Szalai & Szalai (No 3) - [2024] FedCFamC1F 838

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Szalai & Szalai (No 3) [2024] FedCFamC1F 838

File number(s): DNC 45 of 2023

Judgment of: KARI J

Date of judgment: 12 December 2024

Catchwords: FAMILY LAW – CHILDREN – Where the father’s Response to Final orders was dismissed and struck out in circumstances where the Court formed the view that the father was not prosecuting the proceedings with due diligence –Where the father makes an oral application to have his Response reinstated – Where the father has failed to comply with procedural orders as well as orders for time spending at a contact centre – Apprehension that the father is using these proceedings to perpetrate further family violence upon the mother – Father’s oral application refused – Proceedings are finalised with orders made in terms of the mother’s Amended Initiating Application

Legislation:
Family Law Act (1975) ss 60CC, 61C, 68LA, 69ZN, 95, 96, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 69

Family Law Rules 2004 (Cth) r 16.05

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 10, rr 2.14, 2.18, 8.13, 10.13, 10.26, 10.27, 15.15

Cases cited:
Allesch v Maunz (2000) 203 CLR 172

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Barbey & Tuttle (2013) FLC 93-534

Szalai & Szalai [2023] FedCFamC2F 977

Szalai & Szalai [2024] FedCFamC1F 757

Szalai & Szalai (No 2) [2024] FedFamC1F 805

Szalai & Szalai (No 2) [2024] FedCFamC2F 1709

Division: Division 1 First Instance

Number of paragraphs: 86

Date of hearing: 25 November 2024

Place: Adelaide via Webex

Counsel for the Applicant: Mr Fernandez

Solicitor for the Applicant: Duggan Family Lawyers

Solicitor for the Respondent: Litigant in person

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:

12 DECEMBER 2024

THE COURT ORDERS THAT:
1.The Respondent’s oral application to reinstate his Response for Final Orders filed 12 April 2023 is dismissed.
2.The Mother have sole responsibility for the children, X, born 2014 and Y, born 2016 ("the children").
3.The children live with the Mother.
4.The children shall spend supervised time with the Father at D Contact Service subject to their availability.
5.On the following days of significance, the children shall communicate with the Father via telephone, with the Father to instigate the telephone call to the Mother:
(a)On Father's Day, at 6.30 pm;
(b)On the Father's birthday, at 6.30 pm;
(c)On X's birthday, at 6.30 pm; and
(d)On Y's birthday, at 6.30 pm.

6.The children shall otherwise communicate with the Father via telephone each Thursday at 6.30 pm, with the Father to instigate the telephone call to the Mother.
7.The parties shall communicate via email in relation to the children’s school fees or extra curricular activity fees only.
8.The parties shall communicate in relation to the children via telephone in the event of an emergency only.
9.The Mother shall do all things necessary to obtain a passport for each of the children, including but not limited to:
(a)The Mother will prepare the necessary passport application forms;
(b)The Mother will meet the costs of the children's passports applications;
(c)The Mother will notify the Father in writing once the passports have been issued; and
(d)The Mother will retain possession of the children's passports.

10.The Mother shall do all acts and sign all things necessary to apply for Country C Citizenship for each of the children, including but not limited to:
(a)The Mother will prepare the necessary Country C Citizenship application forms;
(b)The Mother will meet the costs of the Country C Citizenship applications;
(c)The Mother will notify the Father in writing if the Country C Citizenship has been approved; and
(d)The Mother will retain possession of the Country C Citizenship forms.

11.The children be permitted to travel interstate and/or overseas with the Mother provided that the Mother provides the Father with itineraries, contact addresses and telephone numbers for the children whilst they are interstate or overseas so that the children can communicate with the Father via telephone once a week.
12.Provided the Mother has given notice to the Father in accordance with paragraph 11 above, the children be permitted to travel to Country C with the Mother for up to six weeks per year, with the Mother to pay the expenses of the children's flights and accommodation and the Mother shall provide to the Father, the itineraries, contact addresses and telephone numbers for the children whilst they are overseas.
13.That the parties be restrained by injunction and an injunction issued restraining each of the parties from:
(a)Denigrating the other parent or the parent's partner or members of that parent's family in the presence of or within the hearing of the children or any of them and each parent remove the children from the hearing of anyone else who may be denigrating the other parent or that parent's partner or family;
(b)Discussing the court proceedings with the children or allowing the children to read or view any court documents or permitting any person to do so;
(c)Discussing adult issues and parenting issues with the children or permitting any person to do so; and
(d)Discussing extreme religious beliefs with the children or permitting any person to do so.

14.Pursuant to s 68B(1) of the Family Law Act 1975 (Cth), for the personal protection of the Mother and the children, the Father is restrained and an injunction is granted restraining the Father from:
(a)Approaching the Mother in person;
(b)Attending at the Mother's place of employment; and/or
(c)Video recording or taking photographs of the Mother.

15.The Father is restrained and an injunction is granted restraining the Father from:
(a)Attending at the Mother's residence unless otherwise agreed by the Mother in writing;
(b)Attending at the children's school with the exception of attendances for parent/teacher interviews, school assemblies and upon invitation by the school;
(c)From exposing the children to abuse (including verbal abuse) or family violence and that the father will take all measures necessary to remove the children from any act of family violence should such circumstances arise;
(d)From posting to any social media account negative or derogatory comments including photos or information in relation the children, the parents or these proceedings;
(e)From communicating with the mother except in accordance with these orders for issues in relation to the children and the father shall ensure his communication remains polite and respectful;
(f)From using the children as a conduit to pass messages to the other parent; and/or
(g)From discussing, commenting or exposing the children to his religious beliefs.

16.That a copy of Orders authorises the child's children's school and medical practitioners to provide to each of the parties:
(a)Copies of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the children;
(b)Copies of medical reports including any referrals, information regarding any medical condition suffered by the children, including treatment and any other information or material concerning the health and wellbeing of the children; and
(c)If the above material is provided to the Father, any contact details of the Mother included in that material shall be redacted by the school or medical practitioner.

17.That the Mother and Father shall:
(a)Forthwith, shall exclusively use the name "[X]" and "[Y]" as the names of the children of the relationship formally known as "[…]" and "[…]".

18.That the Mother shall:
(a)Forthwith, do all things necessary, including making application and executing documents, to seek the alteration of the names of the children in the Register of Births, Deaths and Marriages to:
(i)Change X's name from "[his previous name]" to "[X]"; and
(ii)Change Y's name from "[her previous name]" to "[Y]".

