Sturton and Cellar (No 2)

[2020] FamCA 833

FAMILY COURT OF AUSTRALIA

STURTON & CELLAR (NO. 2) [2020] FamCA 833

FAMILY LAW – EVIDENCE – Where the father seeks leave to rely upon, at trial, an earlier affidavit of evidence in chief – Where neither the Independent Children’s Lawyer nor the mother objects to leave being granted – Where leave is granted – Where the father objects to the mother relying upon her affidavit of evidence in chief as it was filed one working day later than the date specified in the trial directions – Where the trial is one month away – Where the Court does not accept that the father will suffer prejudice if the mother is permitted to rely upon her affidavit of evidence in chief – Where the father’s objection is overruled.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sturton

RESPONDENT: Mr Cellar

INDEPENDENT CHILDREN’S LAWYER: Julie Harrington

FILE NUMBER: BRC 6743 of 2018

DATE DELIVERED: 9 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 9 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Craig

Piper Craig Lawyers

THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harrington

Julie Harrington Solicitor

Orders

1. That leave be granted to the father to read and rely upon his affidavit filed 26 November 2018 in addition to his affidavit filed 3 July 2020 as his evidence in chief at the hearing of the trial in this matter.

2. That the father’s objection to the mother relying on her affidavit of evidence in chief filed 6 July 2020 is overruled.

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 Sturton & Cellar 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 BRISBANE

FILE NUMBER: BRC 6743 of 2018

Ms Sturton

Applicant

And

Mr Cellar

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. On 6 May 2020, I made trial management directions amongst other orders in this case, having heard urgent interim proceedings earlier on.  Those trial directions included an order that the matter be listed for trial before me commencing on Monday, 6 July 2020 and that the parties file and serve their affidavit material by Friday, 19 June 2020.  Having heard from the father prior to making the trial directions that he wanted to rely upon witnesses whose affidavits he had already filed and that he had no intention of changing any of the content of their affidavits or having them do fresh ones, unless he had to, I made an order that if he wanted to rely upon affidavits of any person who had already provided a sworn affidavit that he had filed, he was entitled to do so without re-filing such affidavit or any fresh affidavit from them. 

2. Shortly after I delivered my reasons for judgment and made these directions on 6 May 2020, I was contacted by the parties and asked if I could change the trial date to suit them by listing the matter a little bit later than 6 July.  From memory there was some sort of clash at least in the first instance with the ICL having another trial.  I did so and the parties were notified that the trial was adjourned to 10 August 2020.  Subsequently, I was notified by my associate that Mr Cellar, the father, had asked for an extension of the time within which he had to file his affidavit of evidence in chief.  I am told and accept that on 16 June 2020 pursuant to my direction the case coordinator in this case informed the parties that I had granted that extension in chambers and I amended the trial directions so that the parties were to file and serve their affidavits of evidence in chief by 4.00 pm on Friday, 3 July 2020. 

3. The matter was also listed for a compliance check before me this morning.  I have been provided by my Associate the affidavit of evidence in chief of the father that was filed at 11.42 am on Friday, 3 July 2020, and I have an affidavit of the mother that was filed on Monday, 6 July 2020 by the stamp that is on it, and an affidavit of Ms Craig, her solicitor, filed on 7 July 2020.

4. Today, at the compliance check, the father has effectively sought leave to rely on an earlier affidavit of evidence in chief that he filed earlier in the proceedings, presumably in support of some interim orders, namely an affidavit that he filed on 26 November 2018.  I am informed by the Independent Children’s Lawyer that that affidavit is about 160 pages long including its annexures, but I am told that only 9 pages of depositions form the substantive part of that affidavit. 

5. The father in support of his application for leave to be able to rely on that previous affidavit tells the Court that he, mistakenly, misunderstood the effect of paragraph 8 of my Order of 6 May 2020, in which I gave him leave to rely upon affidavits of other witnesses earlier filed, to include reference to him.  Perhaps unrepresented as he is, that might be understandable, but I have recollection that the issue was discussed with him at the trial directions and that I made it clear we were talking about the affidavits of witnesses previously filed other than himself.  In any event, he tells me that he did not include a lot of material in his trial affidavit filed last week because it was already in his earlier affidavit of 26 November 2018 which he mistakenly believed he had leave to rely upon.  He has asked for that leave. 

6. Ms Harrington and Ms Craig were asked their positions.  Neither of them objected in the circumstances where he made it clear that that material was not included in his recent trial affidavit and where there is a month to go before the hearing of this case.  I granted Mr Cellar the leave to rely upon that earlier affidavit. 

7. Then, having been informed that Mr Cellar had an objection to some material of the mother, I took that matter up with him.  He objects to the mother being allowed to rely upon her affidavit of evidence in chief.  When asked the basis of his objection, he said that his objection is because she did not file and serve it in accordance with my direction which was that they be filed and served by 4.00 pm on Friday, 3 July 2020.  When asked for an explanation about that, Ms Craig informed the Court that indeed she forwarded electronically, as is now the process, the mother’s affidavit on Friday, 3 July, albeit after 4.00 pm, which was the time she was meant to do it  She tells me because of the large number of annexures, and I am yet to understand, without having a look at the affidavit, why it would include hundreds of pages of annexures and as I said, the parties would have heard what I have said about that during the exchange, but I am not particularly minded to trawl through hundreds of pages of annexures. I look forward to hearing from counsel and indeed Mr Cellar himself if he is relying upon hundreds of pages of annexures at the trial, which documents are so relevant and significant that I need to give them more attention.  But I certainly will not be trawling through them in the lead up to the trial.

8. Ms Craig informed the Court that because of the larger number of annexures attached to her client’s affidavit, it was not accepted by the Court on Friday afternoon.  I suspect there may have also been the fact that it was not filed before 4.00 pm but I cannot be sure about that.  In any event, it was formally, technically, filed on Monday of this week. When I asked Mr Cellar if he could point to prejudice caused by the filing and service of the affidavit one working day after the date it was meant to be filed and served upon him, when there is a month still to go before the trial, he simply, in my respectful view, made a submission to the effect of “well, I filed mine on time, I’m prejudiced because I had to file mine on time and I would have liked to have put a lot more material in and she filed hers outside the time.”  So, it seems that the nub of his submission is, she simply did not get it in on time and she ought not be allowed to rely upon it. 

9. With all due respect to Mr Cellar and his submissions, I consider that having now around about a month to consider the mother’s affidavit of evidence and prepare for trial is sufficient in the circumstances and I do not consider that to be any real prejudice. 

10. He did press the notion that if he had had more time he would have put more material in his own affidavit.  That is a different issue.  When the initial request came in for an extension of time, he asked for two weeks and he was given the two weeks that he required.  I am not persuaded by an argument that had he had longer himself he would have been able to put in more material. I asked him what additional evidence, in addition to the two affidavits that he is already now able to rely upon at the trial, he would have put in if he had a bit more time, and he was not able to tell me. 

11. Another point of relevance is that Ms Craig informed me that Mr Cellar’s affidavit, though meant to be filed and served, that is served upon her and her client, by 4.00 pm on the Friday, was not served on them until 7 July.  Indeed, Mr Cellar did not comply with the trial directions either. 

12. The reality is, we have a month to trial, everyone did their best in the circumstances to get their material in within the time that I gave them, and I consider everyone will now have appropriate time and opportunity to prepare their cases as best they can for trial.  I overrule Mr Cellar’s objections to the mother being allowed to rely on her affidavit and give her the leave to rely upon it, although it was not filed and served strictly in accordance with my directions.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 July 2020.

Associate: 

Date:  30 September 2020