Tarpinian & Fodor (No 3)
[2024] FedCFamC1F 212
•26 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarpinian & Fodor (No 3) [2024] FedCFamC1F 212
File number(s): ADC 4971 of 2018 Judgment of: KARI J Date of judgment: 26 March 2024 Catchwords: FAMILY LAW – EX TEMPORE REASONS – Where both parties are in default of trial direction orders – Where both parties’ applications are ultimately dismissed – Where neither party opposes the matter being finalised in terms of interim parenting orders in place since 2020 – Where the Court makes final orders. Legislation: Family Law Act 1975 (Cth) ss 61DA, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.6
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 26 March 2024 Place: Adelaide Applicant: Litigant in person Counsel for the Respondent: Ms Dichiera Solicitor for the Respondent: Adelaide Family Law Pty Ltd Counsel for the Independent Children's Lawyer: Mr Praolini Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 4971 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TARPINIAN
Applicant
AND: MS FODOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
26 MARCH 2024
THE COURT ORDERS:
1.That the Initiating Application filed by the father on 29 November 2018 and any Amended Application and the Response filed by the mother 8 April 2019 and any Amended Response be dismissed.
2.That all previous orders be discharged.
3.The child X (born 2015) live with the mother.
4.The child spend time with the father:
(a)During school time:
(i)Each week from the conclusion of school on Friday (or 3:00pm if a non- school day) until 6:30 pm Saturday.
(ii)Each Wednesday from 8:00 am until the commencement of school, to enable the father to take the child to B School, and from the conclusion of school until 6:30 pm.
(iii)On Public Holidays as may be agreed by the parties in writing.
(b)During school holidays each week from 8:00 am on Thursday to 6:30 pm on Saturday.
(c)On Father’s Day from 10.00 am to 5:00 pm.
(d)For the purpose of Easter, from 3:00 pm on Easter Friday until 6:30 pm on Saturday.
(e)On Christmas Day, from 8:00 am until 1:00 pm with the child on the condition that the child be in the care of the mother from 1:00 pm to 7:00 pm.
(f)On the child’s birthday, the child will spend time with both parties as follows:
(i)If such birthday falls on a school day:
1.From 7:30 am until the commencement of school with the father.
2.From the conclusion of school until 7:00 pm with the mother.
(ii)If such birthday falls on a non-school day:
1.From 8:00 am until 1:00 pm with the father.
2.From 1:00 pm until 7:00 pm with the mother.
(g)On the father’s birthday, from 11:00 am to 6:30 pm if a non-school day and from the conclusion of school to 7:00 pm if a school day.
(h)On the mother’s birthday, the mother shall spend time with the child from 11:00 am to 6:30 pm (if a non-school day) or from the conclusion of school until 7:00 pm (if a school day).
(i)At such further or other times as may be agreed between the parties in writing.
5.That the father be at liberty to communicate with the child by telephone each Monday at 6:30 pm for no longer than 30 minutes, with the father to initiate such communication.
6.That the mother be at liberty to communicate with the child by telephone each Friday during school holidays at 6:30 pm for no longer than 30 minutes, with the mother to initiate such communication.
7.That all handovers that do not occur at the child’s school occur at the mother’s home with the father to collect the child at the commencement of his time and return the child at conclusion of his time.
8.That the mother and father be at liberty to take the child on such holidays as agreed between the parties in writing and if such holidays infringes on the other party’s time with the child there be make up time as agreed by the parties in writing.
9.That the parents be restrained, and an injunction is hereby granted restraining each of them from making any appointments for the child to consult with any medical practitioner or health service provider (SAVE AND EXCEPT the child’s General Practitioner), without the consent of the other parent first and obtained in writing and subject to the child’s General Medical practitioner having first recommended such attendance or treatment.
10.That each of the parents do notify the other by SMS text message in the event that the child is taken to any medical practitioner for any reason and notify the other parent about the reason for such attendance.
11.That the father be restrained and an injunction is hereby granted restraining him from conducting any psychological tests on the child.
12.That the proceedings be dismissed as finalised and all future dates be vacated.
13.That the appointment of the Independent Children's Lawyer be discharged save and except as to any appeal.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Tarpinian & Fodor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These are parenting proceedings concerning the child, X, born 2015.
The proceedings have a very long and, to be perfectly blunt, tortured life before the Court. They were commenced by the father’s Application for Final Orders filed on 29 November 2018.