19.The Mother shall pay such fees, if any, as are applicable to an application for an alteration of the Register of Births, Deaths and Marriages.
20.The Mother shall pay such fees, as are applicable to obtain one copy of the children's updated Birth Certificates, once the name changes have been made.
21.The Father shall pay such fees, as are applicable to obtain one copy of the children's updated Birth Certificates, once the name changes have been made.
22.The appointment of the Independent Children’s Lawyer be discharged, subject to any appeal.
23.The proceedings otherwise be dismissed as finalised

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).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION

These are parenting proceedings in relation to the parties’ two children (“the children”), who are aged 10 and 8 respectively.
The proceedings are before the Court in circumstances where on the last occasion (14 November 2024), an order was made striking out and dismissing the father’s Response filed 12 April 2023. That order was made in the absence of the father and in circumstances where the Court formed the view that the father was not prosecuting the proceedings with due diligence (Szalai & Szalai (No 2) [2024] FedFamC1F 805).
Whist the Court was asked to finalise the proceedings on 14 November 2024 by each the mother’s counsel and the Independent Children’s Lawyer (“ICL”), the Court was not able to do so in circumstances where the ICL had not discharged her obligation pursuant to s 68LA(5A) of the Family Law Act (1975) (“the Act”) to meet with the children and provide the children with an opportunity to express their views. The proceedings were accordingly adjourned for a short period of time to enable the ICL to discharge her obligation, with a view to the proceedings being finalised at the adjourned hearing on 25 November 2024.
At the hearing on 25 November 2024, the father attended and made an oral application for his Response filed 12 April 2023 to be reinstated. That oral application was opposed by both the mother and the ICL.
To that end, the mother’s counsel urged the Court to finalise the proceedings by making the orders sought by the mother in her Amended Initiating Application filed 11 April 2024. Alternatively, the mother’s counsel submitted that if the Court was inclined to reinstate the father’s application, there should be a self-executing order providing for the father to have 28 days to file further material and comply with previous orders for the filing of documents, and if he did not comply with those orders, then, again, that the proceedings finalise in accordance with the mother’s Amended Initiating Application filed 11 April 2024.
For the reasons that follow, the father’s oral application to reinstate his Response filed 12 April 2023 is refused. Orders shall instead be made finalising the proceedings as proposed by the mother and supported by the ICL.
In the reasons that follow various facts are summarised. The facts that have been summarised have been taken from the material filed by the mother. It is difficult to discern the agreed facts and those matters of controversy between the parties, because the father has failed to file an affidavit in these proceedings which meaningfully engages with and/or responds to the assertions made by the mother in her material, nor has he ever filed a detailed affidavit putting his version of events before the Court. Accordingly, throughout these reasons where it is apparent that there is a controversy between the parties the same shall be identified and given the nature of the hearing, no findings are made resolving those controversies.
BACKGROUND
The mother was born in Country C in 1982 and she is 42 years of age.
The father was also born in Country C in 1981 and he is 43 years of age.
The parties started cohabitating in 2006, married in 2008, separated in 2017 and divorced in 2018.
The early part of the parties’ relationship and their marriage took place in Country C. The parties relocated to Australia shortly after their marriage and moved to live in City E in 2012.
There are two children of the parties’ relationship, X born 2014, and Y born 2016. Each of the children bear the name given to them by the parents, together with the middle name given to each of them by the father.
The mother asserts that there is a history of family violence between the parties. In her various documents filed in the proceedings, the mother has made allegations as to incidences of family violence, and in particular, incidences that have resulted in the making of family violence orders which named the mother as a protected person and the father as the defendant as follows:
(a)A Domestic Violence Order (“DVO”) made in late 2015, which the mother describes as a “full non-contact” DVO… [which] required [Mr Szalai] to leave the house and he left.” (Mother’s affidavit filed 1 February 2023 at paragraph 32). The mother says that this order was made to protect herself and X (Mother’s affidavit filed 20 July 2023, paragraph 60). The mother, however, says that as a result of continual pressure from the father to withdraw the DVO, she finally did so in early 2016, with the father giving a 12-month undertaking “with non-violence terms” (Mother’s affidavit filed 20 July 2023, paragraph 62).
(b)In early 2021, the mother says that with the assistance of the Domestic Violence Legal Service, she made an application for a DVO, with an Interim DVO made in the Local Court in early 2021, naming the mother as the protected person and the father as the defendant. The terms of the DVO permitted communication between the parties regarding the children.
(c)The mother says that the father breached the terms of the DVO by communicating with her unrelated to the children in early 2022. The mother says the father was arrested and spent a night in custody. Following his release, she says that the father parked outside her home, resulting in further police attendance and the father’s arrest. The mother says that the father was convicted of two counts of breaching the DVO.
(d)The mother says that in about September 2022, the father emailed her legal representatives about the DVO in the following terms (Mother’s affidavit filed 1 February 2023, paragraph 49):
“…Without prejudice I am making the following proposal to [Ms Szalai]. If she enters in marriage with covenant with me under the commonwealth law, I’m going to grant her everything she wants, I’m going to give her all of my assets and income, and I will carry her on my hands. I am looking forward to her reply. Let’s not forget that without forgiveness there’s no life…”
(As per the original)
(e)The proceedings for a final DVO were finally heard at a final hearing in late 2023, after several earlier attempts to do so. Reasons were delivered in early 2024, and the Court has the benefit of those reasons (annexed to the affidavit of the mother filed 21 November 2024). When regard is had to those reasons, the findings that were made included:
(i)The Interim DVO made in 2015 arose from an argument between the parties which saw the father slap the mother twice to her face and smash bottles in the kitchen in the presence of at least one of the children.
(ii)The father was found to have breached that interim DVO without a conviction being recorded in early 2016.
(iii)The father was found to have committed two further breaches of the DVO in early 2021, with a conviction recorded and a good behaviour bond imposed. Each of those breaches relating to text message communication to the mother by the father.
(iv)The father had (on the balance of probabilities), displayed a pattern of conduct towards the mother “which is definitely persistent and so frequent as to constitute harassment and is intimidation”.
(v)The father’s assertions that the recent communications were emergencies were “…absurd but are unfortunately indicative of his attitude of entitlement and show a disregard in general to the court orders he was restrained under… They also show a disregard in relation to appropriate boundaries regarding the Applicant and I find it is also evidence of controlling behaviour which could result in wearing down the Applicant’s resolve in relation to having no contact with the Defendant.”
(vi)The mother suffered “mental turmoil”, and she “genuinely feared for her safety”, with the father attempting to harass the mother into “resuming the relationship”.
(vii)The father “lacks insight into his past conduct” and “appears to have little capacity for self-regulation and restraint”.
(f)Ultimately a final DVO was made in early 2024 protecting the mother from the father for a period of three years.
The mother asserts that the father has paid limited Child Support since separation as follows:
(a)Until the end of 2021 at the rate of $34 per month in accordance with a Child Support Assessment.
(b)From December 2022, pursuant to a reassessment of Child Support at the rate of $34 per week, with only two payments being made as at 1 February 2023, in the amount of $37.17 on 22 December 2022, and $88.85 on 13 January 2023 (Mother’s affidavit filed 1 February 2023, paragraphs 95-97).
THE POST-SEPARATION PARENTING ARRANGEMENTS
The children have lived with the mother since separation.
The mother asserts that the children have spent sporadic time with the father in the post separation period as follows (per the mother’s affidavit filed 20 July 2023):
(a)From 2018 until May 2020, the time spending was sporadic, with the father being uncontactable from April to September 2019.
(b)On 6 May 2020 a Parenting Plan was signed between the parties providing for the children to spend time with the father during the day each Saturday to attend church with the father and each Sunday evening until Tuesday afternoon. The mother asserts the father did not comply with this Parenting Plan and that ultimately X spent approximately one night a week with the father and Y spent approximately one night every three weeks with the father.
(c)From late 2020 to January 2021, the children spent a couple of hours a week, separately, with the father.
(d)At some point in 2021 the children did not see the father for about five months.
(e)In early March 2022 the children began spending time with the father each Sunday afternoon until the commencement of school on Monday (I query however whether this was in fact in the year 2021 given the balance of matters deposed by the mother).
(f)From January 2022 to September 2022 the children’s time spending again became sporadic with the father randomly texting the mother to spend time with the children rather than adhering to set dates and times.
(g)In September 2022 the children began spending time with the father from 5.00 pm Friday until 5.00 pm Saturday. This arrangement ended when the father’s car broke down towards the end of that month.
(h)Between December 2022 and February 2023 the children did not spend time with nor communicate with the father, other than one period of time where X spent a Sunday with the father.
(i)Between February 2023 and May 2023 the children spent time with the father between 5.00 pm and 7.00 pm on Sunday for three out of every four weekends.
THE LITIGATION

