Summers & Tomasec
[2022] FedCFamC2F 87
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Summers & Tomasec [2022] FedCFamC2F 87
File number(s): CAC 1479 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 24 January 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Parenting – ongoing non-compliance with Orders for in excess of 12 months – failure to comply with High Court principles in AON v ANU and Expense Reduction –all outstanding Applications dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Rule.10.27 Cases cited: Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303Division: Division 2 Family Law Number of paragraphs: 20 Date of hearing: 24 January 2022 Place: Canberra Solicitor for the Applicant: Parker Coles Curtis Solicitor for the Respondent: Neilan Stramandinoli Family Law Counsel for the Respondent: Ms S Leslie Solicitor for the Independent Children’s Lawyer: Legal Aid ACT ORDERS
CAC 1479 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SUMMERS Applicant AND: MR TOMASEC Respondent LEGAL AID ACT Independent Children’s Lawyer
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
24 JANUARY 2022
THE COURT ORDERS THAT:
1.All extant Applications 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 a pseudonym Summers & Tomasec has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
On 24th January 2022, the Court delivered oral reasons in relation to the Orders made on that day. Because of the severity of the Orders and the remarks made in Court, the parties were advised that the Court would revise and publish its oral reasons, which are what follows.
On 30th November 2020, the Court made Orders for this matter, which contains both parenting and property aspects, to be listed for final hearing (for 3 days) on dates to be advised. Order 3 of the same Orders provided as follows:
Within 14 days of the date of these Orders, being by 14th December 2020, parties are to notify the Court whether or not there is agreement about obtaining a privately funded Family Report. Subject to what the parties advise the Court, an Order may be made in Chambers for a s.62G Report.
There was never compliance with Order 3. As the chronology set out later in these reasons records, there were many attempts by the parties to work out by whom, and when, a Report was to be undertaken. Very late in the day, after multiple inquiries by the Court, there remained the offer and opportunity for the parties to obtain a s.62G Report. The Mother was adamant (and consistent) that a privately funded report was necessary. She felt that because of the alleged family violence perpetrated by the Father during the relationship, and because of its alleged impact upon the children, such a report with psychometric testing was essential.
Multiple experts were proposed by both parents, although the Father more usually sought only a s.62G Report be obtained. Any one of those recommended would have been eminently suitable. Significant cost was, of course, a factor. In my view, any regular report writer or family consultant (regardless of current or past nomenclature) would do, or would have done, a more than satisfactory job in preparing a report, including an assessment of any relevant risk. Regrettably, allegations of family violence and use of drugs (on display here) are, of course, standard features of family law litigation. It has been so for many a long year. This is also to say that, while the matter is properly important to the parties and the children involved, the issues in dispute are relatively straight-forward, unexceptional, and of the kind regularly considered in this Court.
Upon her appointment later in the proceedings, the Independent Children’s Lawyer (“ICL”) sought to resolve the outstanding issue. Alas, she too was unsuccessful. No fault can or should be attributed to the ICL. The bizarre, lamentable and completely preventable impasse between the parties, and or their lawyers, prevailed. It has now come at a great cost to them, and to other litigants. Because of the tragic default of the parties and/or their lawyers, the Court is compelled to take a most extreme course, which is provided for under Part 10.6 of the new Rules of the Court. Rule 10.27 in particular provides for the making of Orders in circumstances of default, which includes to stay or to dismiss proceedings, in part or in full.
Here there has been ongoing default for more than 12 months, namely since the making of the Orders on 30th November 2020. Such ongoing default regrettably requires an appropriately significant response from the Court.
In the seminal decision in Aon Risk Services Pty Ltd v Australian National University (“Aon v ANU”), the High Court set out at length basic principles regarding the proper conduct, and the risks of not complying with such principles, regarding efficient trial management.[1]
[1] Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175. The “companion” High Court case that articulates further principles regarding modern-day “robust trial management” is Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 (“Expense Reduction”).
Because of the staggering non-compliance with Court Orders and the equally staggering lack of proper preparation for a long-fixed trial in the current matter, it is essential that some of those basic principles be repeated. Indeed, so egregious were the faults of so many in the current proceeding (without being able to identify precisely where the ultimate fault actually rested, although there are many hints of it), it almost warrants either or both (a) homework for either the parties or practitioners to be directed to write out by hand to ensure they are read, certain passages from Aon v ANU, and/or (b) the matter be referred at least to the Family Law Committee of the Law Society for consideration. Counsel lately briefed for the Father, and who observed that she came to the matter with something akin to “fresh eyes”, said that both sides had been at significant fault.