As these reasons will ultimately bear out, I propose to finalise the proceedings on the basis that, unopposed by each of the parties and the Independent Children's Lawyer (“ICL”), I shall strike out the parties' competing applications for final orders and proceed to finalise the proceedings in accordance with orders that I first made when I was a judge in what was then known as the Federal Circuit Court of Australia on 1 June 2020, together with some additional orders made by consent on 31 May 2019.
The circumstances in which I have indicated to the parties the potential that I would strike out the competing applications and finalise the matter, has arisen as a result of a range of matters, including non-compliance by both parties with orders for the preparation of trial together with the parties' respective failure to prosecute the proceedings with due diligence. The transcript of today’s hearing bears out all of the matters traversed with the parties during the course of the hearing that has led me to that view.
More importantly, I am of the view that it is in the child’s best interests that the war between these parents be brought to an end. It is for that reason that, in accordance with Part 10.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), I intend to strike out the parties' competing applications. As it turns out, having indicated to the parties that I was considering taking that course of action, I ultimately stood the matter down and have now been advised by each of the parties that they do not oppose the Court proceeding in that fashion. Equally, the parties agree, me having foreshadowed it to them, that the matter should be finalised in accordance with parenting orders that I first made on 1 June 2020, in particular paragraphs 1 to 6 of those orders. Again, the ICL and both the parties agree and promote that course of action.
The only topic that is the subject of dispute between the parties is whether or not the orders made on 31 May 2019 in relation to medical and specialist treatment for the child should be made mutually, or whether the orders should be made in the same terms as they were made in May of 2019, namely that they apply to the father solely. The orders made are as follows:
4.Until further order, the father be restrained, and an injunction is hereby granted restraining him, from making any appointments for the child to consult with any medical practitioner or health service provider without the mother’s consent first had and obtained in writing and subject to the child’s General Medical practitioner having first recommended such attendance or treatment.
5. That the mother do notify the father by SMS text message in the event that she takes the child to any medical practitioners for any reason and notify the father about the reason for such attendance.
6. Until further order the father be restrained and an injunction is hereby granted restraining him from conducting any psychological tests on the child.
The ICL promotes that the orders at paragraphs 4 and 5 of the orders made on 31 May 2019 be made mutual. The father has acceded to that suggestion by the ICL, and he does not oppose orders being made on that basis. The mother's position, however, is that the orders should be made in the same terms as they had been made in May 2019, and which have been in place and working well, she says, for a period of a little shy of four years' duration.
BACKGROUND
Before I come to dealing with the background and history of this matter, it is necessary for me to provide a summary of the litigation. As I indicated earlier, the proceedings were commenced by the father on 29 November 2018. They were momentarily dealt with by her Honour, Judge Mead (as she then was) at a first return hearing on 11 February 2019, before it ultimately came into my docket. Significantly, however, I was appointed to that court in March of 2019. I have just had my fifth anniversary of being appointed a judge. I am therefore acutely aware that these proceedings, have been before the Court for a period in excess of five years.
I will proceed to give some procedural history to the matter, but to say that the proceedings have been unabated in the volume of material filed by the parties and the acrimony that exists between them, would be a gross understatement.
In any event, ultimately, as I indicated on 31 May 2019, I made orders by consent which included the injunctions to which I have earlier referred. The proceedings thereafter were dealt with by me again in a meaningful way at a hearing on 1 June 2020. On that occasion, I made the following orders until further order:
1. That the child [X] born […] 2015 live with the mother.
2. The child spend time with the father:
a. During school time:
i. Each week from the conclusion of school on Friday or 3:00pm if a non-school day until 6.30pm Saturday.
ii. Each Wednesday from 8:00am until the commencement of school, to enable the father to take the child to [B School], and from the conclusion of school until 6:30pm.
iii. On Public Holidays as may be agreed by the parties in writing.
b. During school holidays each week from 8:00am Thursday to 6:30pm Saturday.
c. On Father’s Day from 10.00am to 5:00pm.
d. For the purpose of Easter from 3:00pm on Easter Friday until 6:30pm Saturday.
e. On Christmas Day, from 8:00am until 1:00pm with the child on the condition that the child be in the care of the mother from 1:00pm to 7:00pm.
f. On the child’s birthday the child will spend time with both parties as follows:-.
i. If such birthday falls on a school day:
1.From 7.30am until the commencement of school with the father.