These proceedings were commenced by the mother when she filed an Application for Final Orders on 1 February 2023. By that application the mother sought detailed parenting orders. In summary, the orders the mother sought provided for:
(a)The mother to have sole parental responsibility for the children.
(b)The children to live with the mother.
(c)The children to spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday.
(d)Communication between the children and the father via telephone, FaceTime or skype each Wednesday at 6.30 pm.
(e)Passport applications for the children, with the mother to thereafter retain possession of the children’s passports.
(f)The parties’ application for Country C citizenship for the children.
(g)The children’s travel to Country C with the mother for up to four weeks each year.
(h)Injunctions restraining each of the parties from:
(i)Denigrating each other or members of their respective families in the presence of within hearing of the children, or permitting others to do so;
(ii)Discussing the court proceedings with he children or allowing the children to read or view court documents;
(iii)Discussing adult issues and parenting issues with the children; and
(iv)Discussing extreme religious beliefs with the children.
(i)The provision to each of the parties of the children’s school and medical records.
(j)The name change of each of the children such that the middle name of each of the children be removed and X’s first name to be changed.
The mother’s legal representatives had difficulties in effecting personal service of the initiating documents on the father in early February 2023. Those difficulties included the father receiving the documents by email from the mother’s solicitors on 1 February 2023. The father’s response to the email serving the proceedings on him was, with the benefit of hindsight, telling, given the manner in which the proceedings have been prosecuted by him since that time. His response read as follows:
Michelle, I ask this court application be dismissed as nothing inside of the allegations is true. Also, there has not been a fair and genuine mediation, so I ask for a mediation to be booked first. Please, also provide me with the court email, if I needed to file any affidavits in future. I hope for your understanding. Thank you again. [Mr Szalai].
(Emphasis added)
The first hearing in these proceedings occurred before a Judicial Registrar on 22 March 2023. The father did not attend the hearing personally (despite the requirement in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.15 (“the Rules”), but rather appeared by telephone. The father had not filed any responding documents (despite the requirement in r 2.18 that he do so 28 days before the hearing).
At the hearing on 22 March 2023:
(a)The father was ordered to file a Notice of Address for Service within 48 hours and responding documents by 12 April 2023 (Response, Genuine Steps Certificate, Supporting Affidavit and a Notice of Child Abuse, Family Violence or Risk).
(b)An ICL was appointed.
(c)A Child Impact Report was ordered with appointments to take place in May 2023.
The father complied both with the requirement to file a Notice of Address for Service, and for the filing of a Response, Genuine Steps Certificate and a Notice of Child Abuse, Family Violence or Risk).
By his Response filed 12 April 2023 (which was that struck out at the hearing on 14 November 2024), the father sought the following:
1.Dismiss application order.
2.Do not allow the children dual citizenship, passports or travel overseas/interstates. To stay as they are now.
3.Do not allow the children any changes of their names. To stay as they are now.
4.Parental rights to stay as they are now, 50/50.
5.Regarding the share of care for the children, to be done through a mediation, based on mutual agreenment [sic].
(As per the original)
The father however did not file an affidavit in these proceedings until 19 June 2023. It would appear from orders made on 14 June 2023, that the father attempted to file an affidavit earlier, however the same was rejected for filing by the registry. The affidavit ultimately filed by the father contained two and a half pages of written content; much of which was submission rather than evidence, together with broad generalisations.
A Child Impact Report was prepared on 29 May 2023. Both of the parents and the children participated in the interview process for the preparation of the Child Impact Report. Of significance, the report identified:
(a)Family Violence as a risk factor for this family, with the alleged pattern of “controlling and obsessive behaviours” towards the mother by the father combined with the father “not accepting any responsibility for his behaviours” and continuing to “oppose limitations” in his contact with the mother indicating a “potentially high risk of future harm” to the mother and/or the children (at [30], [37]).
(b)Under the heading “Key Consideration and Pathway for Decision Making”, the Court Child Expert recorded:
49.This limited assessment has raised risk factors which require consideration in the determination of the children’s living and parenting arrangements, including serious allegations of family violence and concerns about [Ms Szalai’s] mental health.
50.The writer has formed a preliminary view that caution is required in this matter, and therefore suggests the following interim measures: (a) that there be no face to face contact and limited communication between the parents, and the mother be permitted to exercise sole parental decision-making in the case of emergency and the children’s day to day arrangements; (b) the children’s time with their father is supervised at [D Contact Service] so that there is an independent account of his time with them; (c) a family report be ordered to assist the Court in further determination of the children’s arrangements; (d) documents be subpoenaed from [Region B] Police and the father’s previous treating health specialists; (e) the father participate in a psychiatric assessment, and the resulting report be made available to the report writer prior to commencement of family report interviews.
Pursuant to orders made 14 June 2023, the proceedings were listed for an interim defended hearing before Senior Judicial Registrar Norrington on 25 July 2023.
A further affidavit was filed by the father on 17 July 2023. That affidavit simply served as a vehicle for the father to annexe a copy of text communications, seemingly between the father and the mother at some undated time about the father’s communication with the children, or lack thereof. The communication by text seemingly from the mother asked the father to stop communicating with her and asserts that he is in breach of the “current DVO”.
The proceedings were next before the Court for the intended interlocutory hearing before Senior Judicial Registrar Norrington on 25 July 2023, which was conducted electronically. The father was in attendance at that hearing. On the face of the orders, it is apparent that the father sought and was granted an adjournment that day. It appears that the adjournment was related to technical difficulties. Orders were otherwise made:
(a)Granting the father leave to appear at the adjourned hearing by Microsoft Teams;
(b)For the filing of Case Outlines by 28 July 2023; and
(c)Adjourning the interlocutory hearing to 1 August 2023.
The hearing on 1 August 2023 proceeded and Senior Judicial Registrar Norrington reserved his decision until the following day, 2 August 2023.
On 2 August 2023, Senior Judicial Registrar Norrington published detailed reasons and made a range of interlocutory parenting orders (Szalai & Szalai [2023] FedCFamC2F 977). The interlocutory orders were largely those sought by the mother in her Initiating Application and were supported by the ICL. Of significance, the orders provided for:
(a)The children to live with the mother;
(b)The children to spend supervised time with the father at D Contact Service;
(c)The father to communicate with the children each Thursday at 6.30 pm;
(d)The parents to communicate about the children and “parenting matters only” by email or text, other than in the case of emergency when communication was to be by phone.
(e)The provision to each of the parents the children’s school and medical information;
(f)The father to undertake certain parenting courses.
(g)Injunctions restraining the father from:
(i)Approaching the mother in person;
(ii)Attending the mother’s place of employment;
(iii)Attending the mother’s residence;
(iv)Attending at the children’s school, except for the purposes of parent/teacher interviews, school assemblies and by invitation by the school;
(v)Video recording or taking photographs of the mother;
(vi)Denigrating the mother or members of her family to or in the presence or within hearing of the children;
(vii)Discussing the proceedings with the children or permitting them to view court documents;
(viii)Consuming alcohol to excess 12 hours prior to time spending;
(ix)Physically disciplining or restraining the children or allowing a third party to do so;
(x)Exposing the children to abuse (including verbal abuse) or family violence, and that reasonable steps be taken to remove the children from such situation;
(xi)Posting any negative or derogatory comments or photos or information about the children or the parents on social media;
(xii)Communicating other than in accordance with the orders;
(xiii)Using the children as a conduit to pass messages;
(xiv)Discussing, commenting or exposing the children to his religious beliefs.
(h)The preparation of a Family Report to be released by 28 February 2024.
