Szalai & Szalai (No 2)
[2024] FedCFamC1F 805
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Szalai & Szalai (No 2) [2024] FedCFamC1F 805
File number(s): DNC 45 of 2023 Judgment of: KARI J Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex Tempore Reasons – Where the father is a self-represented litigant – Where there has been a lack of meaningful participation in the proceedings by the father – Where the father has not consistently attended hearings – Where the father was on notice that the Court would give consideration to finalising the proceedings in the event of his non-attendance at the hearing – Where the father did not appear – Where the father has not been prosecuting his case with due diligence – Where the father’s Response to Final orders is struck out Legislation: Family Law Act 1975 (Cth) s 68LA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.6, rr 10.26, 10.27
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 14 November 2024 Place: Adelaide via Microsoft Teams Counsel for the Applicant: Mr Fernandez Solicitor for the Applicant: Duggan Family Lawyers The Respondent: No appearance Solicitor for the Independent Children's Lawyer: Ms Farmer of AFL Withnalls Lawyers ORDERS
DNC 45 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SZALAI
Applicant
AND: MR SZALAI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS:
1.That the father's Response for Final Orders filed on 12 April 2023 be struck out and dismissed.
2.The proceedings be listed for finalisation to 25 November 2024 at 10.00 am (Adelaide time) with such hearing to take place:
(a)With the parties and the Independent Children's Lawyer and their respective legal representatives to be personally present in the City E Registry; and
(b)The Honourable Justice Kari to conduct the hearing electronically.
3.During the period of adjournment, the Independent Children's Lawyer do meet with the children and be in a position to advise the Court in relation to the same at the adjourned hearing.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Szalai & Szalai has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
These proceedings come before the Court today in relation to the parenting arrangements for two children, X born in 2014 and Y born in 2016.
The proceedings do not have a very long history before the Court in relative terms, albeit it may feel to the parties as if they do have an exceptionally long history. The proceedings were commenced by the mother when she filed an Initiating Application on 1 February 2023.
I do not propose at this stage to set out a detailed history of the parties' relationship and the circumstances which led to the proceedings being commenced, other than to comment that there are significant allegations of family violence in the proceedings whereby the mother alleges that she has been the victim of serious and extensive family violence perpetrated by the father. Indeed, prior to the commencement of these proceedings, an interim intervention order had been made, and I am now aware that there is a final intervention order made protecting the mother from the father who is named as a defendant to the said intervention order.
During the course of the proceedings in this Court, there have been a number of reports that have been obtained, namely a Child Impact Report of 29 May 2023 and a Family Report of 19 January 2024. I have had regard to both of those extensive reports, and particularly where they set out chronologically historical matters in relation to this family unit.
So far as the proceedings as they stand before the Court today, I am aware that on 19 September 2024, the proceedings had been listed before me for case management. That listing was made pursuant to orders made by a judicial registrar on 11 September 2024. Those orders were made in Chambers. In addition to the listing, an order was made that day directing the parties be personally present at the hearing on 19 September 2024, whether legally represented or not. Additionally, orders were made for the parties to file a brief summary of issues in dispute, orders sought, and a trial plan and details as to any interlocutory issues that required determination (Order 3).
There was not compliance by any of the parties in relation to Order 3 made 11 September 2024. Be that as it may, the hearing on 19 September 2024 proceeded before me as an in-person hearing as I was present in the City E Registry on that occasion. At that hearing the mother was represented by counsel, the Independent Children's Lawyer (“ICL”) Ms Farmer appeared, but there was no appearance on behalf of the father.
The notations to the orders made on 19 September 2024 were detailed specifically in relation to the attempts that had been made to engage the father for the hearing that day. At that hearing, as recorded in the notations, the ICL also raised concerns with the Court as to the father's lack of meaningful participation in the proceedings and the ad hoc nature of his attendances and appearances.
As a result of all of the matters raised with the Court on that occasion, I determined it appropriate to list the matter for a further face-to-face hearing, being an adjournment to today, namely 14 November 2024. Again, I made orders that the hearing take place on a face-to-face basis in the City E Registry. As it turns out, the parties and the ICL are present in the City E Registry and the hearing is being conducted by me remotely sitting in Adelaide.
