Symes and Glover
[2011] FMCAfam 735
•13 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SYMES & GLOVER | [2011] FMCAfam 735 |
| FAMILY LAW – Practice & Procedure – striking out affidavit – mother’s affidavit of 5 volumes, including many annexures relied on at hearing of parenting proceedings – counsel ultimately indicating about 5/6th of affidavit would not be read – affidavit struck out as being oppressive and vexatious and an abuse of process. |
| Applicant: | MR SYMES |
| Respondent: | MS GLOVER |
| File Number: | PAC 1868 of 2010 |
| Judgment of: | Halligan FM |
| Hearing date: | 13 July 2011 |
| Date of Last Submission: | 13 July 2011 |
| Delivered at: | Dubbo |
| Delivered on: | 13 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas |
| Solicitors for the Applicant: | McIntosh McPhillamy & Co |
| Counsel for the Respondent: | Mr Siggins |
| Solicitors for the Respondent: | Mason Mia & Associates |
ORDERS
It is for these reasons that I make the following order:
The mother’s affidavit sworn on 15 June 2011 is struck out, and the mother shall not rely on that affidavit.
The mother shall file and serve any further affidavit evidence within
28 days.
I note counsel for the Independent Children's Lawyer must withdraw, having represented the mother in prior proceedings, and the hearing must therefore be vacated.
The proceedings are adjourned to a date to be fixed by the parties’ legal representatives and the Independent Children's Lawyer approaching Federal Magistrate Dunkley’s chambers.
I direct that my reasons be transcribed and a copy be sent to the Legal Aid Commission of New South Wales.
IT IS NOTED that publication of this judgment under the pseudonym Symes & Glover is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DUBBO |
PAC 1868 of 2010
| MR SYMES |
Applicant
And
| MS GLOVER |
Respondent
REASONS FOR JUDGMENT
The mother has sought to rely on an affidavit of five volumes in these parenting proceedings. I challenged the mother’s counsel about the appropriateness of an affidavit of this size, as much of the content on a cursory examination appeared arguably to be irrelevant, repetitive or in the nature of submission, debate or commentary on the evidence. I ultimately called on the mother's counsel to show cause as to why the affidavit should not be struck out.
Having heard the mother's counsel, I intend to strike this affidavit out. It is outrageous that an affidavit of such length and content should ever have been filed. The gross inappropriateness of the affidavit is demonstrated by the fact that when I challenged it, counsel for the mother – and I hasten to add counsel is not the drafter of this document and is not responsible for it –advised me that this tome could be reduced from 130 pages to 20, from 744 paragraphs to approximately 120.
Further, it was said that the annexures, which in the current document run through the alphabet A to Z four times and on the fifth occasion as far as VVVVV, and which comprise 603 pages, will be reduced so that the identification of those annexures will not exhaust the alphabet even once, much less nearly five times. As I have already commented, that most eloquently demonstrates the gross inappropriateness of this document ever having been filed in that form.
In my view, it is an abuse of process. In my view, it is oppressive, in the sense of being seriously and unfairly burdensome, prejudicial and damaging to the respondent and the Independent Children's Lawyer, and vexatious, in the sense of productive of serious and unjustified trouble and harassment to the father and the Independent Children's Lawyer. It casts a ridiculous burden upon the Court to try and deal with a document of that magnitude where so much of its content should never have been included.
It was put to me when I asked counsel to show cause why I should not strike out this affidavit that the affidavit could be redacted by the provision of a schedule indicating the parts that either were or were not read, as the case may be, so that only the parts that might arguably properly remain would remain. That is a totally unacceptable approach with a document comprising five volumes and 733 pages, less than one sixth of which will ultimately be relied on. To try and find any specific piece of evidence in that particular haystack, even with an index to the annexures, as there is in this case, is almost impossible.
It is wholly inappropriate that, the father and the Independent Children's Lawyer having been given a list of what either is or is not to be read from this affidavit, they should bear the responsibility to go through their copy of the document and make the editing that should never have been necessary in the first place. That will simply add even more cost and delay to these other parties and continue the oppression that this document creates upon them.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Halligan FM
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