(i)A chambers hearing on 24 November 2023 to give consideration to a further listing of the proceedings in March 2024.
The father filed a Review Application in relation to all of the orders made 2 August 2023, on 21 August 2023. In relation to the Review Application:
(a)The father sought orders in place of those made 2 August 2023 which were expressed as follows; “extension of time to file affidavit and stay of execution form”.
(b)The application was listed for hearing before Judge Campbell on 8 September 2023, with ex tempore reasons given and orders made dismissing the application at the conclusion of the hearing (Szalai & Szalai (No 2) [2024] FedCFamC2F 1709).
(c)In the reasons, Judge Campbell variously recorded:
6. …but what will be apparent from the review filed by the father is that he has no specific parenting plan for the Court – no arrangement he is promoting in terms of what the Court does. This is a fundamental deficit in his case. He is after all, the parent of these children. If he disagrees with the arrangements proposed by the mother, if he disagrees with the orders made the Senior Judicial Registrar (as he has the right to do) he has the obligation to detail for the mother, to detail for the Independent Children’s Lawyer, to detail for the Court exactly what he says should happen instead.
7. He merely says in the document he has filed ‘Dismiss all the proceedings’. He maintained that submission before me, but when the Court delved a little further about what it was he sought, the Court was referred to his response. It is a little difficult to follow, but that is largely a function of the father not being a lawyer, and although he does extraordinarily well with the use of English language, its not his first language. But the impression I had was that he was seeking an equal time arrangement, but when the practicability of that proposal was tested, in terms of practical questions live, “what hours does he work,” it soon became apparent that he would not be able to maintain it and his work.
…
10. With respect to the father, he needs to understand right now that this is not the way this system works. The right he has – the right to be heard – is the right to propose an outcome to the Court and to bring evidence in support of what he proposes and to seek to persuade the Court that it is the right outcome. He has failed at the first hurdle of making it clear exactly what he wants.
11.He also failed, in my view, to adequately prosecute his case. The evidence he relies on is really not much more than a series of submissions, which he says he is satisfied demonstrates certain factual conclusions… The Court cannot simply say, “Well, if you’re satisfied, then that’s enough.” It’s his job to persuade me that I need to be satisfied of those things, and the evidence he has produced does not do that…
12. For the record, the father has been excluded from the hearing because, despite my clear warning, he interrupted me during my judgment. Can I pause there to note this is consistent with the vast majority of the evidence… that he will not answer to authority. He will not tolerate being told what he can and cannot do. He will not obey clear instructions. Indeed, he will resist them.
13.… The mother’s case seeks, on an interim basis, to limit the parenting arrangements for the children to spend time with and communicate with the father.
14.The foundation for them is in the long history of family violence alleged by her. Her allegations include physical violence, damage to property, sexual assault, financial control and general coercive and controlling behaviour. A common thread to what is alleged is that the father resists the mother’s requests that he not persist in certain behaviour. Curiously, the father himself provides examples of where he has done just that, examples where the mother has said she does not want to receive any further communications from him, and yet he not only persists, but demonstrates importunity. That was my experience of the father today in conducting this hearing.
15. The nub of the allegations made by the mother are that the father will do what he wants, when he wants it, regardless of the wishes of her or even of authorities appointed over him. He will not obey Courts or DVOs, and the clearest example of that was that recent interruption to my judgment. He cannot help himself, it seems.
…
21.… the father’s attitude goes beyond merely asserting his right to say that the allegations against him are not true. He clearly asserted that the report writer, someone employed by the Court, independent of the parties, fabricated material in the Child Impact Report. They made it up the father says. It wasn’t simply wrong – the report writer made it up deliberately to assist the mother… and the father suggested (I accept in a broad, general way) that it may be part of a broader idea of corruption at the upper echelons of government or society, designed to in some way erode the marriage relationship.
…
23.If that delusion – that the Court Child Expert is working in cahoots with the mother and fabricating evidence in order to assist the mother to get what she wants – if that is true, that he really believes that – and he seemed to today – it suggests a delusional quality that amplifies the concern, that amplifies his distinction between his view of the world and what he says should happen and, perhaps, reality. And this expert warns the Court that that fracture between his perception and reality may cause real risk…
…
34. … The communications I have seen between the parents leave me with little doubt, at least at this preliminary stage, that important decisions might never be made or might be significantly delayed if it required the parents to agree. I will not be making an order for equal shared parental responsibility, but I can see no grounds, particularly in light of the orders I intend to make in relation to time, why there needs to be an order for sole parental responsibility to the mother.
35.… I think the statutory expression of the common law principle, that each parent–in the absence of any order concerning parental responsibility–has parental responsibility for the children – is sufficient. If there is a difficulty in some way with that, it will be necessary for a further application to be made, raising the specific circumstances.
36.I made that inquiry today and it does not appear they exist at the moment. But otherwise, I think the orders proposed by the mother are appropriate. They are the orders I intend to make.
37. I think at this stage, the circumstances demand that the Court take a cautious and conservative approach, until the issues in relation to the father’s mental health and issues concerning the long history of family violence alleged by the mother are resolved and the family report can, with a greater volume of material, more carefully consider what arrangements are appropriate and whether the initial fears of the Court child expert are warranted.
(d)The orders ultimately made by Judge Campbell were largely those made by Senior Judicial Registrar Norrington on 2 August 2023, save for the following additional orders:
(i)Permitting communication between the parents only in the event of an emergency;
(ii)Removal of the injunction restraining the father from discussing, commenting or exposing the children to his religious beliefs; and
(iii)For a psychiatric assessment of the father, subject to the father’s consent.
Within days of filing the Review Application, the father additionally filed an Application in a Proceeding on 24 August 2023. In relation to the same:
(a)The orders sought by the father were in the following terms “1. Stay of execution, dismissal of court proceedings, if not possible refer to mediation for parenting”.
(b)The father’s affidavit filed in support of the application was two pages, inclusive of an annexed letter addressed to persons unknown. The affidavit did not comply with r 2.14. The affidavit again lacked any evidence, but rather appeared a complaint by the father about the court process, the judgment and orders made 2 August 2023. The affidavit was otherwise an inchoate plea addressing a range of topics, including but not limited to “right to freedom of thought, conscience and religion or belief”.
(c)By orders made in chambers on 24 August 2023, the father’s Application in a Proceeding was listed for hearing before Senior Judicial Registrar Norrington by Microsoft Teams on 30 August 2023.
(d)The mother filed a Response on 29 August 2023, in which she sought that the application be summarily dismissed.
(e)At the hearing on 30 August 2023, the father’s application was dismissed.
The orders for time spending made 2 August 2023 ultimately were suspended by the supervision service provider in October 2023, and it is unclear as to whether this was as a result of the father refusing to comply with the supervised visits or because the service terminated the provision of the service as a result of the father’s poor behaviour. The children, however, continued to communicate with the father in accordance with the orders.
The proceedings next came before the Court, again by Microsoft Teams on 6 March 2024, pursuant to orders made in chambers on 24 January 2024.
In the intervening period:
(a)The ICL filed a number of subpoenas for the production of documents from each Region B Police, F Hospital, G Services, D Contact Service, Dr H of J Medical Centre, Dr K of L Medical Centre and Dr M of N Medical Centre.
(b)The Family Report process was undertaken by the parties and the children.

