the Court in relation to the final parenting Orders.
7.That given that the matter is proceeding as an Undefended Hearing on 19 February 2024, there shall be no cross examination of witnesses, without the express leave of the Court obtained on that day.
8.That notwithstanding that the Court has ordered that the matter is to proceed on an undefended basis as against the Applicant mother and the Third Respondent father – both of those parties have leave to file and serve a short affidavit (comprising of no longer than ten (10) pages) in order to update the Court in relation to their individual current living arrangements; working arrangements and state of health – in order to assist the Court in making final parenting Orders in the best interests of the child (X, born 2018).
IT IS NOTED:
A.That the Court, on 16 January 2024, explained to the parties the procedure to be followed at the Undefended Hearing on 19 February 2024 will be outlined by the trial Judge on that day – but noting that such procedure will include the opportunity for all parties (including the Applicant mother and the Third Respondent father (and via their lawyers, if any)) to make submissions in relation to the terms of the final parenting Orders.
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 Revie & Albrecht has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 16 January 2024 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court relates to one child, X, born 2018. X is the son of the applicant mother, Ms Revie, and the third respondent father, Mr C Albrecht. The first and second respondents are the paternal grandparents. The parents met in 2018. They commenced co-habitation in 2018. They lived with the paternal grandparents for about a month. In April 2019 they separated on a final basis. The mother hast one other child - D, born 2021. After the separation of the parents, the father was arrested and spent time in prison.
In about early 2021, the mother moved with the child to Queensland. She said in her August 2021 affidavit, “to get away from the father,” and that she wanted to be closer to the father of her newborn child D. I note the father apparently has some other children as well. For present purposes, I am giving a brief summary of the current state of play with this family. What happened next was that the paternal grandparents withheld X and, subsequently, Orders were made by a Court exercising jurisdiction under the Family Law Act1975 (Cth) (“the Act”) whereby the child, X, on an interim basis, was ordered to live with the paternal grandparents and spend time with the mother supervised at a contact centre and spend time with the father supervised by the paternal grandparents.
The final Orders sought by the paternal grandparents are along those lines. Mr Gad, solicitor today, appears for both of the paternal grandparents. He will have to withdraw on the record as the solicitor for the paternal grandmother in the near future because Legal Aid New South Wales apparently will only fund representation for one party if the parties’ positions are aligned. Those final Orders sought by the paternal grandparents are supported by the father. The father is represented by Ms Hariri, solicitor. The mother is represented by Mr Kutazi, a solicitor, and the mother, it seems, has recently changed her position. I am told by her lawyer that she does ultimately seek that the child come back to live with her, but that it be some sort of a staged process.
But the matter that is currently under consideration relates to a question of procedure and how the matter should be conducted from here on. The matter has had a troubled history because I note that in 2023, the matter came on before the Honourable Chief Justice Alstergren in Sydney. The Chief Justice made an order on 12 September 2023; and that order stated in Order 4:
“4.In the event that the Applicant does not appear on the next adjourned date without reasonable excuse, the Court may proceed with this matter on an undefended basis.”
Note that the Chief Justice used the word “may” in that particular Order. The notations to the Order make it clear that the mother’s solicitor appeared on that occasion, that is, Mr Kutazi from Solve Legal, and he obviously informed the Court that he was not able to obtain instructions from the mother - because that is the notation made to the Order.
I apprehend that the hearing must have taken place electronically. It says the Order was made at Melbourne. Perhaps the Chief Justice was in Melbourne on that occasion and the lawyers were in Sydney. Certainly, all the same people appeared as today, that is, Mr Kutazi appeared for applicant mother, Mr Gad appeared for the grandparents, Ms Hariri appeared for the father and Ms Tin as the ICL.
On 3 October 2023 the Chief Justice, as Ms Hariri has just told the Court, referred the matter to the Chambers of Campton J. for the allocation of a trial date. The matter was then listed before Campton J.
