TEMIZ & TEMIZ

[2020] FamCA 120

FAMILY COURT OF AUSTRALIA

TEMIZ & TEMIZ [2020] FamCA 120

FAMILY LAW – CHILDREN – where leave was given for the matter to proceed on an undefended basis – where the father’s application for a further adjournment was denied – where the father was on notice that the matter would proceed undefended – where the proceedings have been unnecessarily protracted due to the father’s failure to engage in the proceedings and comply with orders for the preparation of the hearing – where procedural fairness is not a one way street and the mother is entitled to have her case heard in a just and timely manner – where there are serious allegations of family violence and the proceedings need to be brought to an end for the welfare of the child and mother – where the matter was transferred from the Federal Circuit Court of Australia.

Family Law Act 1975 (Cth) s102NA(2) s 69ZN
Family Law Rules 2004 (Cth) r 11.02(2)

APPLICANT: Mr Temiz

RESPONDENT: Ms Temiz

INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyer

FILE NUMBER: MLC 5675 of 2016

DATE DELIVERED: 3 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 3 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

COUNSEL FOR THE RESPONDENT: Ms McDonald

SOLICITOR FOR THE RESPONDENT: Bowlen Dunstan & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

IT IS ORDERED THAT

1. Until further order the father Mr Temiz born … 1989 and the mother Ms Temiz born … 1990 by themselves, their servants and/or agents, be and is hereby restrained from removing the child X born … 2014 (male) from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

2. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

IT IS FURTHER ORDERED THAT

1. All extant applications for final orders be otherwise adjourned for a date to be fixed for judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Temiz & Temiz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5675 of 2016

Mr Temiz

Applicant

And

Ms Temiz

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by the father in the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 21 June 2016. They were listed for final hearing in the Federal Circuit Court on 29 January 2019 and 13 June 2019. On 13 June 2019 Judge Curtain made orders transferring the matter to this Court. On 19 July 2019, I made orders setting the matter down for a final hearing before me commencing this day.

2. The proceedings in both courts have a most unsatisfactory history and have been in my view unnecessarily protracted, entirely due to the father’s failure to engage in the proceedings and comply with the orders made for the preparation of the matter for a final hearing.

Background

1. The father is 30 years of age. The mother raises concerns about the father’s mental health, which I will refer to later in these reasons. The mother is 29 years of age. The mother has a tumor which at this stage has not progressed. She is in receipt of Centrelink payments, she receives limited support from the father for the child of the marriage.

2. The father and the mother commenced cohabitation in mid-2012 and were married in 2012. They separated in 2015. There is one child of their marriage X (“the child”) born in 2014 (now 5 years of age). The mother also has a child of a previous relationship Y who is 10 years of age and lives with the mother.

History Of The Proceedings

1. On 11 October 2016, Judge Williams made orders that until further order the child live with the mother and spend time with the father for a period of not less than two hours once per week on a weekday. That time was to be supervised time.

2. On 9 March 2017, Judge Williams discharged her previous orders and made orders that the child live with the mother and spend specified time with the father. On 14 August 2017, her Honour suspended the child’s time with the father pending the father producing 2 clean supervised drug screens and made orders requiring the father to undergo random supervised drug screens within 24 hours of a request being made by the Independent Children’s Lawyer (“ICL”) and that he undergo a hair follicle test. The father did not and still has not undertaken supervised drug testing or a hair follicle test as requested by the ICL.

3. On 12 October 2017, Judge Williams made orders inter alia that the father attend upon a psychiatrist nominated by the ICL. Although the ICL made an appointment for the father to attend upon Dr F, he failed to do so. The father similarly failed to attend his appointment with Ms G the family consultant on 5 December 2017 for the purposes of the preparation of a family report. His failure to participate in these processes being one of the reasons why the final hearing was unable to proceed on 29 January 2019.

4. On that date Judge Williams made orders inter alia requiring the father to file and serve any Amended Application within 21 days together with any Affidavits upon which he sought to rely. She also ordered the father to provide proof of completion of a recent Men’s Behaviour Course and Anger Management Course and a list of his work schedule for the next 6 months. She otherwise listed the matter for final hearing on 29 January 2019. Her Honour also ordered that in the event that either party failed to comply, albeit in this case it is the father who has to comply, that the non-defaulting party be granted leave subject to part heard cases to have their application dealt with on an undefended basis.

5. On 2 April 2019, Judge Curtain ordered inter alia that the father and mother attend upon a family consultant for the preparation of an updated family report. Ms E in her report dated 5 June 2019, reported that the father arrived at 11.50am for his 11.00 am appointment by which time the family consultant had left, a further appointment could not be accommodated.

6. The father did not comply with the orders of Judge Williams for the filing of material and when the matter came on for hearing before Judge Curtain on 13 June 2019 and before transferring the matter to this Court, he made detailed orders inter alia requiring the father to file an Affidavit setting out the arrangements he proposed for the child’s care if the child were to spend time with him and a Financial Statement within 28 days of the date of the orders, that he undertake random supervised drug screens at the request of the ICL, that he attend for psychiatric assessment by a psychiatrist nominated by the ICL and that within 7 days he provide proof to the ICL of having completed a recent Men’s Behaviour Change Program and Anger Management Course. The father was ordered to pay the costs thrown away by reason of his oral application for an adjournment that day. His Honour also ordered that “…in the event that the father fails to comply with these orders in full, the mother shall have leave to proceed at the final hearing of these proceedings on an undefended basis.”  Other than filing an Amended Response in which he amended his application to seek orders that he have sole parental responsibility for the child, that the child live with him and spend supervised time with the mother, he has not complied with those orders.

