Riaz and Alim

[2019] FamCA 1039

FAMILY COURT OF AUSTRALIA

RIAZ & ALIM [2019] FamCA 1039

FAMILY LAW – PRACTICE AND PROCEDURE – where the father requested to appear by telephone – where the father could not be reached by the court using the contact number the father provided – trial directions made in the absence of the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Riaz

RESPONDENT: Ms Alim

INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers and Solicitors

FILE NUMBER: MLC 9910 of 2018

DATE DELIVERED: 16 December 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 16 December 2019

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Mr Knight, Knight Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor, Macgregor Barristers and Solicitors

Orders

1. That all applications for final orders be adjourned for hearing before Justice Wilson on 2 March 2020 at 10 am as a two-day matter and that the evidence in chief of all witnesses be given by affidavit.

2. The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 10 September 2019.

3. That by 4.00 pm on 20 January 2020 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

4. That the applicant pay all setting down and trial fees by 4.00pm on 20 January 2020.

5. That by 4.00pm on 10 February 2020 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

6. That by 4.00pm on 17 February 2020 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

7. That by 4.00 pm on 24 February the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

8. Leave is granted to the parties and the Independent Children’s Lawyer to file a report in relation to the issues in dispute attached to an affidavit in accordance with the dates identified in paragraph 3, 5 and 7 from any treating doctor, psychologist or therapist; contact centre staff member, professional supervisor, childcare worker or teacher.

9. That no party file any further material other than as provided by these orders without leave of the Court.

10. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

11. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

12. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

13. That the practitioners for the parties file and serve electronically to … by 4.00pm on 26 February 2020 the following:

    (a)       a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and

    (c)       a bullet-point summary of argument in relation to the issues in dispute.

14. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

AND THE COURT NOTES:-

A. That the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 10 September 2019;

B.        That the parties have each been advised by the Court:-

(a)That pursuant to those requirements, neither party may cross-examine the other party personally;

(b)That pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(c)As to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d)That a copy of these orders will be provided by the Court to Victoria Legal Aid, which administers the said scheme.

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 Riaz & Alim 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 MELBOURNE

FILE NUMBER: MLC 9910 of 2018

Mr Riaz

Applicant

And

Ms Alim

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court today at a callover in relation to the listing of the parties’ outstanding parenting applications.  The parties were forwarded a letter from the Court on 14 November 2019 notifying them of the listing of this callover and requesting that they file certain documents in readiness for the callover this day.  Those documents required were to be filed by 11 December 2019.  In this instance, no party has filed any documents in compliance with those directions.  However, the position is that the mother is represented by her lawyer, and the independent children’s lawyer appears before the Court today. 

2. The only communication received from the father in response to the notice of this date is an email forwarded by him to the case coordinator requesting that the Court permit him to appear by telephone.  There was no objection to that course by either the mother or the independent children’s lawyer.  When the matter was called on today at approximately 12.45pm, my court officer attempted to call the father at the number provided by him; the father was not able to be raised by telephone. 

3. The matter was stood down and during that period an email was sent to the father by my legal associate in order to ascertain whether there is any other means by which he can be contacted.  There has been no response to that email communication.

4. In circumstances where I am satisfied that the father was aware of today’s hearing, he having written to the case coordinator requesting to appear by telephone, I propose to proceed with this procedural hearing and make trial directions.

5. The issue before the Court relates to future parenting arrangements with respect to the parties’ two children, who are aged 17 and 14.  There is a section 11F report, prepared in October 2018, and both children were interviewed for the purposes of the preparation of that assessment.  The indications in that assessment are clear, insofar as the children have stated that they have no desire to spend any time with or communicate with the father.  What is sought by both the mother and the Independent Children’s Lawyer is that the matter be listed for hearing. 

6. If the father participates in the process, he will then have the opportunity to be heard in relation to the issues before the Court.  What I propose to do in the circumstances is make trial directions to ensure that the matter can progress.  It will afford all parties an opportunity to fairly put their case before the Court.  In the event that the father does not engage with the process, it will then be open to the other parties to seek to proceed with their applications on an undefended basis. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 December 2019.

Associate: 

Date:  16 December 2019