Rikki & Rikki
[2023] FedCFamC1F 1003
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rikki & Rikki [2023] FedCFamC1F 1003
File number: SYC 8096 of 2019 Judgment of: CAMPTON J Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where comprehensive trial directions were made on 23 February 2023 and the matter was listed for final hearing over five days in February 2024 – where such trial directions as to the filing of material has been extended on four occasions and remains absence compliance by each of the mother and father – where the parties habitually do not comply with orders of the Court – where the parties did not follow procedural requirements identified I the rules and by way of trial directions for an extension of time – trial dates vacated – trial directions amended including self-executing orders striking out the substantive relief of any party defaulting in complying with amended directions permitting the party not in default to proceed on an undefended basis Legislation: Federal Circuit Court and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 22 November 2023 Place: Sydney Solicitor for the Applicant: SCW Legal Solicitor for the Respondent: Arch Law (Australia) Pty Ltd Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
SYC 8096 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RIKKI
Applicant
AND: MS RIKKI
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The listing of this matter for trial over five days commencing 5 February 2024 is vacated.
2.The time for each party to file and serve a single consolidated affidavit relevant to their case and a single affidavit from each other witness upon which they intend to rely at trial is extended until 13 December 2023.
3.In the event a party fails or neglects to comply with Order 2 as to filing affidavit evidence for trial, the amended initiating application or amended response as filed by the party in default will be struck out, and the matter will proceed on an undefended basis as against the party in default.
4.The wife, on behalf of she and the husband, be at liberty to do all things as are necessary to instruct a single real property valuation expert to undertake a report as to the value of the property at B Street, Suburb C, the parties to equally meet the cost of that valuation, and in the event the husband fails or neglects to contribute to 50 per cent of that cost, the wife be at liberty to seek recovery of those funds as against the husband at the trial, the wife to provide the solicitors for the husband with a copy of the letter of instruction to the expert.
5.The wife cause the affidavit exhibiting the report of the single real property valuation expert to be filed and served as soon as it is available.
6.On or before 30 November 2023, the wife shall serve upon the husband’s solicitors a proposed joint draft balance sheet to include all assets, liabilities, superannuation interests and financial resources as she understands are suggested to be relevant and to include values as she understands are alleged by each party.
7.The husband shall, on or before 7 December 2023, make such entries to the wife’s draft joint balance sheet as he considers appropriate to reflect his contra-allegations and any values that he asserts or as are agreed, and he shall return the draft joint balance sheet to the wife’s solicitors before 7 December 2023.
8.Wheresoever controversy exists as the inclusion of an item or value of an item in the draft balance sheet, a footnote shall be appended by the party to explain the controversy.
9.Upon completion of the single expert valuation, the balance sheet will be updated and amended to reflect any determined or agreed value.
10.The wife shall cause a final settled version of the draft joint balance sheet to be filed and served on or before 14 December 2023.
11.In the event the husband fails or neglects to comply with the orders as to the preparation of the draft joint balance sheet, the relief sought by the husband in his amended response as to property filed 12 May 2023 shall be struck out and the wife shall be permitted to proceed with the property adjustment proceeding on an undefended basis as against the husband.
12.The trial directions made 23 February 2023 save and except as varied by these orders are otherwise confirmed.
13.The proceeding is listed before me by Microsoft Teams at 9.30 am on 30 January 2024 for possible urgent allocation of trial dates subject to compliance with these directions and with the directions identified in the orders made 23 February 2023.
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 Rikki & Rikki has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These proceedings as to parenting and property initiated by the father in the Federal Circuit Court of Australia on 28 October 2019 and transferred to what was the Family Court on 3 November 2020. The proceeding has been in my docket since that time and is the subject of trial directions made 23 February 2023. Each of the parents and independent children’s lawyer appeared on the making of the trial directions.
The parenting proceeding are as to two children, X, born 2011 and Y born 2013, who have primarily lived with their mother since the parties’ separation. I am told during the course of the listing today that the child Y has spent three nights supervised time with the father over the past seven-week period and that he is presenting with a number of different behavioural challenges that promote a determination of the outstanding parenting proceeding as soon as possible.
The trial directions made on 23 February 2023 record the litigation history of the proceeding and the nature of the issues in dispute, as follows:
D.The parties have undertaken up to 4 primary dispute resolution events including family dispute resolution as ordered on 15 December 2020 and further family dispute resolution ordered 19 August 2021. The parties are no closer to a compromise of any of the outstanding issues in the litigation and urge the Court to allocate final trial dates.
E.A report from the single parenting expert [Mr D] dated 25 July 2022 has been released to the parties. The family engaged with [Dr E] for therapy that concluded in November 2021 an investigation being undertaken by the Department of Communities and Justice (“the Department”) as to allegations of sexual abuse occasioned by the father on the children. The Department’s investigation has concluded. The children are undertaking a course of therapy arranged by the Department subsequent to that investigation.