Campton J. on 27 October 2023 had before him the parties, again, electronically by Microsoft Teams. Mr Kutazi appeared for the mother. Mr Gad appeared for the paternal grandparents. Ms Hariri appeared for the father. And Mr Kennard appeared as the agent for the ICL. His Honour helpfully made some notations at the commencement of the Order. The notations made by Justice Campton on 27 October 2023 are as follows:
“THE COURT NOTES THAT:
(a)These are parenting proceedings as to a child [X] (“the child”) born […] 2018 who is currently approaching 5 years of age.
(b)The applicant in the proceedings is the child’s mother, the first respondent and the second respondent in the proceedings are the paternal grandparent’s and the third respondent is the father.
(c)The child is the mother’s eldest of three children. She has two other infant children.
(d)The child lives with the paternal grandparent’s.
(e)The father’s parenting relief is broadly aligned with that of his parents.
(f)Pursuant to orders made by a senior judicial registrar on 1 June 2023, the father exercises time with the child for three hours each week supervised by the paternal grandparent’s.
(g)The orders made by a senior judicial registrar on 1 June 2023 provided for the paternal grandparent’s and the mother to complete an intake assessment at [E Contact Centre] and thereafter for the mother to spend supervised time with the child for two hours each alternate week. The paternal grandparent’s have competed the intake assessment. The mother has not commenced to spend supervised time with the child at [E Contact Centre].
(h)A comprehensive Family Report was prepared by a Regulation 7 Family Consultant on 24 October 2022.
(i)The mother seeks orders for the child to live with her. The paternal grandparent’s seek orders for the child to live with them. The father agrees with the order sought by the paternal grandparent’s.”
Order 1 of 27 October 2023 states that:
“1.Pursuant to s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the parties are to note and comply with the overarching purpose as identified in s 67 of the Act and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).”
Section 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) requires the party to act consistently with the overarching purpose. The overarching purpose in s 67 of the FCFCOA Act states, in subsection (1):
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Section 67(2)(b) highlights the efficient use of the judicial and administrative resources available for the purposes of the Court. Section 67(2)(c) highlights the importance of the efficient disposal of the Court’s overall caseload. The rule of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) referred to in Order 1 by Campton J. is r 1.04. It reflects s 67 of the FCFCOA Act. Rule 1.04 of the Rules states that:
(1)The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
(2)Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(3)A party’s lawyer must, in the conduct of a proceeding before the court (including negotiations for settlement) on the party’s behalf:
(a)take account of the duty imposed on the party referred to in subrule (2); and
(b)assist the party to comply with the duty.
By the Order of Campton J dated 27 October 2023:
(a)the mother was ordered to file any amended initiating application before 3 November 2023;
(b)the father was ordered to file any amended response by 10 November 2023; and
(c)the paternal grandparents were ordered to file any amended response by 17 November 2023.
My reading of those Orders, 4, 5 and 6, is basically that if the parties decided to amend their application or responses, then they were given particular dates by which they must do so. The mother, if she wanted to file an amended initiating application, was required to do so on or before 3 November 2023. The mother purported to file an amended initiating application on Boxing Day, 26 December 2023, at about 7.00pm at night.
Of particular note is Order 7, which states that:
“7. On or before 8 December 2023, each party is to file and serve
a)a single, consolidated trial affidavit relevant to their case;
b)a single, affidavit of each other witness they intend to rely upon at trial;
c)an undertaking as to disclosure in accordance with r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
All affidavits are to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).”
The parties were also obligated to file and serve a single affidavit of each witness they intended to rely upon at the trial. Order 8 states:
“8.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.”
Order 9 requires close attention. Order 9 states:
“9.In the event the mother or the father fails or neglects to file their affidavit evidence pursuant to these orders, the Independent Children’s Lawyer is directed to forthwith advise my chambers of same by email copied to all parties. In that circumstance the party in default is on notice that their substantive relief by way of application or response will be struck out and the other parties will be granted leave to proceed on an undefended basis as against the party in default.”
Order 9 is focused upon the mother and the father. Order 9 is not focused upon the paternal grandparents. Order 9 contemplated a situation whereby the mother or the father failed to file their affidavit evidence on or before 8 December 2023. In those circumstances, the ICL was directed to forthwith advise the Chambers of Campton J. by email copied to all the parties in the event of such a failure by either the mother or the father to file their affidavit evidence in accordance with the time limit imposed by the Orders.
