Tariq and Jacobson (No. 2)

[2015] FamCA 561

FAMILY COURT OF AUSTRALIA

TARIQ & JACOBSON (NO. 2) [2015] FamCA 561

FAMILY LAW – PARENTING – Mother’s application in a case for the matter to proceed on an undefended basis – Where the father has consistently failed to comply with orders and directions for the filing of material – Where the father appears in person and opposes the mother’s application in a case – Where the ICL supports the mother’s application in a case – Ordered that the matter proceed on an undefended basis on the first day of trial, with the remaining two days to be vacated – Costs reserved.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Allesch v Maunz (2000) 203 CLR 172

APPLICANT: Mr Tariq

RESPONDENT:	Ms Jacobson
INDEPENDENT CHILDREN’S LAWYER:	Ms Shila Batenburg

FILE NUMBER: BRC 10671 of 2012

DATE DELIVERED: 16 July 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 July 2015

REPRESENTATION

FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

NA Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr James Steel, Barry.Nilsson.Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

SBA Lawyers

Orders

IT IS ORDERED THAT:

1. Leave is given to the Mother to file by leave today an Amended Application in a Case.

2. Leave is given to the Independent Children’s Lawyer to tender the updated report of Mr C, Psychologist, dated 14 July 2015, which is admitted and marked Exhibit 1.

3. The trial is to proceed on an undefended basis on 14 September 2015, with the 15 and 16 September 2015 to be vacated.

4. The costs of and incidental of the Mother and the Independent Children’s Lawyer be reserved to 14 September 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tariq & Jacobson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10671 of 2012

Mr Tariq

Applicant

And

Ms Jacobson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the child, B born in 2008, who is thus now seven years of age. The parties to the proceedings are the child’s parents and an independent children’s lawyer (“ICL”) appointed to independently represent the child’s interests in the proceedings pursuant to s 68L of the Act.

2. The proceedings were commenced as long ago as 23 November 2012 when the father filed an initiating application in the (then) Federal Magistrates Court. 

3. The position reached today in circumstances where a trial was previously set down to take place on 14, 15 and 16 September 2015 is that the mother, by an amended application in a case filed by leave today, seeks to have the trial proceed on an undefended basis on 14 September 2015 with the other days of trial being vacated.  The father, who appears for himself today, opposes that application.  The ICL supports the application. 

4. It is necessary to trace something of the history of this matter to put in proper context the father’s non-compliance with numerous orders and directions made by this Court and by the Federal Circuit Court, in which the proceedings were initially commenced. 

5. Having filed his application, as referred to, on 23 November 2012, the father failed to attend on the first return date in that Court and the matter was adjourned to 20 March 2013.  Without detailing all of the relevant history following that, most relevantly, on 29 April 2014, after the matter and proceedings had been transferred to this Court, Registrar Stoneham made a series of orders and directions to advance the proceedings to a trial.

6. Specifically, trial directions were made on that date which included orders that the father was to file any amending application setting out the final orders he sought by 26 May 2014.  The father failed to comply with that order.  The father was also ordered to file and serve by no later than 4 August 2014, an affidavit setting out his evidence-in-chief and any affidavit setting out the evidence of any professional or lay witness that he proposed to call at a trial.  The father did not comply with that order.  The father was also ordered to file a list of documents upon which he intended to rely by 18 August 2014.  He did not comply with that order.  The father was ordered to advise the other parties of the witnesses he required for cross-examination.  Again, the father did not comply with that order.  He was ordered to file a case information document by 18 August 2014 and he did not comply with that order. 

7. Notably, Registrar Stoneham made a further order pursuant to r 11.02(2) of the Family Law Rules 2004 (Cth) that in the event the father failed to comply with the directions, the Court may proceed on an undefended basis and the other parties be at liberty to seek orders in default.

8. The father, despite any language difficulties, could have been in no doubt as early as April 2014 that if he failed to meet the requirements of the Court in terms of compliance with its orders and directions, that the matter may proceed on an undefended basis.

9. On 19 August 2014, the matter was again mentioned before Registrar Stoneham.  On that occasion the father appeared for himself.  Orders were made on that day for the matter to be listed to a callover of matters to be set down for trial which was to take place on 22 September 2014 for the allocation of trial dates.  It was directed that there be personal attendance of the parties at the callover.  An order was made that by 4.00 pm on 30 September 2014, the father file and serve any documents which he intended to rely upon at the trial in compliance with earlier trial directions.  The father, in fact, did not comply with any of the orders made on 19 August 2014.  The matter thus came to the callover before me on 22 September 2014 in circumstances where the father had not complied in the respects referred to. 

10. There was no appearance by the father at the callover or on his behalf, despite the earlier direction that the parties were to appear at the callover in person.  Correspondence was exchanged, or more accurately, the mother’s solicitors sought to correspond with the father in attempts to have him comply with orders and have him file material and moreover, putting the father on notice that because of his non-compliance, the mother would seek to proceed on an undefended basis at the final hearing of the matter.  Again, I interpolate here that the result of that correspondence, or body of correspondence, could have left the father in no doubt as to the prospects of the matter proceeding on an undefended basis if he failed to comply yet again with orders and directions for him to file material.