Further, so blatant and inexplicable were the breaches of Orders here, and the complete waste of Court resources, that it has been completely impossible to re-allocate the three days listed for the hearing to be allocated to other litigants. Such disregard of Court Orders compels the Court, still with genuine and deep reluctance, to dismiss all outstanding Applications. If and when the parties are actually in a position to proceed, they can file a fresh Application. If and when that happens, I would still be reluctant to list the matter for final hearing unless and until I had seen actual, as opposed to promised, compliance with all Orders, including for a family report.
Principles: Aon v ANU
First, French CJ said at [5] in Aon v ANU:
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system…
His Honour discussed at length, at [7] – [30], some history in relation to case management, including a long period where amendment of pleadings, toleration of delay, and compensation of aggrieved parties by way of costs Orders took place in a “more leisured age”. But, as his Honour recorded, change was coming, and not before time. Among many important remarks included the following regarding costs being considered to be something of a universal salve, at [25] (internal references omitted):
The same indulgence could not be shown towards the negligent conduct of litigation as might have been possible in a "more leisured age". That approach was followed by Sheppard J in a revenue case heard in the Federal Court. And in the New South Wales Court of Appeal in GSA Industries, Samuels JA said that:
“the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe."
At [112] – [114], the plurality said (internal citations omitted; emphasis added):
[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[114] Rule 21 of the Court Procedure Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases…
Finally, at [133], in his separate judgment, Heydon J quoted from a Supreme Court of New South Wales case (which need not otherwise be noted) as follows:
… When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty. It is even conceivable that a litigant might deliberately pursue a course which will impose disadvantage on an opponent who has to reconsider his ground and change course in the midst of a contest.
Chronology
The language of delinquency used by the High Court is severe but important. Regrettably, it applies equally to the circumstances set out in the current proceeding by reference to the following chronology:
Summers and Tomasec CAC 1479/2019
Correspondence regarding Family ReportDate Event Source Document Pages 30 November 2020 Orders made that provide:
Within 14 days of the date of these Orders, being by 14 December 2020, parties are to notify the Court whether or not there is agreement about obtaining a privately funded Family Report. Subject to what the parties advise the Court, an Order may be made in Chambers for a s62G ReportOrders 1-3 4 December 2020 Father agreed to privately funded Report and proposes Mr B (avail Dec 2020 or Jan/Feb 2021).
Seeks costs be paid from joint accountLetter from NS 4-5 7 December 2020 ICL seeks Mo agmt to Mr B and payment of report from jnt acct. She proposes to circulate TOR immediately if agreed Email from ICL to NS and PCC 6-7 11 December 2020 NS seeks Mother’s agmt to Mr B noting Mother indicated to HH on 30/11/20 she was making enquiries with experts
Mother says admin error did not receive ltr of 4 Dec until 7 Dec and will respond shortly
Mother proposes Report include psychometric testing and proposes Dr C (avail August 2021) and Dr D (avail July 2021) be appointed.
Not agree to use funds from joint account.Email from … to PCC and their response
Letter x 2 from Parker Coles Curtis
8-13 14 December 2020 Father agrees to private report and equally share costs and will make enquiries.
ICL writes to Chambers that parties agree to private report and to share costs equally but still negotiating expert.
Email from … to PCC
Email from ICL to parties
14-15 23 February 2021 Father not able to fund Report until April 2021 if not utilising funds from joint account.
He proposes Dr E (avail April 2021), Ms F (avail April 2021) or Dr G (avail June 2021)Letter from NS to PCC 16-17 12 March 2021 … chasing up response re: ltr on 23/2/21
Mother not agreeable to Dr E and Ms F, OP making enquiries w Dr G Office
Email from … to PCC and their response 18 31 March 2021 Sought outcome of Mother’s enquiries with other psychologists at Dr G’s office.
Advised Ms H (at end 2020 she was avail in April 2021 need to seek current avail if agreed)Mother responds on same day. Agrees on Ms H and advise she is avail 12,13,14 May 2021.
Mother sought … and TOR prepared by …Letter from NS to PCC
Letter from PCC to NS
19-20 9 April 2021 Father agrees to Dr H and seeks appt be confirmed for May 2021 and requested ICL prepare TOR … email to PCC 21 30 April 2021 … f/up OP for confirmation of appts and ICL for TOR
ICL proposes to confirm appt for 14 May and asks if psychometric/risk assessment required
Mother confirms Dr H no longer available until 30 June and risk assessment increases cost from $12k to $20k
Email from NS to ICL and PCC and their responses 22-24 1 June 2021 Father advises he cannot afford proposes to seek S 62G Report if funds not paid from jnt acct for report … email to PCC 25 2 June 2021 ICL states S 62G Report be sig more limited even without psychometric testing, but if no agmt Ct will order Ct funded Report Email from ICL to parties 26 17 June 2021 Mother sought details about change in OC fin circum and his capacity to fund the Report Email from PCC to NS 27 25 June 2021 Phone Call btwn … and …
Mother wanting to know particulars of Father’s change in financial circumstances and proposed options to fund reportNo document 28 September 2021 Orders made that note:
The parties have previously informed the Court that they will be obtaining a privately funded Family Report.