The Family Report was prepared by Family Consultant Mr P and is dated 19 January 2024. There were no observed interactions between the father and the children for the purposes of that assessment and report as the father was in hospital at the time of the scheduled interview. Of significance in the report, the report writer recorded:
(a)The father repeatedly spoke about the mother’s “different partners” throughout his interview with the Family Consultant and “perseverated” on the mother’s relationship status, which the report writer commented the father’s “seemingly patriarchal beliefs could be designed to reduce the mother’s self-worth and/or independence” (at [107]).
(b)The father also made inflammatory comments about the mother and her parenting of the children, which raised concerns in the mind of the report writer as to the father’s ability to support the children’s relationship with their mother and the likelihood that he will undermine the same.
(c)The father indicated that “long term” he was “happy” to care for the children “50 per cent”, however he also then proposed that initially he would spend time with one child each Saturday and the other child each Sunday or “worst case scenario [he] would take both” (at [80]). The report writer was concerned that the father had not turned his mind to the effect of this arrangement and in particular that it would result in the children not spending time together on weekends, and also increase the parents’ need to communicate with each other.
(d)The father denied the family violence allegations made by the mother, and instead suggested the mother had fabricated those allegations.
(e)The father “perceives that the mother is perpetrating systems abuse” (at [104]). With the report writer opining that if the mother’s accounts of family violence were accepted, the father’s actions during the litigation were “a form of systems abuse” in particular so far as denying the allegations, questioning the mother’s recollection of events, being critical of her relationship choices and making of vague allegations about the mother’s alcohol use and mental health being risk factors for the children (at [110]).
(f)Her concerns that the father appeared to have an “overly suspicious and/or paranoid lens” to his thinking (at [112]).
(g)During his interview the child X reported that during his phone calls with the father, the father tells him to ask the mother if they can spend time together. The report writer considered that by doing so, the father was placing the mother in a “difficult predicament” particularly because the children do not have any context around the patterns of family violence and the history of the parental relationship, which may result in the children perceiving the mother as “unnecessarily restricting time with their father” (at [106]).
(h)Considered that despite concerns about the father’s mental health, the father was not receptive to being psychiatrically assessed. As a result, the report writer was “not certain that the father would be open to any perspective which is not consistent with his own” (at [112]). With the report writer forming the view that the father is not willing to change his belief systems and his “rigid beliefs about how things should occur” and his “mistrust of others” appear to “transcend the need for him to spend time with the children” (at [117]), noting that the father did not take the opportunity to spend time with the children at a contact centre as he disputed the need for supervision.
Of significance, the report writer was of the view (at [113]):
…it would be extremely difficult for the mother to share decision making with the father. Despite the presence of a DVO and Court orders the father has does not appear to have demonstrated any capacity to be accountable for his behaviour, speak respectfully of the mother, cooperate with others or compromise on his rigid beliefs. The father is seeking to resolve the dispute independent of the Court though without any willingness to change his beliefs there is a low likelihood of any change to the imbalanced power dynamic between parents…
Ultimately the report writer concluded:
(a)That there should not be unsupervised time spending between the children and the father, particularly in light of the family violence concerns, and the report writer’s doubts as to whether the father would comply with orders or refrain from undermining the children’s relationship with the mother.
(b)That if the father did not make any behavioural changes, then the Court ought consider making orders that there be no time spending between the children and the father (at [121]).
(c)If, and only if, the father was willing to be assessed and engage in support for his mental health and spend supervised time with the children reliably, then after at least a year the Court could consider an updated report to review the parenting arrangements.
At the hearing on 6 March 2024, the proceedings were referred to a Compliance and Readiness Hearing on 18 April 2024, preparatory to listing the proceedings for trial. Importantly, orders were made requiring the parties to file certain documents seven days prior to that Compliance and Readiness Hearing, including:
(a)An amended Application or Response setting out the precise orders sought;
(b)An undertaking as to disclosure; and
(c)A Certificate of Readiness.
On 11 April 2024, and preparatory to the Compliance and Readiness Hearing, the mother filed an Amended Application for Final Orders together with her Certificate of Readiness and her Undertaking as to Disclosure. By her Amended Initiating Application, the mother sought the following orders:
(a)That the mother have sole parental responsibility for the children.
(b)The children live with her.
(c)The children spend no time with the father, or in the alternative, the children spend supervised time with the father at D Contact Service, subject to their availability. This was the first time that the mother sought that the children have no contact with the father and/or supervised time only.
(d)Telephone communication between the children and the father at 6.30 pm on Thursdays and on each of the children’s birthdays, the father’s birthday and on Father’s Day.
(e)Communication between the parties via email in relation to school fees or extra‑curricular activity fees only and via telephone in the event of an emergency only,
(f)The mother to be permitted to take the necessary steps to obtain passports for the children, apply for Country C citizenship for the children and change the names of the children.
(g)Permission for the mother to travel interstate with the children, with notice to the father as well as permission to travel to Country C with the children for up to six weeks per year – the mother previously sought travel to Country C for four weeks only and permission for either party to travel with the children.
(h)Injunctions and restraints consistent with those made by orders of Senior Judicial Registrar Norrington on 2 August 2023 and by Judge Campbell on 8 September 2023.
(i)Provision of the children’s school and medical documents to each of the parties, with the addition of a condition that any contact details of the mother shall be redacted if the documents are to be provided to the father.
The father did not comply with the orders for the filing of documents for the Compliance and Readiness hearing.
At the Compliance and Readiness hearing on 18 April 2024, orders were made transferring the proceedings to the Federal Circuit and Family Court of Australia, Division 1 (“Division 1”). In addition, a notation was made to the orders identifying that the provisions of s 102NA(2) were to apply to any final hearing in the proceedings. Whilst not identified in the notations, presumably this notation was made because the mandatory ban on cross examination applies in these proceedings given the existence of a family violence order naming the mother as the protected person and the father as the defendant, together with orders for the personal protection of the parties made in the proceedings by each Senior Judicial Registrar Norrington on 2 August 2023 and Judge Campbell on 8 September 2023.
On 7 May 2024, and for no apparent reason (and in breach of r 8.13), the father filed an affidavit. The affidavit again set out no meaningful evidence and was simply a vehicle for the father to complain about the Family Report that had been prepared. The father otherwise annexed various documents to the affidavit as follows:
(a)A list of suitable job opportunities recommended to the father based on psychological and medical test performance of the father, undated but due to expire on 13 May 2025.
(b)A Certificate of completion of the “Triple P Positive Parenting Program” dated early 2024.
(c)A notice of decision from the Child Support Agency dated 16 October 2023 regarding the mother’s application to change the Child Support Assessment.
(d)A number of emails from the father to the chambers of Judge Campbell dated 24 January 2024, which appears to be the father’s various complaints and challenges with respect to the Family Report.
On 8 May 2024, the matter came before Judicial Registrar Farantouris for the first hearing in Division 1. Orders were made that day listing the proceedings to a Case Management Hearing before me on a date to be fixed. Orders were also made requiring the parties to personally attend the Case Management Hearing, and for the filing of an outline seven days prior to the Case Management Hearing.
Shortly thereafter, and on 27 May 2024, the mother filed an Application in a Proceeding in which she sought orders to obtain passports for the children, and orders permitting the children’s travel to Country C in the September/October 2024 school holidays. In relation to that application:
(a)The father filed an affidavit on 13 June 2024 setting out the evidence he relied upon in relation to his opposition to the wife’s Application in a Proceeding. Again, much of the information contained in the father’s affidavit was inadmissible, irrelevant and of little weight, including assertions that travel to Country C was not safe and that the children might be abducted and forced into labour or child prostitution. The father also asserted that because the maternal grandparents have in the past travelled to Australia and communicate with the children there is no need for the children to travel to Country C.
(b)The father filed a Response and another affidavit on 19 June 2024. Again, that affidavit contained little admissible evidence and read more as a plea in opposition to the mother’s application.
(c)The Application in a Proceeding and Response were listed for hearing on 28 August 2024 pursuant to orders made 19 June 2024.
(d)The application was heard by Senior Judicial Registrar Norrington on 28 August 2024, and orders were made (with ex tempore reasons delivered) including orders:
(i)permitting the mother to obtain passports for the children (at her sole cost);
(ii)permitting the mother to travel outside of the Commonwealth of Australia for a period no greater than six weeks during the Christmas school holiday period in 2024/2025, provided the mother gives detailed notice to the father;
(iii)the children’s passports to be held by the City E Registry of the Court following the mother’s return from her travel;
(iv)a chambers hearing before Judicial Registrar Farantouris on 11 September 2024.
(e)The father filed a Review Application in relation to those orders on 30 August 2024.
(f)That Review Application was heard by Austin J on 11 November 2024, and it was dismissed (Szalai & Szalai [2024] FedCFamC1F 757).
(g)Significantly, the father did not attend the hearing to prosecute his Review Application.
On 11 September 2024, Judicial Registrar Farantouris made orders in chambers listing the Case Management Hearing to me on 19 September 2024. Orders were also made that day requiring the filing of outlines by each of the parties for that hearing by 18 September 2024.
The hearing on 19 September 2024 proceeded before me, in person in the City E Registry. The father was not in attendance. As recorded in the notations to the orders made that day, attempts were made by the ICL to contact the father but those attempts were unsuccessful.
The following Orders and Notations were made that day:
UPON NOTING:
A. There is no appearance by the father today and in relation to the same:
a. The Independent Children's Lawyer attempted to contact the father by telephone prior to the hearing commencing;
b. The court delayed coming onto the bench to give the father time to appear;
c. The matter was called outside of court and there was no appearance.
B.The Independent Children's Lawyer has raised concerns as to the father’s lack of meaningful participation in the proceedings and the ad hoc nature of his attendances and appearances.
C.Orders shall be made listing the matter for a face-to-face hearing and the father is on notice that if the father fails to attend the hearing, whether legally represented or not, the court will give consideration at the adjourned hearing to finalising the proceedings on the basis of the orders sought by the mother in her Amended Initiating Application filed 11 April 2024.
THE COURT ORDERS:
1.The proceedings be adjourned to 9.30am on 14 November 2024 with such hearing to take place on a face-to-face basis in the [City E] Registry.
The proceedings returned before me on 14 November 2024. The father again did not appear. The mother asked the Court to finalise the proceedings in the father’s absence given his non‑participation at the previous hearing, and at the Review Hearing before Austin J on 11 November 2024.
The Court was however unable to contemplate dealing with the matter as proposed by the mother, in circumstances where the ICL had not complied with her obligations pursuant to s68LA(5A) to meet with the children and give them an opportunity to express their views.
In the alternative, the Court was asked to strike out the father’s Response filed 11 April 2023, and whilst an adjournment was necessary, the mother asked that the Court give consideration at the adjourned hearing to finalising the proceedings.
Ex tempore reasons were given (Szalai & Szalai (No 2) [2024] FedFamC1F 805), and the following orders made:
1.That the father's Response for Final Orders filed on 12 April 2023 be struck out and dismissed.
2.That 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.That 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.
The adjourned hearing on 25 November 2024, is the subject of these reasons.
The father appeared at the hearing. As earlier identified, he made an oral application to reinstate his Response and for the proceedings to continue with his participation.
The father’s oral application was opposed by each the mother and the ICL. Instead, they each asked the Court to finalise the proceedings in terms of the orders sought by the mother. The mother proposed an alternate position if the Court was inclined to reinstate the father’s Response. That alternate position was to make orders requiring the father to do certain acts, and that in the event of his continued non-compliance, his Response again be struck out and the proceedings finalised in the absence of the father’s participation in the proceedings.
Each of the parties and the ICL were given the opportunity to make fulsome submissions.
The mother’s counsel asked the Court to have regard to the entire history of the litigation and the entire court file to fully comprehend the father’s poor conduct as a litigant in these proceedings. As can be seen from the factual recitation of the events which have taken place in these proceedings, that suggestion was taken up.
THELEGAL PRIINCIPLES
Chapter 10 of the Rules sets out the powers of the Court in relation to the finalisation of proceedings. Of particular relevance for present purposes are r 10.26 and r 10.27, which provide as follows:
10.26 When a party is in default
(1) For the purposes of rule 10.27, an applicant is in default if the applicant fails to:
(a)       comply with an order of the court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c)       produce a document as required by Division 6.2.2; or
(d) do any act required to be done by these Rules or the Family Law Regulations; or
(e)       prosecute the proceeding with due diligence.
(2) For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
(a) give an address for service before the time for the respondent to give an address has expired; or
(b)file a response before the time for the respondent to file a response has expired; or
(c)       comply with an order of the court in the proceeding; or
(d) file and serve a document required under these Rules; or
(e)       produce a document as required by Division 6.2.2; or
(f) do any act required to be done by these Rules or the Family Law Regulations; or
(g)       defend the proceeding with due diligence; or
(h) prosecute with due diligence any application the respondent has made in the proceeding.
10.27 Orders on default
(1)       If a party is in default, the court may do any of the following:
(a) order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party;
(b)        set aside a step taken or an order made;
(c) order that a step in the proceeding be taken within the time limited in the order;
(d)       order costs;
(e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f) make any order that is to take effect if the party does not take a step ordered by the court in the proceeding in the time limited in the order;
(g)       proceed on the non‑defaulting party’s evidence together with:
(i) if considered appropriate by the court—such evidence as the defaulting party has filed; and
(ii) such evidence as tendered during cross‑examination by the defaulting party; and
(iii) submissions by either party limited to the matters that are the subject of evidence;
(h) in exceptional circumstances—proceed on the non‑defaulting party’s evidence without hearing from the defaulting party.
(2) The court may make an order of the kind referred to in subrule (1), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
Importantly, r 10.13 provides:
10.13  Varying or setting aside orders
(1)      The court may at any time vary or set aside an order, if:
(a)       it was made in the absence of a party; or
(b)       it was obtained by fraud; or
(c)       it is interlocutory; or
(d)       it is an injunction or for the appointment of a receiver; or
(e)       it does not reflect the intention of the court; or
(f)       the party in whose favour it was made consents; or
(g)       there is a clerical mistake in the order; or
(h) there is an error arising in the order from an accidental slip or omission.
(Emphasis added).