2.From the conclusion of school to 7.00pm with the mother.
ii. If such birthday falls on a non-school day:
1. From 8:00am until 1:00pm with the father.
2. From 1:00pm to 7:00pm with the mother.
g. On the father’s birthday, from 11.00am to 6.30pm if a non-school day and from the conclusion of school to 7.00pm if a school day.
h. On the mother’s birthday, the mother shall spend time with the child from 11.00am to 6.30pm if a non-school day or from the conclusion of school to 7.00pm if a school day.
i. At such further or other times as may be agreed between the parties in writing.
3.That the father be at liberty to communicate with the child by telephone each Monday at 6:30pm for no longer than 30 minutes, with the father to initiate such communication.
4.That the mother be at liberty to communicate with the child by telephone each Friday during school holidays at 6:30pm for no longer than 30 minutes, with the mother to initiate such communication.
5. That all handovers that do not occur at the child’s school occur at the mother’s home with the father to collect the child at the commencement of his time and return the child at conclusion of his time.
6. That the mother and father be at liberty to take the child on such holidays as agreed between the parties in writing and if such holidays infringes on the other party’s time with the child there be make up time as agreed by the parties in writing.
Those orders have continued to apply for the child since that date.
Since that time there have been a range of things that have occurred in these proceedings which have prevented these proceedings from ultimately proceeding to trial. Those topics have included a failure on the father's part to comply with orders requiring him to attend upon a psychiatrist for assessment and a report to be filed. It has also included, what is undeniably, a war between the parties over the issuing of subpoenas and a war as to whether various documents be produced pursuant to subpoena, and/or whether they each be permitted to inspect and/or copy that material. There has also been a dispute between the parties as to the admissibility of a range of documents, including, but not limited to, recordings taken by each of them, unbeknown to the other of them.
That subpoena war has literally continued until the present moment. On 18 March 2024, a Senior Judicial Registrar made orders in relation to various categories of documents produced pursuant to subpoena, that had been issued by the mother and to which the father took objection. The Senior Judicial Registrar made extensive and detailed orders about the inspection and copying of that material. Almost immediately, those orders were the subject of a review application filed by the father, which has yet to be given a hearing date, but which I intended to deal with on the first day of trial.
Returning, however, to the inability of the Court to list the matter for trial. Several attempts were made by me when I was a judge of the Federal Circuit Court of Australia to give the matter a trial date. The matter survived two or three of such attempts unsuccessfully.
Ultimately, when I was elevated to the Federal Circuit and Family Court of Australia, Division 1, in October 2021, the proceedings were transferred to the docket of Judge Jenkins. At the first occasion before her Honour on 7 December 2021, her Honour gave the matter a three-day trial listing on 4, 5 and 6 April 2022. That we are still sitting here today means that it would be trite for me to record that the trial never proceeded on those days.
Ultimately, her Honour dealt with the matter again in February 2022, in advance of the April trial dates she had given, and her Honour made an order that the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) should apply. The effect of that order was that each of the parties were banned from personally cross-examining the other at any final hearing. At the time that her Honour made those orders, the father at least, was self-represented as he had been for some significant time, as was the mother. The mother had been represented earlier, but at the time that her Honour made those orders, she was unrepresented.
As a result of another side dispute, her Honour ultimately vacated the April 2022 trial listing at a hearing on 24 March 2022. On that occasion, her Honour made orders staying the proceedings pending the father's attendance upon a psychiatrist for assessment in accordance with the orders that I had earlier made, but which by that stage, had still not been complied with.
On 23 November 2022, the orders made by her Honour record that the father had complied with the orders made on 24 March 2022 which required him to undertake a psychiatric assessment, and accordingly, her Honour noted that the proceedings were no longer stayed and they were to proceed. The proceedings were thereafter transferred to the Federal Circuit and Family Court of Australia, Division 1.
To say that I was dismayed when the matter ultimately made its way back to my docket in 2023, again, would be a gross understatement. I was deeply troubled that the proceedings had not progressed in any meaningful way since I had first touched the file in early 2019. Despite that, however, it is clear to me from any cursory review of the Court file that over the life of the proceedings the parties have not been engaged in disputes as to the child’s parenting arrangements. Rather, a war has been waged between them about the conduct of this litigation, the documents to be available for any trial, and matters, frankly, of a procedural and ultimately, evidentiary nature.
