Sachar & Kalita (No 4)
[2022] FedCFamC1F 352
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sachar & Kalita (No 4) [2022] FedCFamC1F 352
File number: MLC 5428 of 2018 Judgment of: GILL J Date of judgment: 18 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –
Abuse of Process – Unmeritorious child related application – History of egregious non-compliance with filing directions – Non-attendance at Court – Application in a Case dismissed.FAMILY LAW – COSTS – Respondent reliant upon legal aid – Costs awarded to the respondent.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 10.09 Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 18 May 2022 Place: Canberra Solicitor for the Applicant: Did not participate 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:
18 MAY 2022
THE COURT ORDERS THAT:
1.The respondent, Ms Kalita, be excused from compliance with Order 3 of the orders made 18 February 2022.
2.The Amended Application filed 21 December 2021 be dismissed.
COSTS
3.I order that Mr B Sachar pay the sum of $6,770.70 to the Legal Aid Commission of the Australian Capital Territory (ACT) by way of costs in this matter.
4.I authorise that in part satisfaction of that amount the Legal Aid Commission of the ACT may draw from their trust account the sum of $1,100 currently held as security for costs as previously ordered by the Court.
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).
EX TEMPORE REASONS FOR JUDGMENT
GILL J:
In October 2020, Mr B Sachar filed an application in the then Federal Circuit Court of Australia pursuing child related orders. The circumstances of such are set out in my previous judgment of 26 November 2021. That application was filed on the cusp of a hearing that was then about to be conducted in the Federal Circuit Court between Ms Kalita and Mr Sachar, the brother of Mr B Sachar, and the husband in those proceedings. The late application by Mr B Sachar resulted in the partial transfer of proceedings to the then Family Court of Australia, while the Federal Circuit Court continued to deal with child related matters between Ms Kalita and Mr Sachar. What then remained for the Family Court were the property proceedings between Ms Kalita and Mr Sachar, which also involved Mr B Sachar as a party to those proceedings. What was also transferred was Mr B Sachar’s application in relation to the children of Ms Kalita and Mr Sachar.
Since the transfer of that matter, Mr B Sachar has complied with, or at least pending the delivery of judgment in those proceedings, in so far as they related to property, has complied with no direction given by the Court. He failed to attend Court, and the property proceedings were ultimately resolved on an undefended basis as neither he, nor his brother Mr Sachar, attended the final hearing. Once the property proceedings were dealt with, the child proceedings were then adjourned initially to 26 November 2021 to deal with Mr B Sachar’s application to spend time with the children, noting that the proceedings involving the children in the Federal Circuit Court had resulted in Mr Sachar, the father, spending no time with the children.
The first step taken by Mr B Sachar in relation to those proceedings occurred on the morning of those adjourned proceedings, being 26 November 2021, when he emailed the Court. He sought and obtained an adjournment, principally given on the basis that he had received only short notice of the proceedings coming back before the Court. Directions were then given in relation to further steps to be taken regarding the child related proceedings, and a security for costs order was made. On 26 November 2021, the directions involved the filing of an amended initiating application by Mr B Sachar, along with supporting affidavit material for the trial of the matter, and that he lodge $1,100 with the Legal Aid Commission of the ACT as security for costs and that he do so by 21 December 2021. Although he lodged the security for costs in accordance with those orders, he did not otherwise comply, failing to file the amended initiating application or affidavit until after the time allowed for such had passed.
On 27 January 2022, procedural directions were given in order to determine whether or not Mr B Sachar would be given leave to rely upon the documents that he had filed out of time, or whether his amended initiating application would be dismissed.
On 2 February 2022, leave was so granted to him to rely upon those documents despite the fact that they were filed out of time, noting that they were filed the day after he was permitted to file them. On 2 February 2022, a further judgment was given by me setting out the further circumstances of the case. In essence, Mr B Sachar was excused from his non-compliance, as it was minor, and leave was thereby granted to him. However, I noted the following matters as contained in paragraphs 9 through 11 of that judgment, which I quote as follows:
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.
It should be observed that that leave was granted to Mr B Sachar in the further context that I had previously warned him that non-compliance may result in his application being dismissed. Against the background of that judgment, the matter was ultimately adjourned to 18 February 2022 for further directions to be given for the child related proceedings.
On that day, I reserved the costs in relation to the application by Ms Kalita to dismiss Mr Sachar's application and his leave application in respect of filing out of time. He was directed to file a single consolidated affidavit from himself and each witness that he intended to rely upon in the proceedings by 4:00 pm on 1 April 2022, with Ms Kalita to likewise file by 29 April 2022.
The proceedings were then listed on 23 February 2022 for the case management to take place today.
On 8 April 2022, a Notice of Ceasing to Act was supplied by Mr B Sachar’s then solicitors, and on 28 April 2022 Ms Kalita filed an application in proceedings to dismiss Mr B Sachar’s amended initiating application.