The notations to the orders made on 19 September 2024 made it clear to the parties that today's hearing would proceed on a face-to-face basis, and indeed, the father was put on notice, pursuant to Notation C, that if he did not attend the hearing, whether legally represented or not, the Court would give consideration at today's hearing to finalising the proceedings on the basis of the orders sought by the mother in her Amended Initiating Application filed on 11 April 2024.
Since that hearing on 19 September 2024, there has been a review hearing heard by the Honourable Austin J on 11 November 2024. I am aware from the orders made that day and now published, that the father did not attend that review hearing, the review application having been an application that the father had filed on 30 August 2024 in relation to orders that had been made by Senior Judicial Registrar Norrington on 28 August 2024.
Ultimately, I am told that as a result of a combination of the father not attending the review hearing, but in addition, because Austin J considered the review application on its merits, the father's review application was dismissed. I am told by the ICL that the father did not attend the review hearing at the allocated time, but that some time thereafter he attempted to engage in the proceedings. However, that attendance was seemingly too little, too late, and the matter had been heard and determined by his Honour, or was in the course of being heard and determined by his Honour.
That brings us to today's hearing. As I have earlier indicated, by my orders of 19 September 2024, the proceedings were listed for further case management today. Much like I did on the last occasion, there was a slight delay in me coming onto the bench so as to enable the father a chance to appear at the hearing. The matter has been called on outside the court room in the City E Registry, and again, there is no appearance by the father today.
I am aware from submissions made by the ICL that earlier today she advised the parties, and certainly the father by email reminding him of today's hearing. Again, the father is not present today. As I indicated to the ICL during her submissions today, I consider that the orders and notations to the orders I made on 19 September 2024 left no doubt that the Court would give consideration to finalising the proceedings today, if indeed the father continued not to properly engage in the proceedings and to prosecute the proceedings from his perspective with due diligence.
In light of the father's non-attendance now across the three recent hearings before a judicial officer, I am certainly satisfied that the father is not prosecuting the proceedings with due diligence. Indeed, as a result of the same and with reference to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), and in particular those contained in Part 10.6, there are a number of avenues available to the Court if a respondent is in default. Specifically, those matters are set out in r 10.26(2).
In light of the father's repeated non-attendance in the proceedings in recent times, I am satisfied that the father is no longer prosecuting the proceedings with due diligence, nor in the case of his Review application heard by Austin J did he prosecute his application with due diligence.
Rules 10.27 provides for a range of options for the Court if a party is in default. In particular, r 10.27(1)(a) allows the Court to order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the party.
In addition to the power contained in the Rules as to how the Court can proceed if a party is in default of orders and/or forms the view that the party is not prosecuting proceedings with due diligence, there is additional power contained in s 69 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to proceed in the fashion that I propose to shortly proceed.
I point out that, in addition to the matters that I have raised as to my view at this juncture that the father is not prosecuting the proceedings with due diligence, I also comment that the orders that I made listing the matter to today, together with the orders that were made by the judicial registrar listing the matter for the hearing on 19 September 2024 required the father's personal attendance at each of those hearings, and his non-compliance with those orders are also matters that I have taken into account in forming my views.
In light of all of those matters, it is the mother's position today that the response of the father be struck out and that the proceedings be listed for a final hearing, effectively without the father's participation.
The Court is unable to finalise the proceedings today because the ICL has properly informed the Court that she has not met with the children since approximately May of this year and, accordingly, the Court is unable to finalise the proceedings as the ICL does not consider that she has complied with her obligations pursuant to s 68LA(5A) of the Family Law Act 1975 (Cth). I am told today that the ICL has made arrangements to meet with the children tomorrow.
Accordingly, the position of the mother is that the father's response be struck out, that there be a short adjournment to facilitate the ICL meeting with the children, and thereafter the matter returning to Court to be finalised as foreshadowed by the orders of 19 September 2024.
For all of the reasons that I have given, I am satisfied that that is an appropriate path forward. It is not in the children's best interests to have these proceedings continue, in circumstances where the respondent father is not engaging in the litigation.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 26 November 2024
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