Tilden & Tilden
[2022] FedCFamC1F 397
Federal Circuit and Family Court of Australia
(DIVISION 1)
Tilden & Tilden [2022] FedCFamC1F 397
File number(s): MLC 4526 of 2020 Judgment of: STRUM J Date of judgment: 1 June 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Leave to proceed undefended - Where the mother has filed an Application in a Proceeding to proceed undefended – Where the Independent Children’s Lawyer supports the mother’s Application – Where the father is self-represented and has not participated in the proceedings or filed any material – Where the mother is granted leave to proceed undefended following a final attempt at Family Dispute Resolution – Where the father has his rights under rule 10.13. Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 2.25, 10.13
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 26 May 2022 Place: Melbourne Counsel for the Applicant: Mr Radich Solicitor for the Applicant: Heinz Law Counsel for the Respondent: The Respondent did not appear Counsel for the Independent Children's Lawyer: Ms Mallett Solicitor for the Independent Children's Lawyer: Buscombe & Madden Lawyers ORDERS
MLC 4526 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TILDEN
Applicant
AND: MR TILDEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
STRUM J
DATE OF ORDER:
1 June 2022
THE COURT ORDERS THAT:
1.The Applicant Mother have leave to proceed on an undefended basis on 19 August 2022 at 10:00am.
2.Any application by the First Respondent Father or the Second Respondent to set aside these orders be filed and served within 28 days of this date, such application to be supported by affidavit material, any such applications be made returnable before Justice Strum on 19 August 2022 at 10:00am.
3.Not less than 72 hours prior to the undefended hearing, the Applicant Mother file all material on which she seeks to rely.
4.Not less than 48 hours prior to the undefended hearing, the Independent Children’s Lawyer file all material on which she seeks to rely.
5.The Applicant Mother and the Independent Children’s Lawyer file written submissions upon which they will rely at the undefended hearing contemporaneously with their material referred to in paragraphs 3 and 4.
6.The Applicant Mother’s Application in a Proceeding filed 28 April 2022 be otherwise dismissed.
7.The Father’s attendance at and participation in the Dispute Resolution Conference ordered on 7 April 2022 (which will take place on 11 August 2022) be in no way precluded by reason of paragraph 1 of these orders.
8.Personal service be effected upon the Respondent Father and Second Respondent of:
(a)the Mother’s Application in a Proceeding filed 28 April 2022;
(b)the Mother’s affidavit in support filed 28 April 2022;
(c)the orders made this day; and
(d)the Reasons for Judgment
within 7 days of receipt of the Reasons for Judgment.
and the court notes that:
A.The matter remains listed for defended hearing on 20 February 2023 and the trial date and trial directions made on 7 April 2022 have not been vacated / discharged as the Respondent Father or Second Respondent may make an application to set aside these orders which are made in their absence, pursuant to Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.
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 Tilden & Tilden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
I have before me an Application in a Proceeding filed on 11 May 2022 by the mother, who is the applicant in the substantive proceedings, for leave to proceed undefended. The proceedings are parenting proceedings involving the younger two children of the marriage, X, born in 2008, aged 14 years, and Y, born in 2009, aged 12 years (“the children”). These proceedings have been extant for some time and were preceded by earlier proceedings. The current proceedings were instituted by the mother by Initiating Application filed on 7 May 2020.
The respondent father filed (inter alia) a Response to Initiating Application on 19 June 2020. He was at that time legally represented. Nearly one year later, on 6 May 2021, his solicitors filed a Notice of Ceasing to Act in which they gave as his address for service by email, an email address being …@..... Since that date, it does not appear the father has taken any step in the proceeding whatsoever, save that he appeared before me on 7 April 2022 by video-link.
On 17 November 2021, the matter came before a judicial registrar of the Court, and orders were made placing the proceedings in a judicial docket, as well as ordering a Child Impact Report.
The matter next came before the court on 8 December 2021, by reason of an Application in a Proceeding filed by the mother on 1 December 2021. In that application, she sought orders against the respondent father, as well as against the parties' adult child, Mr B, born in 2000, who is aged 21 years (“the adult child”) for the return of the children to her. There is a fourth child, who is the eldest child of the relationship, Ms C, born in 1999, but who is not material to these proceedings.