It should be noted that during that course, the solicitors for Ms Kalita wrote to the then solicitors for Mr B Sachar on 8 April 2022, and appropriately raised with them his non-compliance, advising that they would seek dismissal of his application and costs. What then followed was the prompt filing of a Notice of Ceasing to Act by those solicitors, which then prompted the solicitors for Ms Kalita to write to the email address provided by Mr Sachar’s solicitors on 21 April 2022 advising him of same. No response has been received by them from Mr Sachar, and no documents have been filed by him in respect of the directions that were previously given. Accordingly, as no documents were filed by him, Ms Kalita has also not filed the further documents that she was directed to file and seeks that she be excused from that non-compliance. It may readily be seen why she should be excused from that non-compliance under those circumstances.
What may be perceived is that the previous egregious non-compliance engaged in by Mr B Sachar has now been repeated, after he was granted an indulgence for his previous non-compliance at the end of 2021. The legal representatives for Ms Kalita helpfully made submissions setting out the effects of non-compliance. Most significant among those can be seen at r 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which is in the following terms:
1.33 Failure to comply with a legislative provision or order
(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).
Of course, r 1.33 must be seen in the context of the overarching purpose of the Rules, as set out at r 1.04 which is set out in the following terms:
1.04 Overarching purpose
(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.
It is difficult here to conclude otherwise than that the proceedings are currently being used by Mr B Sachar as an instrument of injustice. He has chosen to participate or comply only when it suits him, sporadically and inconsistently. He is currently dragging the mother through the Court in a manner that may be seen to be utterly unmeritorious, given his failure to comply with orders that required him to file the material on which he based his application, which I note was in circumstances where he indicated to the Court that the previous material he had filed was infected with error. It may be seen that his case is utterly lacking in any material that supports the application that he makes, under circumstances where he has now had no contact with the children for a number of years, and his brother, their father, is to have no contact at all. There is no factual basis upon which it can currently be said that there is any merit whatsoever to the application that he has made, that is, his application is now both non-compliant and unmeritorious without any reasonable prospects for success. I pause to note the content of r 10.09, which deals with summary dismissal, where it notes that:
(1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction; or
(b)the other party has no legal capacity to apply for the orders sought; or
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
(2)An application under this rule must be made by filing an application in accordance with the approved form.
It may be observed here that there is no reasonable likelihood of success. It may also be observed that the manner of conduct of these proceedings by Mr B Sachar, is such as to indicate that they are vexatious or an abuse of process.
COSTS
In relation to the issue of costs, I note the observations that I have made above about the manner of conduct of proceedings by Mr B Sachar. I note, further, the financial circumstances of the parties, in so far as they were disclosed during the property component of these proceedings. Those indicated that Ms Kalita has the full-time care of the children of the relationship between herself and Mr Sachar and that she was in the process of professional retraining. It is conceded from the bar table that she has now acquired some work, albeit only on a part-time basis. It is noteworthy, of course, that she retains the care of the children and understandable, as was identified in the property proceedings, why it is that she might work on a part-time basis. It is also the case that, although she has received some of the fruits of the property proceedings, wherein limited funds were to be paid to her, it is also the case that she is currently forced to conduct enforcement proceedings against Mr Sachar for the bulk of what it was that she was to receive by virtue of what were very limited property orders. Despite the fact that she has received some cash monies, it may still be taken that she is in difficult financial circumstances.
In the property proceedings, it was identified that Mr B Sachar is the owner of real property in Victoria. It is noteworthy that he had the capacity to pay $7,000 to the private solicitors who have now ceased to act for him, a matter that he previously disclosed to the Court. These indicate some capacity on his part.
It has been noted that Ms Kalita is the subject of a grant of legal aid.
It may be noted that Mr B Sachar has been wholly unsuccessful in the overall proceedings that he takes in respect of spending time with the children.
The only aspect in which he has received some success was in his obtaining of leave despite having filed out of time, as I have referred to above in the judgment. It may be noted that what he sought from, and was granted by the Court, was an indulgence. Although Ms Kalita was unsuccessful in her attempts to resist the granting of that indulgence, the fact that it was required, that there be such an indulgence granted for him to continue with the proceedings, speaks to her obtaining those costs in any event.
Of particular import is the fact that Ms Kalita made an offer to resolve the matter on terms far more favourable than those now being considered by the Court in respect of the resolution of costs. There was no response to that timely offer.
These matters, or any number of them, are sufficient to depart from the starting position that each party to the proceedings bear their own costs.
In terms of the quantum, a Costs Notice has been filed and is marked as MK2 in these proceedings. That Cost Notice identifies various amounts claimed at the traditionally parsimonious amount allocated for legal aid litigation. They represent amounts far below what may have been secured by recourse to the Court Scale of Costs, and even further below what would typically be available in commercially litigated matters. The amounts set out by the Legal Aid Office are reasonable under those circumstances, and in particular, taking into account the conduct of the proceedings by Mr B Sachar, it is appropriate that each of them be paid in that full amount.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 18 May 2022
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