Scafides & Petrakou (No 3)
[2023] FedCFamC1F 76
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scafides & Petrakou (No 3) [2023] FedCFamC1F 76
File number: SYC 1814 of 2020 Judgment of: CAMPTON J Date of judgment: 20 February 2023 Catchwords: FAMILY LAW – PARENTING – PRACTICE AND PROCEDURE – Oral application to adjourn the trial made on the first morning of the trial Legislation: Evidence Act 1905 (Cth) s 140
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Family Law Act 1975 (Cth) Pt VII, Div 12, s 69ZR
Cases cited: Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Scafides & Petrakou (No 2) [2023] FedCFamC1F 65
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 20 February 2023 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Sexton Family Law Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: O’Sullivan Legal Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
SYC 1814 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCAFIDES
Applicant
AND: MS PETRAKOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
20 February 2023
THE COURT ORDERS THAT:
1.The mother have leave to make an oral application to vacate the trial dates over five days listed to commence today, 20 February 2023.
2.The mother’s oral application to vacate the trial dates listed over five days to commence today, 20 February 2023, be dismissed.
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 Scafides & Petrakou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
The mother by way of oral application seeks to vacate the trial listed to commence today, allocated for five days. These proceedings were commenced by way of the husband filing an Initiating Application in what was then the Federal Circuit Court of Australia on 19 March 2020. The litigation has had a somewhat tortured history on its pathway to the final hearing of the parties’ parenting and property dispute.
The parenting aspect of the proceedings relates to the parties’ only child, X (“X”). Her parenting is currently regulated by way of orders made 14 July 2021 (“the interim orders”), which provide broadly for her to live with the mother and to spend time with the father each Wednesday afternoon and on alternate weekends, overnight on Friday night. The interim orders were made after the release of a report by the single parenting expert witness, Dr G, on 26 April 2021 (“the family report”). They were made in part by consent and in part on a defended basis.
Trial dates were listed and extensive trial directions made on 9 May 2022. They included that:
6.On or before 7 November 2022 the [father] is to file and serve any Amending Initiating Application setting out with particularity the final orders sought.
7.On or before 14 November 2022 the [mother] is to file and serve any Amending Response to an Initiating Application setting out with particularity the final orders sought.
In the shadow of the trial, on 14 February 2023, the mother filed an Application in a Proceeding seeking to vary the time spent by X with the father such that it be reduced to a four-hour period each Saturday under professional supervision. The Application in a Proceeding was founded on the mother’s contention that the father posed an unacceptable risk of harm to X arising from X “having experienced or being at risk of experiencing sexual abuse” occasioned by the father. As an adjunct to that application to vary the interim orders, the mother sought to vacate the trial listed to commence today.
The mother’s Application in a Proceeding was listed for hearing before me on 15 February 2023. On 16 February 2023 the mother’s Application in a Proceeding was dismissed. This decision assumes familiarity with the reasons for judgment delivered that day, being Scafides & Petrakou (No 2) [2023] FedCFamC1F 65.
At the outset of the trial this morning:
(a)The father sought and obtained leave to rely on his Third Amended Initiating Application filed on 17 February 2023, being the Friday before the trial. His amended parenting relief sought that X live with him. Prior to then, it was the father’s case that X should live in an equal-time arrangement between he and the mother; and
(b)The mother sought and obtained leave to amend her relief from that as sought by way of her Response to an Initiating Application on 22 November 2022, that X live with her and continue to spend overnight time with the father, to that as identified in her Case Outline document, filed on 17 February 2023, that X live with her and spend no time with the father.
As was properly conceded by each parent in the course of submissions during the hearing of this oral application, the nature of the case prosecuted by the parents has radically changed over the last few days from that prosecuted by each of them at the time of filing their final relief pursuant to the trial directions recorded at [3] above. Each parent now contends the other presents an unacceptable risk to X should she live with that other parent. Subsequent to the parents each radically changing their relief as to parenting on the first morning of the trial, the mother has renewed her application to vacate the current trial dates.
The mother identified the significant deviation in the father’s position as one factor grounding her application, she, at least implicitly, suggesting that her own deviation was not as extreme. She contends that she would be denied procedural fairness if she were to be cross-examined before Dr G has an opportunity to express an opinion as to the allegations of risk made by each parent against the other. On the current trial plan, Dr G is likely to have any capacity to do so by way of oral evidence on Thursday, 23 February 2023. The mother further identifies that documentation that has been sought under a subpoena issued at short notice to the Department of Community and Justice, not returnable before the Court until Wednesday, 22 February 2023. It is the mother’s position that she needs to consider the views of Dr G before she can finalise her position as to parenting.