F.The mother contends for the purposes of the parenting proceedings that the children are exposed to an unacceptable risk of harm in the event they spend time with the father on an unsupervised basis.
G.The parties have indicated that the property dispute is of a limited compass in that the items of property available for adjustment are a home subject to a mortgage, motor vehicle, personalty and superannuation accumulation interests. It is uncontroversial that the husband received an inheritance of approximately $600,000 about 12 months prior to the parties’ separation. An issue exists between the parties as to the application of those funds.
H.Each of the parents have been offered an opportunity to bifurcate the property matter from the parenting matter such that the property matter could be allocated earlier trial dates of one day or less. They each agree that having regard to what appears to be an aspect of the mother’s contribution case relying on the impact of family violence on her contributions as identified by the Full Court in Kennon [1997] FamCA27 (1997) FLC92-757, 22 Fam LR 1, that there is significant evidence on that subject matter that is applicable to each of the parenting and property disputes such that bifurcation is not practical, sensible or cost efficient. The Independent Children’s Lawyer appropriately urges, having regard to the history of the litigation, the nature of the contentions made by each parent as against each other and the other matters recorded earlier in these notations, that trial dates be allocated as soon as possible.
Cast against those matters, the proceedings were listed for trial over five days, scheduled to commence on 5 February 2024. Directions were made for the parties to file and serve trial affidavit material by 22 September 2023.
The parties have consensually extended the time for trial affidavits to be filed on no less than four occasions such that on the fourth occasion the trial affidavit material was to be filed and served by 6 November 2023. Neither parent has filed their trial affidavit material.
The solicitor for the mother advises that her trial affidavit material was completed some time ago. He contends that there would be prejudice to the mother in the event she filed that material and served it in circumstances where the father is the applicant. I do not accept that contention. The orders made as to the filing of affidavits for trial were not sequential, nor were they dependent on one party or the other party filing their trial material in any particular order. It is somewhat disingenuous for the mother to make such a submission cast against the trial directions made absent demur or issue.
The parties by way of the orders made 5 February 2024 were directed to develop by a sequential method of preparation and input and then to confer and prepare a draft joint balance sheet identifying their contended property interests to be filed by 17 November 2023. Unsurprisingly, that too has not been the subject of compliance. I am advised by the solicitor for the mother today that the progression of a single expert opinion as to the valuation of the parties’ real property is yet to commence.
The solicitor for the mother shifts blame for the failure of compliance with the trial direction and of the matter being prepared for trial to the father and his attorneys, in that the father has changed solicitors on a number of occasions, while acknowledging that lawyers who he has retained have encountered personal challenges.
No party has relisted the matter pursuant to either of the following directions made 23 February 2023:
Liberty to Re-List
14.Either party or the Independent Children’s Lawyer, have liberty to apply to relist the proceedings on short notice in the event of issues arising in relation to preparation for trial by way of email request to my chambers and in the event of such relisting the party requesting the relisting shall append to the email, copied to all parties, a minute of order sought on the relisting for mention.
15.In the event that any party or the Independent Children’s Lawyer, becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
I accept that litigants on occasions do not have their interests best promoted or protected by their legal representatives. That said, ultimately, litigants bear responsibility for compliance with the Court’s orders and directions.
So that it is clear, directions and orders made by the Court are not suggestions or guidelines. They are orders that require compliance. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) set out clearly the consequences of failures by parties to comply with directions for trial.
At present, notwithstanding the submissions made by the legal representatives for each of the parents and the independent children’s lawyer, I have no confidence that this matter can be ready for trial on the dates currently allocated, being five days commencing 5 February 2024.
As identified by the High Court in Aon Risk Services v Australian National University (2009) 239 CLR 175, the Court is vested with authority in managing litigation to make determinations to ensure that litigation is disposed of efficiently and effectively. The Court, by way of general principles and obligations in ss 67 and 68 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth), carries with it a responsibility not only in relation to the efficient conduct of litigation in a particular matter but an obligation by way of a public interest to ensure the efficient use of the Court’s resources when making procedural orders and requiring compliance with them.
So that it is clear, parties to a proceeding are not entitled to consume an unlimited amount of public resources in the pursuit of their own interests. A course adopted by the Court consistent with its obligations to properly apply public resources is eminently sensible and reasonable.
The goal of case management is to create just and efficient outcomes for the parties in a particular case and for all other litigants and stakeholders accessing the Court’s resources including the community at large.
In this matter, the parties have been given ample opportunity to prepare their case for trial. I do not accept that the explanations provided by the legal representatives of the parties today are adequate to achieve a further procedural indulgence by way of maintenance of the current trial dates. Remedies as to costs in this matter are not an adequate remedy for prejudice suffered by other litigants and stakeholders accessing the courts resources., but amendment to trial dates and self-executing orders may well do so. The parties ought to be under no misapprehension. The court requires its orders to be taken seriously. Failure to do so will now produce a restricted capacity to continue to participate in the litigation.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 22 November 2023
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