Sachar & Kalita (No 3)

[2022] FedCFamC1F 31

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sachar & Kalita (No 3) [2022] FedCFamC1F 31

File number(s):	MLC 5428 of 2018
Judgment of:	GILL J
Date of judgment:	2 February 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Non-compliance with filing directions – Child related application – History of non-compliance – Minimal practical effect of non-compliance – Importance of subject matter – Access to litigation – Leave granted to file.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33
Division:	Division 1 First Instance
Number of paragraphs:	13
Date of hearing:	31 January 2022
Place:	Canberra
Solicitor for the Applicant:	Dobinson Davey Clifford Simpson
Counsel for the Respondent:	Mr G Stagg
Solicitor for the Respondent:	Legal Aid, ACT

ORDERS

MLC 5428 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR B SACHAR Applicant
AND:	MS KALITA Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	2 FEBRUARY 2022

THE COURT ORDERS THAT:

1.Leave is granted for Mr B Sachar to rely upon documents filed on 21 December 2021.

2.The matter is listed on 14 February 2022 at 10:00 am for directions and any argument as to costs in respect of the hearings on 27 and 31 January 2022 and whether there should be further security for costs lodged by Mr B Sachar.

3.The parties are to be in a position to make submissions to the Court about the manner in which the resolution of the issues will progress, including:

(a)what matters may be determined on a summary basis;

(b)whether deponents should be cross-examined; and

(c)whether there should be any material from a Court Child Expert, and, if so, to what extent.

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 is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. This judgment concerns the failure of the second respondent, Mr B Sachar, to comply with procedural orders made on 26 November 2021.  Those procedural directions occurred in the context of previous egregious non-compliance by Mr B Sachar with the processes and procedural orders of the Court. 

2. Briefly stated, in October 2020 Mr B Sachar, who had been joined to proceedings conducted between his brother, Mr Sachar, and the mother, Ms Kalita, before the then Federal Circuit Court of Australia, made an application before that Court seeking child related orders to provide for the children of Ms Kalita and Mr Sachar to spend time with himself.  That application occurred on the cusp of the final property and child related proceedings that were listed before that Court.  Mr B Sachar further sought the transfer of the property proceedings before that Court to the then Family Court of Australia. 

3. In October 2020 the property proceedings were transferred to this Court, along with the child related aspect of the application made by Mr B Sachar.  The Federal Circuit Court retained the litigation between Ms Kalita and Mr Sachar, ultimately delivering child related orders that granted sole parental responsibility to Ms Kalita, that the children live with her and that Mr Sachar was restrained by injunction from having any contact with the children.

4. Mr B Sachar took almost no part at all in the property proceedings before this Court.  Subsequent to the resolution of those proceedings that involved him as a party, directions were made to bring the child related aspect of the matter on for trial.  It was at this point that he again became involved in the proceedings and was directed on 26 November 2021 to lodge security for costs, along with an initiating application and supporting affidavit by 21 December 2021.

5. Although he lodged the security for costs, Mr B Sachar did not otherwise comply with the order, attempting to file the documents after the close of Court business on 21 December 2021.

6. When the matter was returned to the list for further directions to prepare the matter for trial (noting that on Mr B Sachar’s non-compliance with the orders, Ms Kalita was at liberty to apply to proceed on an undefended basis), Mr B Sachar sought to be excused from his non-compliance.  Ms Kalita opposed such a course and the matter was adjourned to 31 January 2022 to give Mr B Sachar the opportunity to have the lawyer with the regular carriage of his case appear.  He was further given the opportunity to file material setting out the other circumstances of his non-compliance.

7. Ms Kalita filed an outline of case document setting out the history of non-compliance on the part of Mr B Sachar and setting out the various provisions that apply to such a non-compliance.  She appropriately noted that the result of the attempted late filing by Mr B Sachar was in fact that the documents had not been filed.[1]  It may be observed that Mr B Sachar had not, prior to the directions date of the matter, sought relief in relation to his non-compliance.  Ms Kalita further emphasised the deleterious impact of the proceedings to that point.  Further, Ms Kalita pointed to questions as to the prospects of Mr B Sachar in respect of securing orders to spend time with the children given questions about the credibility of his material and the circumstances as previously identified by Judge W Neville in the child related proceedings in the then Federal Circuit Court.

   [1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33.

8. In seeking relief from non-compliance Mr B Sachar emphasised the subject matter of the proceedings, being the best interests of the children, and identified that on the case presented by him (if accepted) there were matters that went to the best interests of the children in terms of preservation of relationship with a person of importance to them and with the paternal family.  Mr B Sachar also pointed to the limited nature of the non-compliance and the circumstances of his attempts to comply with the orders whereby he set out the various interactions he had with his legal representatives, which were demonstrative of a genuine effort to comply with the orders.  It may be observed that although the documents purportedly filed by him were of no effect, they were at that time served upon Ms Kalita.  This left the practical non-compliance on the part of Mr B Sachar as minimal.

9. In the ordinary course of events, non-compliance as engaged in by Mr B Sachar would be of little moment.  Procedural directions are to be complied with, but are not to be instruments of injustice and hence minor non-compliance may often be overlooked.  Typically late filing of the nature engaged in by Mr B Sachar would not result in an objection to reliance upon the documents.

10. However, here the course of action engaged in in terms of resistance to Mr B Sachar being permitted to rely upon the documents occurs against a background of egregious non-compliance with procedural directions previously given by the Court, rendering the litigation engaged in by Ms Kalita significantly more onerous than it might otherwise have been.

11. Notwithstanding that history, Mr B Sachar will be granted leave to rely upon the documents purportedly filed.  Whether or not his application is ultimately meritorious, on the case as presented by him, there is a serious issue to be tried in terms of whether a relationship with himself is in the best interests of the children.  The factual matters that he alleged, if accepted, point towards there being a relationship of significance.  Whether those matters will be sufficient to cause his application to be acceded to will be a matter to be determined in due course.  However, the importance of the subject matter, the serious effects of depriving a person from participation in litigation and the limited nature of the non-compliance are such that, despite the background history of non-compliance, he should be granted relief.

12. Accordingly, orders will be made permitting Mr B Sachar to rely upon those documents filed.

13. There is a remaining issue as to the costs of the parties’ appearances before me on 27 January 2022 and 31 January 2022.  Despite Ms Kalita’s lack of success in opposing leave being granted it should be recognised that those steps were occasioned by Mr B Sachar’s non-compliance occurring against a background of egregious non-compliance with directions.  Further directions will be made to deal with the issue of costs when this matter is listed for further trial directions.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       2 February 2022