The ICL was directed to forthwith advise Campton J’s chambers. I would have expected notification ought to have been sent to Campton J. on 9 December 2023. It was not until 18 December 2023 that the ICL wrote to the Judge’s chambers. All parties were copied into the email. That email will be Exhibit 1 in the matter currently before the Court. In any event, the ICL did, on 18 December, write to the Judge’s chambers. The matter was set down for a Case Management Hearing before me today.
Order 2 of the Orders of 27 October 2023 contained a typographical error and the matter was, indeed, on 27 October 2023, set down for five days to commence before me in Sydney on 19 February 2024. On 21 December 2023, an Order was issued by me setting the matter down for a Case Management Hearing for today, 16 January 2024. I asked for some submissions from the parties in relation to the operation of Order 9, in particular, whether the second sentence of Order 9 is a self-executing order. The view that I have come to is that it is a self‑executing order. The second sentence reads:
“In that circumstance the party in default is on notice that their substantive relief by way of application or response will be struck out and the other parties will be granted leave to proceed on an undefended basis as against the party in default.”
It is crucial to note the use of the word “will” in the phrase “will be struck out”. Again, that word appears on the last line of the order, where it says, “… and the other parties will be granted leave to proceed on an undefended basis…”. It is important to note the contrast of that language to the language used by the Chief Justice when he made an Order in relation to this matter on 12 September 2023. In Order 4, as I highlighted earlier, the Chief Justice ordered; that the Court “may” proceed with this matter on an undefended basis on the next adjourned date. And his Honour there, of course, was talking about the 3 October 2023 listing date.
Use of the word “will” on two occasions in the Order of Campton J on 27 October 2023 makes it clear beyond any doubt that the order is framed in mandatory terms.
The parties had from 27 October 2023 until 8 December 2023 to file their single consolidated trial affidavits. I note that a submission was made that other parties, namely, the grandparents, may not have complied with the order – and other aspects of the order may not have been complied with. But Order 9 is focused, as I said earlier, on the mother and the father. It is not focused on the grandparents. It seems to me that the order does not leave any scope for the Court to take a different approach, but rather to proceed now to strike out the applications and responses of the mother and the father.
Even if I am wrong about that and even if it were the case that the Court still retains some discretion to vacate Order 9 (of 27 October 2023) and the Court retains a discretion to grant leave to the mother and the father to rely upon their late filed affidavits, it seems to me that before the Court could even consider granting leave, the Court would have to have before it evidence upon which the Court could act to grant such leave.
The Court has before it an affidavit of the mother that was filed last night, 15 January 2024 at almost 6.00pm ACT time. The filing of that affidavit was in purported compliance with Order 7 from 27 October 2023, which, of course, required that the mother file her consolidated trial affidavit by 8 December. The father filed his consolidated trial affidavit on 17 December 2023.
Today in Court, Mr Kutazi, the solicitor for the mother, has told the Court that he had some difficulty getting instructions from his client. Ms Hariri told the Court that – on behalf of the father, she was waiting to see whether the mother was going to amend her application before filing the consolidated trial affidavit for the father.
Crucially, in particular so far as the mother is concerned, I do not have before me any evidence from the mother upon which the Court could exercise any discretion (if one existed) to grant leave to the mother to now rely upon the late affidavit. There is no evidence of an explanation as to why the affidavit is late and there is no evidence by way of explanation as to why the affidavit was not filed in compliance with the Order of Campton J. There is no evidence as to any excuse as to why the affidavit was late and was not in compliance with the order of Campton J. So it seems to me that what I am really being asked to do by the mother, the father and by the Independent Children’s Lawyer is to merely ignore Order 9 made by Campton J.