In addition, s 69 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), provides:
69Power of the Federal Circuit and Family Court of Australia (Division 1) to give directions about practice and procedure in a civil proceeding
(1) The Federal Circuit and Family Court of Australia (Division 1) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of a civil proceeding, before the Court.
(2)       Without limiting subsection (1), a direction may:
(a)       require things to be done; or
(b) set time limits for the doing of anything, or the completion of any part of the proceeding; or
(c) limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or
(d)       provide for submissions to be made in writing; or
(e)       limit the length of submissions (whether written or oral); or
(f) waive or vary any provision of the Rules of Court in their application to the proceeding; or
(g)       revoke or vary an earlier direction.
(3) If a party fails to comply with a direction given by the Federal Circuit and Family Court of Australia (Division 1) or a Judge under subsection (1), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.
(4) In particular, the Federal Circuit and Family Court of Australia (Division 1) or Judge may do any of the following:
(a)       dismiss the proceeding in whole or in part;
(b)       strike out, amend or limit any part of a party’s claim or defence;
(c)       disallow or reject any evidence;
(d)       award costs against a party;
(e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.
(5) Subsections (3) and (4) do not affect any power that the Federal Circuit and Family Court of Australia (Division 1) or a Judge has apart from those subsections to deal with a party’s failure to comply with a direction.
(Note omitted)
In addition, in all proceedings before the Federal Circuit and Family Court of Australia, regard must be had by the parties and the court to:
(a)The “Overarching purpose” set out in s 67 of the FCFCOA Act, which provides:
(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), is to facilitate the just resolution of disputes:
(a)       according to law; and
(b)       as quickly, inexpensively and efficiently as possible.
Note 1: For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), see subsection (4).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)       the efficient disposal of the Court’s overall caseload;
(d)       the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
(Emphasis in original)
(b)This overarching purpose is reinforced by s 95 and s 96 of the Act, which provide:
95Overarching purpose of the family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a)       in a way that ensures the safety of families and children; and
(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration—in a way that promotes the best interests of the child; and
(c)       according to law; and
(d)       as quickly, inexpensively and efficiently as possible.
Note:     For family law practice and procedure provisions, see subsection (4).
(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:
(a)       the just determination of all such proceedings;
(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;
(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;
(d)       the disposal of all such proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The family law practice and procedure provisions are the following, so far as they apply in relation to proceedings under this Act:
(a) the applicable Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia or any other court.
96      Duty to act consistently with the overarching purpose
Duty of parties
(1) The parties to proceedings under this Act must conduct the proceedings (including negotiations for settlement of the dispute to which the proceedings relate) in a way that is consistent with the overarching purpose of the family law practice and procedure provisions.
Duty of lawyers
(2) A party’s lawyer must, in the conduct of proceedings under this Act on the party’s behalf (including in the conduct of negotiations for settlement of the dispute to which the proceedings relate):
(a) take account of the duty imposed on the party by subsection (1); and
(b)       assist the party to comply with the duty.
Estimate of costs
(3) In proceedings under this Act a court may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceedings or part of the proceedings; and
(b) the likely amount of costs that the party will have to pay in connection with the proceedings or part of the proceedings (including the costs that the lawyer will charge to the party).
Costs orders
(4) In exercising the discretion to award costs in proceedings under this Act, a court must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) Without limiting the exercise of that discretion, a court may order a party’s lawyer to bear costs personally.
(6)If a court orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.
(Emphasis in original)
(c)The “Principles for conducting child-related proceedings” set out in s 69ZN of the Act, which provides as follows:
Application of the principles
(1)       The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)       Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)       the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
As indicated in my ex tempore reasons published 14 November 2024, the father’s Response filed 12 April 2023 was struck out employing the power granted by r 10.27(2).
DISCUSSION
It is clear that the Court has the power pursuant to r 10.13(1)(a), to reinstate the father’s application by setting aside Order 1 made 14 November 2024.
In Barbey & Tuttle (2013) FLC 93-534, the Full Court of the Family Court considered an appeal dismissing an application to set aside orders made in default of the appearance of a party under the similar rule then in force (r 16.05 of the Family Law Rules 2004 (Cth)). There, the Court:
(a)Cited with approval the statement of principle that the exercise of discretion in applications of this nature whilst unfettered, must be exercised judicially (at [64]), going on to say:
90.The discretion to set aside orders made in default of a party’s appearance is unfettered. Regard should be given to the explanation for a failure to appear, the possibility of a different result, and prejudice to the other party (and how this may be addressed). His Honour did consider each of these matters, and did not err in his approach. He was not bound to give one matter more weight than another, and was correspondingly entitled to place significant weight on the wife’s failure to establish a reasonable explanation for her failure to appear or to participate in the proceedings.
(b)Citing with approval Kirby J in Allesch v Maunz (2000) 203 CLR 172, that the right to be heard (at [70]):
…
38.… it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive submissions of) the party potentially liable to be adversely affected. Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and the principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has accepted) the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(c)That “there must also be firmly kept in mind the High Court’s statements about the public interest in court efficiency in Aon Risk Services Ltd… [v Australian National University (2009) 239 CLR 175]” (at [71]).
During the hearing the father gave various explanations for his non-participation in the proceedings in recent times.
In the first instance the father asserted that he was not aware of the hearings as the orders had not been published on the court portal. However, when I indicated to the father that I did not accept this assertion because it was incorrect, and that in addition to the publication of orders, attempts had been made in advance of each hearing to communicate with him to engage him in the hearings before me on each 19 September 2024 and 14 November 2024 which had been unsuccessful, the father appeared to change his explanation. Thereafter the father appeared to implicitly acknowledge that he was aware of the hearings and proceeded to apologise to the Court for his non-attendance without proffering any explanation. In the end the Court was left with the distinct impression that the father was aware of the hearings, but he simply chose not to attend.
The father equally addressed his non-attendance at the Review hearing before Austin J, and indicated that he had mixed up the time and had attempted to attend the hearing after the allocated time.
As to the possibility of a different result, I accept that had the father appeared on 14 November 2024, it would have been unlikely that his Response would have been struck out.
I do however consider that there is significant prejudice to the mother in allowing the father to continue these proceedings. I am of that view because it is apparent from all of the matters that I have surmised in these reasons that, even giving the father some latitude as an unsophisticated self-represented litigant, it would appear that the father:
(a)Has variously failed to comply with orders of the Court. Those orders include not only the procedural orders of the Court, but also seemingly the orders for supervised time spending with the children first ordered in the proceedings on 2 August 2023. To that end, and while it is unclear as to exactly why supervised time spending is not occurring at the contact centre, it is apparent that the father himself has declined to participate in the time spending at the service as he did not consider there was a need for supervision (Family Report by dated 19 January 2024, paragraph 117). Additionally, since time spending stopped the father has not filed any application for time spending with the children.
(b)Has put limited relevant evidence before the Court throughout the almost two year duration of the proceedings. Nor has the father put evidence before the Court in accordance with the requirements in the rules, nor has it been before the Court in admissible form (problems which I note from the reasons delivered in relation to the DVO also plagued those proceedings).
(c)Has unsuccessfully challenged by way of Review application the authority of the Court each time a substantive parenting order was made in the proceedings which he did not agree with. Each of those proceedings have necessitated the mother engaging her solicitors and participating in the de novo hearing, achieving the identical result to that originally ordered by the Court.
In addition, and having been taken during the hearing to the reasons for judgment in the DVO proceedings, it would appear that when regard is had to the father’s conduct in these proceedings, which appears to mirror his conduct in the DVO proceedings, this Court, much as Judge Austin was concerned in those proceedings, must have some very significant apprehension that the father is using these proceedings to exert a level of control, intimidation and harassment of the mother and perpetrate further family violence upon her. Permitting him to do so through these proceedings in my view amounts to significant prejudice to the mother.
In coming to that conclusion as to the prejudice to the mother, I have had regard to both the “Overarching Purpose”, the Principles for conducting child related proceedings, and the relevant rules earlier identified. When doing so, and when having regard to the history of the litigation as earlier recited, I have significant concerns about:
(a)The delays that have plagued these proceedings arising from the father’s conduct in the litigation.
(b)The Court time and resources already allocated to these proceedings, with little progress being made towards finalising the proceedings, and the impact of the same not only on these parties, but also other litigants in need of the Court’s time and resources.
(c)The impact of the continuation of these proceedings on the mother and the children, particularly in light of the report writer’s opinion that these proceedings themselves are a continuation of the father’s family violence towards the mother.
I have also turned my mind to the likely outcome of these proceedings on the state of the present evidence (whilst untested) before the Court.
To that end, it would appear:
(a)The father would not be permitted to cross examine the mother at any final hearing in circumstances where the provisions in s 102NA(2) apply to any final hearing in the proceedings.
(b)To date the father appears not to have taken any steps to obtain a grant of funding pursuant to the Family Violence and Cross-Examination of Parties Scheme.
(c)It is an agreed position that the children and the father continue to communicate with each other in accordance with the orders made 8 September 2023.
(d)The father himself has done nothing to pursue orders for time spending with the children since the cessation of his time by the contact service over 12 months ago.
In addition, I have turned my mind as required when making any parenting orders to the best interests of the children. I have specifically had regard to those factors set out in s 60CC of the Act.
I am cognisant that in the long post separation period the mother has been largely solely responsible for the children’s needs. Implicit in the father’s position that the mother should at least continue to have care of the children for one half of the time moving forward, is an acknowledgement on his part that the mother is capable of and indeed that she has been meeting the children’s needs in every way (s 60CC(2)(d)).
So far as the children’s views are concerned (s 60CC(2)(b)), during their respective appointments for the Family Report published 23 January 2024:
(a)The child X, then aged 9 years, is variously recorded to have:
(i)Said he felt “safe” living with the mother (at [86]);
(ii)Described his phone calls with the father as “nice and fun” (at [87]);
(iii)Indicated that he would like to spend time with the father at a “park or somewhere”, but did not know if he would like to stay overnight with the father (at [88]); and
(iv)Indicated that time spending with the father at a contacts centre was “nice” and that he feels “safe” in the father’s care there (at [89]).
(b)The child Y, then aged 7 years, is variously recorded to have:
(i)Been resistant from separating from the mother for the purposes of her separate interview (at [91]);
(ii)Described feeling “safe” in the mother’s care (at [94]); and
(iii)Did not know if she would change anything about her life (at [97]) and described feeling “safe” in the father’s care and that she did not know what she likes or doesn’t like about time spending or communicating with the father (at [95]).

