Symes and Glover

[2011] FMCAfam 735

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 5/6^th 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:

1. The mother’s affidavit sworn on 15 June 2011 is struck out, and the mother shall not rely on that affidavit.

2. The mother shall file and serve any further affidavit evidence within

   
   

   28 days.

3. 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. 

4. 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.

5. 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

1. 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.

2. 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.

3. 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…