Sandala and Nerandon

[2020] FamCA 712

FAMILY COURT OF AUSTRALIA

SANDALA & NERANDON [2020] FamCA 712

FAMILY LAW – PRACTICE AND PROCEDURE – where trial was listed for five days – where the Father is incarcerated – where capacity to have a video link with correctional facility has been intermittent – where special approval would be required to have a video link available for the duration of the trial – where the Father has lost his legal representation – where the Father is unable to access his trial affidavit or legal materials – where the Father intends to call witnesses – where the parties both seek respective interlocutory orders regarding time with the Father and potential travel of the Mother and child to Country B – trial vacated – leave to file interlocutory applications – dismissal of Father’s requirement to file in accordance with Family Court forms

Family Law Act 1975 (Cth)

APPLICANT: Ms Sandala

RESPONDENT: Mr Nerandon

INDEPENDENT CHILDREN’S LAWYER: Ms Stanford

FILE NUMBER: SYC 4956 of 2019

DATE DELIVERED: 26 August 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 26 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: O'Sullivan Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanford Solicitors & Mediators

Orders

1. The trial commencing 31 August 2020 is vacated.

2. The parties are at liberty to file an interim application and supporting material in relation to the issues of the Mother's proposed travel to Country B and the Father's proposed time to be spent with his daughter.

3. On the filing of any such application the matter will be listed at short notice for further directions to ready the matter to determine those interlocutory issues.

4. It will be necessary for the Mother to demonstrate that the Father has had the material served upon him in accordance with the Rules.

5. In filing an application or in filing supporting material it is not necessary for Mr Nerandon to comply with the requirements of filing in accordance with the forms provided by the Family Court of Australia. 

6. If necessary, on the interlocutory hearing dependent on whether or not adequate material is able to be provided by Mr Nerandon, an application to give oral evidence may be entertained. 

7. The matter is otherwise adjourned until a date to be fixed.

8. Should Mr Nerandon be released from custody or change correctional facilities he is directed to advise the Court and the solicitors for the Mother and the Independent Children’s Lawyer promptly of those events and of his appropriate contact details.

IT IS NOTED THAT

1. Ms Stanford has indicated that she will prepare a draft authority document and will provided it to Mr Nerandon so that he might direct his former solicitors to release his draft affidavit to himself.

IT IS ORDERED THAT

1. Mr Nerandon is directed to take steps to obtain the draft affidavit from his previous solicitors.

2. The matter may be relisted before me at short notice.

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 Sandala & Nerandon 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 CANBERRA

FILE NUMBER: SYC 4956 of 2019

Ms Sandala

Applicant

And

Mr Nerandon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter that was listed to commence trial for a period of three days from 31 August 2020.  Mr Nerandon is currently in custody.  The capacity to have a video link with Mr Nerandon has proven to be intermittent.  Contact with the correctional facility indicates special approval would need to be obtained in order to have the video link available for three consecutive days.  That special approval has not at this stage been sought or given and it is uncertain whether or not the video facility can be made available for him given that there are six video facilities in the correctional facility and 1,200 inmates.  That means it remains uncertain by means of availability of the video facility and reliability of the video facility whether or not Mr Nerandon would be able to participate in a trial. 

2. Further, since entering into custody Mr Nerandon has lost his legal representation in respect of the family law proceedings.  He says that those legal representatives currently hold his trial affidavit.  Steps have been taken to contact them, made by the solicitor for the Mother in order to seek to obtain the trial affidavit.  Quite properly those solicitors have invoked Rule 9 of the Solicitors Conduct Rules, being in accordance with their duty as Mr Nerandon's solicitors, they are not allowed to disclose material without instructions to do so. 

3. Mr Nerandon advises that he wants the affidavit produced but at present that has been unable to take place.  Ingeniously the solicitor for the Mother sought the issue of a subpoena to those solicitors to seek to obtain the affidavit.  While at least superficially attractive, as Mr Nerandon points out he requires access to the draft subpoena in order for him to determine whether or not it is appropriate for filing or whether or not it needs to be supplemented.  Mr Nerandon has also pointed to the potential need for him to call witnesses in the proceedings.

4. Given his current state of incarceration, the unreliability of the video link, his inability to obtain his legal materials or it seems adequate legal advice,  I am not satisfied that if the proceedings went ahead on Monday as listed that Mr Nerandon would be accorded procedural fairness in the presentation of his case in the child related proceedings.

5. It is unacceptable that proceedings are conducted in a procedurally unfair matter.  It is further the case that the failure to accord procedural fairness is deleterious to making an appropriate decision for what is in the best interests of the child. 

6. Notwithstanding the best efforts of all concerned, a fair hearing cannot take place next week and hence the trial date will be vacated.

7. However, it has been indicated both by Mr Nerandon and on behalf of the Mother that each seeks under those circumstances that interlocutory orders be made either for the child of the relationship to spend time with Mr Nerandon, or for the Mother and child of the relationship to travel to Country B, where I understand the Mother is a citizen.

8. The parties will be at liberty to file and serve an application and supporting material in respect of such to be listed as soon as is appropriate before me.  Given that Mr Nerandon is currently held in custody it will not be necessary for him to file material in strict accordance with the forms as provided by the Family Court of Australia, provided he is able to identify clearly the orders that he seeks and is able to provide evidence to the Court in respect of why those orders are in the child's best interests.  It will also be incumbent upon the Mother to demonstrate that Mr Nerandon has been given access to the material that she seeks to rely upon.

9. Accordingly, should any application be filed the matter will be listed at short notice for directions to ready the matter for an interlocutory hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 August 2020.

Associate: 

Date:  27 August 2020