Usual trial directions made – no S 62G ReportOrders 28-31 29 October 2021 ICl writes to parties now final hearing dates set. Dr H not avail until March 2022. Email x 2 from ICL to parties 32-36 4 November 2021 Mother proposes Dr J of Dr G Office (avail 24 and 25 Jan 2022)
Proposes interim distribution to OC from funds in joint actLetter from PCC to NS 37-38 18 November 2021 ICL seeks response from NS particularly Mother ltr on 4 Nov – likely Dr J dates may now be taken Email from ICL to parties 39-40 23 November 2021 Father agrees to Dr J and funds taken from jnt acct on basis of interim ppty settlement
ICL advises Dr J not avail until March 2022 after trial dates
Email from … to parties
Email from ICL to parties
41-46 25 November 2021 Father proposes S 62G Report given Dr J not avail and unlikely to find expert with availability Email from … to other parties 47 26 November 2021 Mother proposes to obtain indication from Court about availability of S 62G Report before trial dates.
Court advises availability in early January 2022 (around 11 January 2022). If matter adjourned, not relist until Sept/Oct 2022
Emails to and from parties and email from Associate 48-53 2 December 2021 Email from … to PCC seeking confirmation of obtaining S 62G Report
Letter from PCC giving timeline of communication re: Fam Report. Sent to …, … and … (wrong address for …).
Email from NS to PCC
Letter from PCC to …
54-56 8 December 2021 ICL seeks … response to OP ltr dated 2 Dec 2021 and minded to urgently relist matter.
Email from ICL to parties 57-60 9 December 2021 OC proposes S 62G Report
ICL proposes that she will seek urgent relisting for S 62G Report on Monday to give Mo opportunity to make App in a Case
Letter from NS to PCC
Email from ICL to parties
61-63 14 December 2021 Mother advises that they will be making App in a Case
Chambers requests urgent response to email proposing S 62G dates
ICL responds advising of parties positions. OC – S 62G and OP – private expert and filing App in a Case imminently
Email from PCC to parties
Email from Assoc to parties
64-68 16 December 2021 Mother files App in a Case filed and served. App in a Case
Affidavit of MoNo document 17 January 2022 Mother makes proposal to resolve App in a Case Provided to Chambers 69-71 20 January 2022 Mother provides further correspondence with additional private report options Provided to Chambers 72-73 20 January 2022 Father confirms agreement to Mother’s proposal to vacate and appoint Dr H or Dr J, whichever is the first available.
Mother’s solicitors confirm Dr J has been tentatively booked 11/12 May 2022.
Email from … to PCC and ICL 74-75 14 February 2022 First Return Date for Mo App in a Case TBA Consideration and disposition
Considered in the light of the principles of Aon v ANU, in my view, the facts of this matter compel the Court to take the most severe action possible, namely to dismiss all Applications. Costs Orders should also have been made but in many ways they would be otiose because ongoing cost will be the order of the day here because of the default and delinquency. The Court could also have referred to other points of reference such as practice directions and the like. But they relevantly take a lower order of importance in the light of the clear and unquestioned statements of principle by the High Court.
For the reasons given, the Court is compelled to dismiss all current Applications. If and when the parties are actually ready to proceed, they can re-file them with the Court. The prosecution and conduct of this litigation has been shameful – needlessly so. It could have been rectified at any time in the last 12 months. It was not. Like Aon v ANU, it warrants a place in the precedent books, but for all the wrong reasons. It is how not to conduct litigation. Regrettably, it is not alone in family law litigation in this regard, where relaxed and comfortable partial compliance is very regularly tolerated, and very regularly without penalty of any sort.
For too long, pettiness and intransigence were the order of the day between the parties and or their lawyers. That has led to the only Orders appropriate in such circumstances.
Finally, in Expense Reduction, the High Court said, by primary reference to Aon v ANU, at [51] (emphasis added):
… It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants…
At [56] – [57], the Court continued (emphasis added):
[56] The evident intention and the expectation of the CPA [and similar statements in other legislation] is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided…
The way that this matter was conducted, and regrettably (as noted above) not uncommonly in many other family law matters, was (and is) as if the High Court has been utterly silent on the issue of case management and its central principles in modern-day litigation. Here, there was neither speed nor efficiency. Likewise there was no regard to “delay and expense”. In turn, these ongoing defaults have led to no just resolution of the proceedings. The adverse flow-on effects for other litigants, and the Court, are self-evident. Even when presented with a solution by the Court, relatively recently, to obtain a s.62G report, the conduct of the parties (and/or their lawyers) thwarted it. Every principle set out by the High Court in both Aon v ANU and in Expense Reduction was actively, or by default, contravened.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 3 February 2022
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