In circumstances where the mother sought orders against a third party, the Registrar saw fit to join the adult child as the second respondent. He appeared in person on that occasion, as did the father, and orders were made against the father and the adult child requiring them to make the children available to return to reside with the mother and giving her sole parental responsibility. Neither after the father's solicitors filed their Notice of Ceasing to Act some seven months earlier, nor after the adult child was joined at the Court’s own motion as a second respondent, did either of them file a Notice of Address for Service. This is contrary to Rule 2.25 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). This places the Court and the other parties in the difficult position of not having an address for service, specifically in relation to the second respondent. That difficult position can be circumvented, in my view, given the discreet purpose for which the adult son was joined as the second respondent has now been dealt with. However, I shall nevertheless order that my orders this day and these reasons be personally served upon him.
On 9 February this year, I made directions in Chambers for a Case Management Hearing to be held on 7 April and ordered the respondent father to file an Amended Response to the mother’s Amended Initiating Application setting out with precision the orders he sought. He did not do so. Less than a week later, on 14 February this year, the Child Impact Report that had been ordered in November was released to the parties.
The matter returned before a Registrar on 1 March this year. Neither the father nor the adult child appeared, and the Registrar ordered that if the father failed to appear at the Case Management Hearing before me on 7 April, the mother had liberty to seek to proceed on an undefended basis. When the matter came before me on 7 April this year, the father appeared in person by video-link. The adult child did not appear at all. I listed the matter for final hearing, for five days, commencing on 20 February 2023 and made orders for the matter to be prepared for trial in time for that hearing date. The trial directions included the filing of trial affidavits, affidavits in reply and like trial documents, commencing at the end of this year. I also extended time for the father to file his Amended Response to Initiating Application to 26 April this year. Orders were also made pursuant to section 102NA of the Family Law Act 1975 (Cth) and the father was given the details (by my associates) of the duty lawyer service provided by Victoria Legal Aid for this purpose. Despite the extension of time provided to the father and the opportunities provided to him to engage legal representation (even if only partially), he has failed to file an Amended Response or any other material.
On 28 April this year, only two days after the extended filing deadline by the father, the mother filed an Application in a Proceeding seeking leave to proceed undefended, supported by an affidavit that traverses many of the background facts that I have already referred to in these brief reasons for judgment. When the father appeared before me by video-link on 7 April, I urged him to comply with the orders for the filing of an Amended Response to Initiating Application, in circumstances where it seems to be common ground between the mother, the Independent Children's Lawyer (“ICL”), on the basis of the Child Impact Report, that the two younger children are expressing a desire, if not a strong desire, to see the father, provided that the concerns shared by the mother and the ICL can be safely addressed.
In the course of exchanges with Counsel for the mother and for the ICL, I expressed the view that, to some extent, they and I are seeking to save the father from himself, and I do not resile from that observation. This is a difficult case, in circumstances where the children are expressing a wish to see the father but he is doing nothing to engage in these proceedings or otherwise with the mother and the ICL. There are some concerns about the father's ability to spend time with them in an environment that is safe and unthreatening for them. The mother's concerns, which are shared by the ICL, it would appear, could be readily addressed in ways that the Court often does in such cases. For reasons that are unclear, the father seems intent on not proceeding. I recall him telling me, on the previous occasion, that he could not even bring himself to open legal correspondence and documents that had been forwarded to him by email. That is a very unfortunate situation, but neither the Court nor the mother or the children or the ICL can be held hostage to that.
I propose to make orders granting leave to the mother to proceed on an undefended basis, but I do so comforted by the fact that Rule 10.13(1) of the Rules provides that the Court may at any time vary or set aside an order it was made in the absence of a party. Whilst the orders I propose to make will see this trial proceeding, all things being equal, to an undefended hearing, if the father remedies his default and seeks to set aside the orders, I will consider that application carefully and on its merits, and it might even be that the mother and/or the ICL might not object to such a course.
What might otherwise be the draconian nature of an undefended hearing is alleviated by the ability of the father, by the provisions of Rule 10.13, nevertheless to seek to participate. I stress that if he does so, he will need to have remedied his default and have a very good explanation in relation to it.
Pursuant to the orders that I made on 7 April 2022, a Dispute Resolution Conference has been ordered. Nothing in the orders I propose to make today for an undefended hearing will in any way limit the father’s attendance at the dispute resolution conference, and I will make that explicit in the orders.
I will order personal service upon the respondent father and the second respondent adult child of the mother's Application in a Proceeding, albeit that I have dealt with it, the mother’s affidavit in support, the orders made this day, and these reasons for judgment.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 1 June 2022
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