Sachar & Kalita (No 2)

[2021] FedCFamC1F 236

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sachar & Kalita (No 2) [2021] FedCFamC1F 236

File number(s):	MLC 5428 of 2018
Judgment of:	GILL J
Date of judgment:	26 November 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Child-related application filed by uncle of children – Proceedings characterised by non-participation of the applicant – Application set down for hearing on short notice – Applicant sought adjournment on morning of hearing – Adjournment granted.
Division:	Division 1 First Instance
Number of paragraphs:	6
Date of hearing:	26 November 2021
Place:	Canberra
Solicitor for the Applicant:	Self-represented litigant
Solicitor for the First Respondent:	Legal Aid, ACT
Solicitor for the Second Respondent:	No appearance

ORDERS

MLC 5428 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR B SACHAR

Applicant

AND:

MS KALITA

First Respondent

MR SACHAR

Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	26 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The final hearing in the children’s application made by Mr B Sachar is adjourned to a date to be fixed.

2.By no later than 4 pm on 21 December 2021 Mr B Sachar is to take the following steps:

(a)To file and serve an amended initiating application setting out the orders he seeks in respect of the children;

(b)To file a single consolidated affidavit from himself and each witness he intends to rely upon in pursuit of child-related orders;

(c)To lodge with the Legal Aid Commission of the Australian Capital Territory the sum of $1,100 as security for costs to be paid into an account nominated by that Commission, with such sum not to be drawn against without further order of the Court or without the agreement of the mother, Mr B Sachar and the Legal Aid Commission of the Australian Capital Territory.

3.In the event that Mr Sachar complies with the above orders then a further date will be allocated for directions to prepare the matter for hearing.

4.In the event that Mr Sachar is non-compliant with any of the above directions then the mother is at liberty, at short notice, to relist the matter for an undefended hearing.

IT IS NOTED THAT

5.The nominated account from the Legal Aid Commission of the ACT is:

BSB: …

Account Number: …98

Account Name: Legal Aid ACT Commission Trust Account

IT IS FURTHER ORDERED THAT

6.I reserve the mother's costs of today.

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 Sachar & Kalita has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

GILL J

1. In this matter the proceedings have been listed for final hearing of the children’s proceedings.  Those proceedings concern an application made by the uncle of the children, Mr B Sachar.  His application was initially made before the then Federal Circuit Court in October 2020 when the proceedings in that Court were on the cusp of hearing in relation to both property and children’s matters.  The late application before that court by Mr B Sachar resulted in the splitting of the proceedings such that the property and children’s proceedings insofar as they relied upon the application by Mr B Sachar were transferred from the Federal Circuit Court to then Family Court of Australia.  The Federal Circuit Court retained the trial dates for the balance of the children’s proceedings being conducted between the parents and determined arrangements that would result in the mother having sole parental responsibility and the children living solely with the mother by virtue of the resolution of those contested proceedings. 

2. Since that time, on multiple occasions, the property and children’s matters have been brought before this Court.  Various directions have been given in relation to the property proceedings and in relation to Mr B Sachar being required to file a Notice of Address for Service.  He complied with no direction given by the Court and attended none of the proceedings across that period of one year, including proceedings which were constituted by the final property hearing where neither he, nor the husband, participated.  Following the nonparticipation in and failure to comply with any direction of the Court, on delivery of judgement in respect of the property proceedings the balance of the child-related proceedings, being that application made by Mr B Sachar, was adjourned to today’s date for hearing. 

3. No step was taken by Mr B Sachar in relation to those proceedings until this morning when he forwarded to the Court an email seeking an adjournment of the proceedings.  He has appeared today by telephone pursing an adjournment of the proceedings, which was opposed by the mother.  In pursuing the adjournment of the proceedings Mr B Sachar has advised the Court that he has paid a sum of money, it seems in excess of $7,000, to a local law firm EE Solicitors to secure their advice and representation.  They have not appeared today, the particular solicitor apparently not having availability to appear today, nor have they filed a notice advising the Court that they appear.  Mr B Sachar advises that he paid a sum of money to them two weeks ago and yet it is only today that he has sought an adjournment of the proceedings.  It does little to assuage concerns about the bona fides of Mr B Sachar in pursuing this matter.  However, I am prepared to grant an adjournment on terms for Mr B Sachar to pursue child-related relief.  Should he fail to comply with the terms on which that adjournment is granted, then the matter may be promptly listed for an undefended hearing by the mother. 

4. It is appropriate to grant the adjournment under circumstances where the final hearing in relation to the children’s matter was set at reasonably short notice on the basis that there had been no participation by Mr B Sachar for the previous year, however, given that short notice period and his now appearance before the Court it warrants a further adjournment of the proceedings.

5. It is sought, on behalf of the mother, an order for security for costs be made on the basis of the non-compliance and nonparticipation of Mr B Sachar over the previous year.  While the mother seeks the lodgement of a sum of $2,200, which I take it represents the extension in the grant of legal aid that will be required to finalise the matter, at this stage only a lesser sum is warranted to be reflective of the intermediate steps that will be required to be undertaken by the mother should Mr B Sachar comply with the directions that are now being given.

6. Accordingly, I propose to halve the amount that has been proposed by the mother and require Mr B Sachar to pay the sum of $1,100 into the trust account nominated by the Legal Aid Commission of the Australian Capital Territory to be there held pending further order of the Court or if released by the common agreement of Mr B Sachar and the mother.  It is necessary to take that step because of the non-compliance of Mr B Sachar with any of the directions of the Court and because of his complete failure to prosecute his proceedings in the last 12 months.  I will also require that Mr B Sachar files an updated initiating application setting out the orders that he seeks in respect of the children and the affidavit evidence that he will intend to rely upon.  Should he fail to do so, in accordance with the directions that I give, then the matter will be entitled to be relisted at the behest of the mother for an undefended hearing.  Should he comply then the matter will be listed for further directions to determine how it is that the proceedings may be finalised. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       26 November 2021