While I will never know, it strikes me that the parties have lost sight of the main focus of this litigation, namely, the child and her best interests, and instead they have been more transfixed on waging a war against each other than promoting her best interests. What exemplifies that more than anything is that not once in the intervening period has the Court discharged or been asked to vary the orders that I first made on 1 June 2020 for the child’s living and time spending arrangements which is, frankly, staggering given the parties have been engaged in such all-out warfare over such an extended period of time.
In any event, when the matter did finally make its way back to me, I called the proceedings on for hearing and case management on 13 June 2023. At that time, I indicated to the parties that I was dismayed that the proceedings were on foot and I attempted to give the matter the earliest trial listing possible. I indicated to the parties that if I was able to do so and to list the matter at short notice, then I would. Unfortunately, such a listing did not eventuate and ultimately, the proceedings were given a trial date by me on a date to be fixed, pursuant to orders made on 29 June 2023.
The parties were advised of a trial date by orders made in chambers on 2 August 2023. On that day, I made orders giving the proceedings a trial date at the next earliest opportunity before me, being five days commencing 8 April 2024. Given today's date, I can indicate that that trial date is six-and-a-half working days away, given that in the intervening period there is the Easter long weekend.
Since that trial date was set, the matter has come before me on a number of times, in addition to coming before both a Judicial Registrar and a Senior Judicial Registrar a number of times. Importantly, however, on 19 December 2023, I made extensive trial directions to ensure that the matter was ready for trial.
As confirmed by the father today, I recall that at least at the hearing of 19 December 2023, I had a discussion with the father in relation to the application of s 102NA of the Act and what that would mean for him in pursuing his case. I also made it clear to the father that I would not entertain adjourning the trial in the event that he continued to be self-represented. On that day I directed my staff, and indeed they did as I directed, to provide the father with all of the relevant information necessary for him to make an application for funding, pursuant to the Family Violence and Cross- Examination of Parties Scheme.
DISCUSSION
Significantly, for present purposes, at the hearing on 19 December 2023, I was advised by the parties as to the witnesses they would be relying on. Those witnesses included the psychiatrists that each of the parties had instructed to prepare a report in accordance with those orders earlier referred to. For reasons which, frankly, I do not understand, and despite orders being made in December of 2023, the mother, I am told today, did not make arrangements until, at best, two business days ago to have her expert available, and further, I am advised today that her expert is not available to give evidence until May of 2024, being a date well after the trial. Equally, the father now tells the Court that his expert is also not able to attend the Court to give evidence during the trial, but he is unable to advise the Court nor pursue any oral application in relation to the arrangements that should be made for his expert to give evidence.
These circumstances are simply staggering, given the parties have known themselves since December of last year that they relied on each of those experts. That they could come before the Court less than a week before the trial and not be in a position to advise the Court whether their experts are available and the terms upon which they are to give their evidence is mind‑boggling in the context of all that has transpired in these proceedings.
Be that as it may, there are a number of other matters which are of more crucial importance to preventing the trial proceeding in six-and-a-half days' time. Importantly, a significant bar to that occurring is that neither of the parties have complied with orders to file their trial material. Those orders, as I said, were first made on 19 December 2023, and they required the parties to file their trial material by 8 March 2024. Neither of the parties have complied with that direction. I acknowledge that at the request of the parties, orders were made granting an extension of time for the parties to file their trial material. Those orders being made by a Judicial Registrar on 8 March 2024, which incidentally was also the day on which the evidence was due to be filed.
In any event, the parties were each granted an extension of time to file their trial material to 22 March 2024. We are now four calendar days beyond that extension, and as we sit here today, neither party has complied with that extension of time. I acknowledge that a request was sent to my chambers last week seeking a further extension of time however, no such request was granted.
The father today has been unable to indicate to the Court when he might be in a position to comply with the orders for the filing of his trial material. The mother, through her counsel, has indicated that she had intended filing her material by the date upon which she had requested an extension be granted, namely 28 March 2024. The father, additionally, has indicated to the Court today that he does not know whether he would be in a position for the trial to proceed in six-and-a-half days' time.
Ultimately, as the transcript from today’s hearing will bear out, a number of topics have been canvassed by the Court today. Today's hearing incidentally being listed in circumstances where the ICL had written to the Court to deal with the review application filed by the father in relation to orders made by the Senior Judicial Registrar on 18 March 2024, and ancillary matters to preserve the trial listing.