7. When the matter was first listed for hearing before me on 19 July 2019, I listed the matter for final hearing and made orders that the mother be treated as the applicant for the purposes of filing trial Affidavits and at the final hearing, that the mother file and serve an Amended Application and her Affidavits of evidence in chief by 4.00pm on 25 October 2019 and that the father file and serve an Amended Response and his Affidavits of evidence in chief by 4.00pm on 15 November 2019. Those orders made it clear that the provisions of s 102NA (2) of the Family Law Act 1975 (Cth) (“the Act”) would apply to any cross-examination after 10 September 2010 and the father was advised to apply for aid pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

8. The matter was listed for mention before me on 28 November 2019 at the request of the ICL after the father failed to seek aid and had not filed his trial documents as ordered. The requirements of s102NA(2) of the Act were again explained to the father and on 7 January 2020 Victoria Legal Aid advised that the father had been granted aid and solicitors had been appointed to act on his behalf. Notwithstanding the appointment of solicitors to act on his behalf he has still not filed any Affidavit material.

Legal Principles

1. Rule 11.02(2) of the Family Law Rules 2004 (Cth) (“the Rules”) provides as follows:

   (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (a)  Dismiss all or part of the case;

   (b)  Set aside a step taken or an order made;

   (c)  Determine the case as if it were undefended;

   (d)  Make any of the orders mentioned in rule 11.01;

   (e)  Order costs;

   (f)  Prohibit the party from taking a further step in the case until the occurrence of a specified event; or

   (g) Make any other order the court considers necessary, having regard to the main purpose of these Rules.

2. I am also mindful of the requirements of Division 12A of the Act which sets out the principles in s 69ZN of the Act for conducting child related proceedings which are as follows:

   (3)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

   (4)That the court is to actively direct, control and manage the conduct of the proceedings.

   (5)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.

   (6)That as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties

   (7)That the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

3. I am satisfied that the father has not complied with the various orders made in these proceedings for the preparation of this matter for final hearing. However the father’s non-compliance and the effect of that non-compliance go way beyond simply a failure to comply with orders requiring him to file documents.

4. It is submitted by counsel for the mother and the ICL that the Court should have significant concerns about the father’s mental health. In support of that submission they rely upon, in the mother’s case, email correspondence sent by the father to the mother solicitor and for the ICL’s part email correspondence sent by the father to the ICL.  The mother refers in her Affidavit to an email forwarded to her solicitor by the father on 3 October 2019 and annexed others to her affidavit. The ICL tendered one email sent by the father to the ICL, however there are many more which could be tendered. Those emails are not just totally inappropriate, they raise significant concerns as to the mental health of a person who would send such an email. 

5. At the commencement of the proceedings counsel for the father submitted that he was instructed to seek an adjournment of the matter, that his client wanted to file Affidavit material and had some 13 witnesses from whom he wished to adduce evidence, including police officers and Department of Health and Human Services workers. He also submitted that his client wanted an order to be made for the preparation of an updated family report so that the Court would have the benefit of an impartial family report. He submitted that his client wanted the opportunity to be heard and that justice would be best served if his client were to be heard.

6. In the alternative, he sought leave to rely upon his client’s Affidavit filed 14 May 2019 and to adduce oral evidence from his client to update that evidence. 

7. Although as submitted by counsel for the father I am not bound by the order made by Judge Curtain that the mother be permitted to proceed on an undefended basis, there is no doubt that the father has been on notice as to the possibility, if not the likelihood of the Court proceeding on that basis. I accept as submitted by both counsel for the mother and the ICL that the father has had ample opportunity to participate in the proceedings and has chosen not to so in any meaningful way, notwithstanding that he was aware of the possibility of the matter being dealt with on an undefended basis. And yet he has continued to ignore the orders of the court. Procedural fairness is not a one way street and the mother is entitled to have her case heard, as required by the Rules, in a just and timely manner.

8. In my view, given the long history and complexities of this case the mother should not have to meet a case based upon the last minute oral evidence of the father in circumstances where he has failed to comply with the orders that were made for the filing of Affidavits. And in any event, even if I were to accede to the father’s application for an adjournment, given the history of this matter and my concerns about the father’s behaviour and mental health, I have no confidence notwithstanding that he now says he wishes to be heard that he would comply with any orders the Court might make if the Court were to grant him an adjournment. I am also mindful of the significant amount of court time and public resources that have been taken up by this case.

9. Of even more significance in this case in my view is the need to consider the welfare of the mother and the child, both by virtue of the impact of these proceedings upon the mother and indirectly upon the child and their impact upon the child directly. There are allegations of significant family violence in this case. The mother’s case is that every time she comes to court she fears for her safety and that at the very least she would face the prospect of coming into contact with the father. The child has not spent any time with the father since 14 August 2017 and he is dependent entirely upon the mother for his care. In these circumstances the mother’s wellbeing is essential to his wellbeing.

10. In all of the circumstances I am satisfied that the proceedings should be dealt with on an undefended basis and brought to a conclusion so that the mother and the child can move on with their lives.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 3 February 2020.

Associate:  

Date:  28 February 2020