The Rules and the Act that came into effect in 2021 provide mechanisms for case management of matters before this Court. Everyone appearing on behalf of the parties today knows that the Family Law jurisdiction in Australia is one of the busiest jurisdictions in the country. It is well‑known that the resources of the Court are highly sought after not only by the litigants in this case, but by all the other litigants waiting in line behind them. There are many other cases in the list in Sydney to be determined by the Judges of the Court. That is why orders like Order 9 are made; to require the parties to follow the directions of the Court and if they do not follow them, then there are consequences and sometimes the consequences are serious. This is one of those occasions.
So my view is even if I did have the power or jurisdiction to set aside Order 9, then I would not do it because there is no evidentiary basis upon which I could act to take that step. It is simply not acceptable for parties to fail to comply with very clear orders and directions of the Court. I note r 1.33:
“(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).”
It is to be noted that r 1.33(1) states that 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. What we are looking at here is the procedural order of Campton J made 27 October 2023.
The effect of r 1.33(1) is that the filing of the affidavit by the mother at 5:52pm ACT time on 15 January 2024 is of no effect. The filing by the mother of an amended initiating application on 26 December 2023 at 7.16 pm ACT Time, that, it seems to me, is of no effect. The filing by the father of an affidavit on 17 December 2023, that step is of no effect. Rule 1.33(2) grants very broad powers to the Court. Amongst other things, it can dismiss all or any part of the proceeding. It can determine the proceeding as if it were undefended. It can order costs. It can prohibit a party from taking a further step in the proceeding until the occurrence of a specified event.
The Court notes r 1.33(2)(f). I have referred to the overarching purpose of the Rules. Mr Kutazi and Ms Hariri made a submission that the Court should take some action under r 1.33(2)(f) and, for instance disregard or set aside Order 9 made by Campton J in October 2023. I cannot see that there is any merit in the arguments put forward by either of those solicitors concerning that rule. The overarching purpose of the rules includes, very importantly, not only that the Court is to facilitate the just resolution of disputes, but it is to do so according to law and as quickly, inexpensively and efficiently as possible. The arguments relating to r 1.33(2)(f) do not have merit, in my view.
But one of the submissions made was one of the more interesting ones I have heard in the past 17 years; that the Court should be reluctant to make an order or take a step because there might be an appeal. If Trial Judges were as scared of their own shadow as some lawyers might think they are, there would not be much work done or orders made in the Family Law jurisdiction in this country. There is no merit in that sort of an argument. The Court is required to proceed according to law. The view of the Court is that Order 9 made by Campton J. is in clear and unequivocal terms. In any event, it is clear enough for this Court now to discern that the Order was intended to and does in fact operate as a self-executing order.
I have given my reasons in that regard. I have also given additional reasons that if my view was wrong I did not have the power to set aside that Order in the absence of evidence upon which such a discretion could be exercised. I should just put it another way. I would not grant an application, presumably made orally today, to set aside that order because it seems to me there is no proper basis to do so. There is no proper basis. There is no proper evidentiary basis to set aside Order 9 of Campton J and there is no evidence to support the granting of leave to allow the mother and the father to rely upon their late filed material.
Mr Gad, the solicitor for the grandparents, made a submission that the Court should proceed on an undefended basis and I agree with that submission. It seems to me that what I have been told by Mr Kutazi today is that for a period of time he was not able to get instructions from his client. I am not precisely sure what that period of time was, but I infer from what he was saying that it related to the preparation of the affidavit. What else could it have referred to? When I take also into account what the Chief Justice had noted in his Order of 12 September 2023 – on that occasion the Court was told that the solicitor, Mr Kutazi, was having trouble getting instructions.
I make it very clear. I absolutely accept what Mr Kutazi has told the Court. I do not for one minute doubt Mr Kutazi’s submission or his professional standing. I want to make that abundantly clear. And Mr Kutazi and Ms Hariri tried their best today to convince the Court that the Court should ignore Order 9 made by Campton J. and permit the parties to rely upon their material and allow the matter to proceed normally, that is to say, on a defended basis from 19 February 2024.
One of the important points to note about the second sentence of Order 9 is that there is not just one mandatory aspect to it, there are two. Because it says not only “will” the application or response be struck out, it says that the other parties “will” be granted leave to proceed on an undefended basis against the party (or presumably parties), in default.