In addition, the Court has been advised by the ICL that she recently met with the children in accordance with her obligation to do so pursuant to s 68LA(5A). The ICL has advised that the children expressed to her a desire to continue in their current living arrangements, together with a desire to change their names as sought by the mother.
During the hearing the father made submissions effectively challenging the independence of the report writer, the matters recorded in the Family Report and the recommendations made. Of particular concern was the father’s repeated submission that he wished to cross-examine the children about their views and the information contained in the Family Report and as recently conveyed to the ICL. This submission was of great concern to the Court. It indicated a lack of child focus on the father’s part, the prioritisation of the father’s needs ahead of the children’s, and an inability on the father’s part to remove the children from conflict. Importantly, it indicates that the father has no insight into the children’s needs (particularly their emotional needs) and vulnerabilities. These matters are of some significant concern to the Court (s 60CC(2)(d)).
In the same vein, the cessation of the father’s supervised time spending, in part at least because the father appears unwilling to spend time in a supervised regime, again speaks to an inability on the father’s part to place the children’s needs ahead of his own (s 60CC(2)(d)).
Given the existence of the current DVO and its terms, and the earlier DVO made in 2015, there is a need to protect the mother from future harm and make orders that promote her safety (s 60CC(2)(a), s 60CC(2A)). I am satisfied that the orders proposed by the mother would certainly promote her safety, as they ensure that there is no prospect of the parties coming into contact with each other, but importantly there are strict limitations on the parties’ ability and need to communicate with one another.
During the hearing, the Court heard submissions and indeed as confirmed by the father, that the mother facilitates the children having telephone communication with the father each week. This indicates that the mother is willing and able, despite her lived experience of family violence, to promote the children’s relationship with the father; thus promoting their needs ahead of her own. Equally exemplary of the mother’s ability to meet and promote the children’s needs to facilitating a safe relationship with the father is her ability to facilitate time spending in the post separation period. I am accordingly satisfied that, provided she and the children are safe, the mother will promote a relationship between the children and the father (s 60CC(2)(a), (c) and (d)).
It is apparent from the Family Report (at [113]), by virtue of the existence of a “no-contact” DVO and the circumstances that led to the making of the DVO in early 2024, that the mother would find it difficult to liaise with the father if they were each to retain parental responsibility for the children (s 61C). I accordingly, consider that it is appropriate that the mother have sole parental responsibility and sole decision making for the children. As an adjunct to this, I consider it appropriate that the orders the mother seeks in relation to the children’s passports, international travel, Country C citizenship and change of name are ones about which she should have sole decision making, and in addition that the orders that she proposes in this regard are in the children’s best interest.
I note the orders made by Austin J, endorsing on Review the interlocutory orders made by Senior Judicial Registrar Norrington of 28 August 2024, for the provision of passports for the children and internation travel. I have had regard to the reasons of Austin J delivered 11 November 2024. I consider that those reasons are equally applicable in relation to the final orders now sought by the mother in relation to both issues, and they are endorsed.
For all of these reasons, it is apparent that if the father’s application was reinstated, on the present state of the evidence there is unlikely to be any significant difference to the parenting orders the Court would likely make at the conclusion of any final hearing. This factor speaks strongly against the reinstatement of the father’s Response.
Importantly, and whilst the order striking out the father’s Response is a procedural order and not a parenting order, it is not in the children’s best interest to have these proceedings continue. Not only would a continuation of the proceedings impact the mother, but significantly any continuation of the proceedings would greatly impact the children; particularly because the delays to a final hearing would likely mean that the children would need to participate in further appointments for an updated Family Report.
For all of these reasons, I decline to reinstate the father’s Response filed 12 April 2023.
I am also satisfied that it is appropriate and in the children’s best interests that the Court make the parenting orders sought by the mother in her Amended Initiating Application filed 11 April 2024, save and except that orders shall be made in accordance with Order 5 sought by the mother and not Order 4. I consider it appropriate to order supervised time spending between the father and the children. It is for the father to take up that time spending if he wishes to do so.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.
Associate:
Dated: 12 December 2024