At least implicitly, there seems to be a shift in the mother’s position since the reasons for judgment were delivered on 16 February 2023. As I now understand it, she no longer contends a finding that X has been sexually abused by the father. Her contention now is more focused to a risk of X experiencing sexual abuse occasioned by the father in the future.
Both parents are aware as to the serious allegations they make against the other. Both are aware, consistent with relevant authority, that findings of fact underpinning allegations of unacceptable risk need to be the subject of satisfaction as identified in s 140(2) of the Evidence Act 1905 (Cth). That said, as identified by the Full Court in Isles & Nelissen (2022) FLC 94-092, a finding as to unacceptable risk need not achieve that level of satisfaction.
The father and the Independent Children’s Lawyer (“ICL”) both oppose vacating the trial. The ICL expresses a caveat, being that she holds concerns as to whether the matter will finish within the five day allocation in light of the current trial plan, which proposes to occupy four-days and three hours of court time without accounting for submissions.
The father identifies, correctly in my view, that the mother is not denied procedural fairness should the trial proceed given all of the affidavit evidence to be relied on by the parents has now been filed. Save and except the material that is to be produced on subpoena by the Department of Community Justice and the oral evidence of Dr G, the mother has not identified what additional evidence she would seek to adduce to support the findings of fact that she will seek to underscore the parenting determination. She has vaguely referred to the evidence from her own psychologist. The terms of that evidence and its contents are wholly unknown. Hence there is a degree of speculation in relation to the matters underpinning the mother’s position and application.
It is uncontroversial that in the event this Court is required to allocate a further five days of hearing for this matter, it will not have the capacity to do so until either the end of the first quarter or during the second quarter of 2024. The capacity of the Court to find an additional one or two days extra to hear any additional evidence in this case might be somewhat improved from that dire delay.
In the course of the reasons for judgment identified earlier in these reasons delivered on 16 February 2023, subject to ensuring that natural justice is afforded to each of the parents, s 69ZR of the Family Law Act 1975 (Cth) (“the Act”), which relates to child-related proceedings conducted pursuant to Pt VII, Div 12 of the Act, permits the Court to make determinations, findings and orders at any stage of the proceedings. That includes to make a finding of fact in relation to proceedings, to determine a matter arising out of proceedings or to make an order in relation to an issue arising out of the proceedings.
I am not satisfied that the mother will be denied any procedural fairness should the trial proceed at this time in circumstances where she has both the benefit of very experienced legal practitioners appearing for her and the capacity to make any such application over the course of a trial process, as the evidence as adduced ebbs and flows, as she is advised. It is certainly the usual experience of this Court that the course of evidence can radically change over a trial process by way of concessions obtained in the process of cross-examination and otherwise. Importantly, the context in which evidence is interpreted and is both seen and is weighed can radically differ or shift.
Importantly, so that there is no misapprehension, it is not a matter for Dr G to determine whether the mother’s views on a particular subject matter or the father’s views on a particular subject matter are reasonable or not. That is the task of the Court.
I am further mindful as to the mandatory provisions identified in the Federal Circuit and Family Court of Australia Act 2021 (Cth), in that the Court has a responsibility to ensure that management of litigation and of its workload occurs according to law as efficiently and as inexpensively as possible. There is no doubt that the adjournment of this trial will occasion substantial cost to the parents, including the necessity to recast a broad range of expert evidence as to the valuation of the property of the parents. The Court is required to efficiently use its judicial and administrative resources and to exercise its business to ensure the disposal of all proceedings in a timely manner that is proportionate to their complexity.
Again, as canvassed in the reasons delivered on 16 February 2023, there is nothing particularly complex or unusual about this matter. In the event the Court does not allocate its resources over the next five days to hearing evidence in this matter, the deleterious effect on these parents to the proceedings and all other litigants and stakeholders to the Court becomes a very important consideration to take into account.
In all the circumstances, having regard to the capacity of the mother to make such applications as she considers relevant over the course of the trial, including seeking to adduce further evidence if she considers it appropriate or to make such further application as she is advised, the mother’s oral application, for the reasons identified earlier, to vacate or adjourn the current trial, is refused.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 21 February 2023
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