What needs to happen in order to give effect to Order 9 is that the mother’s application and any amended applications that were filed thereafter will be dismissed. The father’s response, or amended responses as the case may be, they will be dismissed. Even though r 1.33 of the Rules states that the affidavits that were filed late and the amended application of the mother that was filed late are of no effect, it seems to me that to ensure clarity, the Court ought to nonetheless issue an order striking out those affidavits and the amended application filed on Boxing Day. Now, I appreciate there may be an argument that if the filing of a document such as an amended application is a step which has no effect, it begs the question how would it be that the Court dismissed such an amended application, but through long experience in this jurisdiction, I find it is prudent to take the course that I have outlined.
The matter will be set down for an undefended hearing – undefended as against the mother and the father. As to the precise procedure to be followed on 19 February 2024 in Sydney, the parties should work on the following basis: there are already filed in the Court affidavits of all the parties, and I am not referring now to the affidavit filed by the father on 17 December 2023, and I am not referring to the affidavit of the mother filed 15 January 2024; however, I will be taking into account affidavit evidence filed by those parties previously. I will take into account the family report and any other evidence filed on behalf of the ICL. I will take into account the responses of the grandparents, the orders sought and any affidavits filed on behalf of the grandparents.
If the grandparents did file affidavits in compliance with the Order 7 of 27 October, I will take those into account. Also, I will consider granting leave to those grandparents to rely upon any affidavit filed after that date because they were not the subject of Order 9. It is very apparent to me that there was no inadvertence in this case. Campton J., with laser-like precision, focused on the mother and the father and placed very specific obligations upon those two parties and framed Order 9 with those two parties in mind, not with the grandparents in mind. If I did not already make it abundantly clear, the resources of the Court are a serious matter to be taken into account (Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175).
It seems to me that the approach that the Court is taking today is, basically, giving effect to Order 9 and the other orders made by Campton J. on 27 October 2023. The parties are, of course, all required to attend Court on 19 February 2024. The lawyers for the parties are all required to attend Court in person in Sydney on 19 February 2024. My current intention is for the matter to proceed on the basis of submissions from all parties: the ICL, the lawyer for the father, the lawyer for the grandparents, the lawyer for the mother.
An order will issue giving to the parents (the applicant mother and the third respondent father) leave to provide the court with a short updating affidavit as to their current living arrangements and other circumstances. This will ensure that the Court, when it decides the case on 19 February 2024, is provided with material that is completely up to date. The Full Court has made it clear many times that the procedure to be undertaken on the hearing of a matter on an undefended basis is a matter for the discretion of the Trial Judge. The parties (the mother and the father) are not being required by the Court to provide any further short affidavit. It is up to the mother and the father.
The grandparents and the ICL can request the leave of the Court on the day of the hearing to rely on additional material should it become necessary. I understand and appreciate that very often trial judges will not have any regard whatsoever to evidence filed by a party against whom a matter is proceeding on an undefended basis. Once again, I say that is a matter that always stays within the discretion of the trial judge.
I will be issuing a direction that there is to be no cross-examination of any party or witness without the leave of the Court on that day. I want to make it abundantly clear that it would be extremely unusual for me to permit any cross-examination whatsoever at an undefended hearing. It may be, though, that the ICL wishes to call some evidence from the family report writer. I would give consideration to some cross-examination of the family report writer. That is just one example of the way I have proceeded with an undefended hearing in the past.
I anticipate that the matter will not take more than one day on 19 February 2024 and that it will mainly be hearing submissions from the lawyers at a time when they can refer me to the evidence they want to take me to.
Because of the conclusion I have reached in relation to the proper construction of Order 9 and (alternately) because of the view that I have reached in relation to the lack of evidence to explain the failure by the mother (in particular) and the father to comply with Order 9 of Campton J – I do not consider it necessary to make a specific reference to any of the other submissions made on behalf of the parties (in particular the mother, the father and the ICL). This includes any submission relating to prejudice or a lack of prejudice. The Court is not obligated, in providing reasons for judgment, “to mention every fact or argument relied on by the losing party as relevant to an issue.” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 [62]).
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 16 January 2024
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