File number(s):	DNC 45 of 2023
Judgment of:	KARI J
Date of judgment:	12 December 2024
Catchwords:	FAMILY LAW – CHILDREN – Where the father’s Response to Final orders was dismissed and struck out in circumstances where the Court formed the view that the father was not prosecuting the proceedings with due diligence –Where the father makes an oral application to have his Response reinstated – Where the father has failed to comply with procedural orders as well as orders for time spending at a contact centre – Apprehension that the father is using these proceedings to perpetrate further family violence upon the mother – Father’s oral application refused – Proceedings are finalised with orders made in terms of the mother’s Amended Initiating Application
Legislation:	Family Law Act (1975) ss 60CC, 61C, 68LA, 69ZN, 95, 96, 102NA Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 69 Family Law Rules 2004 (Cth) r 16.05 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 10, rr 2.14, 2.18, 8.13, 10.13, 10.26, 10.27, 15.15
Cases cited:	Allesch v Maunz (2000) 203 CLR 172 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Barbey & Tuttle (2013) FLC 93-534 Szalai & Szalai [2023] FedCFamC2F 977 Szalai & Szalai [2024] FedCFamC1F 757 Szalai & Szalai (No 2) [2024] FedFamC1F 805 Szalai & Szalai (No 2) [2024] FedCFamC2F 1709
Division:	Division 1 First Instance
Number of paragraphs:	86
Date of hearing:	25 November 2024
Place:	Adelaide via Webex
Counsel for the Applicant:	Mr Fernandez
Solicitor for the Applicant:	Duggan Family Lawyers
Solicitor for the Respondent:	Litigant in person
Solicitor for the Independent Children's Lawyer:	Ms Farmer of AFL Withnalls Lawyers

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:	12 DECEMBER 2024