Unbeknown to the ICL and the parties, I was conscious that neither party had filed their trial material and today's hearing was given a listing yesterday to understand whether the trial was able to be preserved or not and if not, why not. To say that I have been unimpressed by the submissions put by the father and on behalf of the mother today, again, would be a gross understatement.
As the transcript will bear out, I am left in no doubt today that the parties, at least in terms of their trial preparation, have not complied with the orders of the Court. In relation to the mother, her non-compliance also extends to orders made on 4 March 2024 in relation to documents produced pursuant to subpoena to C Health Service.
Neither of the parents have complied with orders to ensure that the matter is ready to proceed to trial. As I said earlier, instead it appears that their most recent focus has been a war over subpoenas. I have lost count of the number of subpoenas that have been issued by each of the parties. The father tells me it was something like 26 or 27. Either way, that we are on the doorstep of trial and the parties are still engaged in a subpoena war is, again, staggering given the length of time that these proceedings have been before the Court and the fact that the parties have been aware of the trial date since 2 August 2023.
On the topic of the subpoena war, it strikes me that in relation to that topic and all of the other skirmishes that these parties have been engaged in since 2020, that at least from 1 June 2020, when I made parenting orders for the child, all of those topics have been side wars and disputes between them, and, in my view, lead me to the conclusion that the parties are more determined to wage a war and inflict harm on each other than at prioritising the child’s needs. It is for these reasons that in my view, they have not prosecuted these proceedings with respect to the child with due diligence and with her and her best interests as their prime focus.
However, regardless of whether the parties choose to prioritise the child’s interests and needs, the obligation of this Court is to do so, and the obligation of this Court is to make orders that are in the child’s best interests. It is for those reasons which I accept were given in summary by me earlier in the hearing today that I indicated to the parties that I was contemplating striking out their respective applications and finalising the proceedings in accordance with the orders that I first made in June 2020. Ultimately, it now appears that I am being invited by the parties and the ICL to do so by consent.
I now return to the one topic that is the subject of dispute today between the parties, and that is whether orders 4 and 5 made on 31 May 2019 be made mutual or not. I accept that I have heard limited submissions by the parties in relation to that topic and that I have limited evidence before me in relation to that topic. Be that as it may, each of the parties have had the opportunity to put submissions, understanding that they each have promoted to me that the proceedings should be finalised today.
Taking those matters into account, a number of things in relation to those orders are not lost on me. Firstly, those orders were made by the consent of the parties. Secondly, those orders have been in place for a significant period of time, a period of almost five years' duration, and there has been no application by either of the parties to discharge those orders.
It is the mother's position that those orders have been working relatively well since they were made and that they should not be disturbed. The father suggests that those orders should mutually apply to each of the parents so that they are each subjected to the same restrictions in relation to the child’s medical care and treatment. The ICL promotes that the orders be made mutual as and between the parties, but that there be a carve-out that they each not require the consent of the other parent for any appointments that the child is to attend upon her General Practitioner. The reasoning of the ICL is that to do so would be impractical for general medical treatment.
I am of the view that orders 4 and 5 of the orders made on 31 May 2019 should be orders that are mutually applicable to each of the parties. I am of that view, having heard the submissions and placing weight on the submissions made by the ICL. I accept that general medical treatment for the child is in a separate category and for example, if she suffers from sniffles, colds, flus, rashes, minor injuries etc, they are matters that each of the parents should be able to deal with without having to consult with the other.
Major medical treatment, however, is a different topic altogether. As the ICL rightly points out, in the absence of an order that deals with parental responsibility, the presumption in the Act applies, namely that the parties would share parental responsibility.[1] In my view, making orders 4 and 5 of the orders of 31 May 2019 enshrines that presumption into these arrangements. The parties will be required to consult with each other in relation to any significant medical, allied health and other treatment. It is for those reasons that I consider that paragraphs 4 and 5 should apply mutually to each of the parents.
[1] Family Law Act 1975 (Cth) s 61DA.
Paragraph 6 of the orders made on 31 May 2019 falls into a slightly different category and it does so because the father is a qualified psychologist, and it is an injunction preventing him from undertaking and carrying out any psychological testing upon the child. I therefore consider that order should only apply to the father.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 4 April 2024
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