11. At the callover referred to, that is the callover on 22 September 2014, the trial of the matter was set down for a two day hearing to commence on 12 February 2015.  On 2 February 2015 the matter was mentioned before me in circumstances of the father’s enduring non-compliance with earlier orders and directions.  Application was then made on behalf of the mother that the matter be heard and determined on an undefended basis, taking into consideration the father’s failure to comply with any of the directions or orders of this Court as earlier referred to.  It was the mother’s application that the matter proceed on an undefended basis and that application was adjourned to the first day of trial on 12 February 2015.

12. On 12 February 2015 the matter was listed for final hearing for two days.  At that time, the father was represented by Mr Jamieson of counsel.  At the commencement of that hearing, an application was made on behalf of the father for the adjournment of the trial.  That application was advanced on the basis that the father sought to be provided with an opportunity, it might be said, a final opportunity, to provide further affidavit material, or rather it might more accurately be stated, some material in accordance with earlier orders made, in particular, those of 29 April 2014 and 19 August 2014.  An updated family report from the family consultant, Mr C, was received on the morning of that trial.

13. On that day I made orders acceding to the father’s application for the trial to be adjourned and to be set down for three days commencing 14 September 2015.  Importantly though, further orders were made in view of the father’s previous non-compliance, including orders that by 4.00 pm on 19 June 2015 the father was to file and serve any further material that he intended to rely upon at the trial of these proceedings.  That has not occurred.  Secondly, an order was made that in the event that the father failed to file any material pursuant to the earlier order mentioned, that the mother was at liberty to seek to have the matter re-listed prior to the September trial for the Court to consider making default orders.

14. There were also orders made that within 90 days of that date, the father pay the costs thrown away by each of the mother and the ICL as a result of the adjournment.  Those costs were fixed and in the event, in what seems to be an isolated instance of compliance with orders made by the Court, the father has paid those costs. 

15. It was in circumstances of the father’s failure to file material by 19 June 2015 that this application was filed.  In the result, the application pursued by the mother is not that the hearing proceed today on an undefended basis, but that the first day of trial on 14 September 2015 should be the opportunity for the matter to proceed on an undefended basis with the other two days of trial being vacated.  That application is supported by the ICL. 

16. Rule 11.02(2) sets out what may happen in the event that a party does not comply with the rules or a procedural order of the kinds I earlier referred to.  That rule refers to the fact that the Court may dismiss the case or determine the case as if it were undefended, amongst other things.  It also provides that the Court may prohibit the party from taking a further step until the occurrence of a specified event. 

17. The rules of procedural fairness and natural justice need to be considered before any matter is determined on an undefended basis.  Within the rule of procedural fairness lies the indispensable requirement of the Court system of justice that a party affected by a decision have the opportunity to be heard.

18. As highlighted by Kirby J in Allesch v Maunz (2000) 203 CLR 172, where a person’s interests may be adversely affected by a Court’s decision, that person must be afforded an opportunity to place before the Court material information and submissions before the decision is made. However, as was emphasised by Kirby J, it is the opportunity to be heard which is essential to procedural fairness, not that the Court must receive evidence or submissions on behalf of a party before making orders. The principle does not require the decision-maker to actually hear the party. As Kirby J stated in Allesch v Maunz (2000)

    
    

    203 CLR 172 at [38]:

    …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 principle require.

    (Footnotes omitted)

19. In this case, it is abundantly clear that the father has consistently over a lengthy period failed to comply with numerous orders and directions for the filing of material.  It was again emphasised to the father at the pre-trial mention of the matter on 2 February 2015 and in particular, when the trial was adjourned to the September dates, that there was every prospect of any further failure of compliance resulting in the matter proceeding on an undefended basis yet the father’s contumelious failures to comply have continued. 

20. In this case, Exhibit 1, being the updated family report, raises some troubling issues, if they be correct, about the father’s attempts to control the mother, rather than being focused on the best interests of his son.  The obvious concern about that in the present context is that the father may be using the current proceedings as a method of control and delay, in terms of his non-compliance.  Had the father complied with earlier orders and directions, there could have been a trial of these proceedings long ago and a conclusion brought to them. 

21. Plainly, where the best interests of a child are the paramount consideration of the Court that is an important feature of why parties or parents need to comply with orders and directions so that finalisation can be achieved. 

22. In my judgment for these reasons the mother’s application should be granted, that is, that the trial shall proceed on 14 September 2015 on an undefended basis.

23. As I have explained to the father, what that means is that he will have an opportunity to be heard on that date by way of submissions.  The mother and the ICL will be entitled to rely upon any material upon which they seek to rely for the purpose of the final trial, or at least read the material they seek to rely upon for the purpose of the final trial.  If there be any issues as between the mother and the ICL, those parties will be entitled to cross-examine in the usual way the other party’s witnesses. 

24. However, as I have explained to the father, from his perspective, proceeding on an undefended basis means that he will be confined to making submissions to the Court at the conclusion of any evidence received by the Court, in terms of the orders he says would be in the best interests of his son.

25. I will reserve the costs of the mother and the ICL to the hearing on 14 September 2015. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 July 2015.

Associate:

Date: 20 July 2015