TIRADO & RICHMOND

[2020] FamCA 199

FAMILY COURT OF AUSTRALIA

TIRADO & RICHMOND [2020] FamCA 199

FAMILY LAW – PRACTICE AND PROCEDURE – application for expedition – where the mother seeks her application to set aside the binding financial agreement be expedited – allegations of family violence – mother’s delay and non-compliance of directions – application refused.

FAMILY LAW – COSTS – application for costs dismissed

Family Law Act 1975 (Cth) s 117

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Tirado

RESPONDENT: Mr Richmond

INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

FILE NUMBER: CAC 695 of 2018

DATE DELIVERED: 26 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 26 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: KJB Law

SOLICITOR FOR THE RESPONDENT: Evans Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mistry

Orders

1. The Mother’s Application in a Case for expedition is dismissed.

2. I dismiss the order for costs.

3. The proceedings are adjourned for further directions to be given in respect of the application to set aside the Binding Financial Agreement to 10 am on 9 July 2020. 

4. The Husband is to file and serve a response to the particulars that have been filed by the Wife in respect of the Binding Financial Agreement and is to treat those particulars as though they were pleadings in the case in doing so by 4 pm on 17 June 2020.

5. In the event that the Husband’s solicitors have been unable to secure for the preparation of the case the relevant solicitor’s file for the Wife by 4 pm on 6 May 2020, they are to seek an urgent relisting of the matter.

6. In the event that it becomes apparent to any party that significant barriers have emerged to the proper preparation of the case in advance of the matter coming back to me for directions then those parties are obliged to seek an urgent relisting of the matter such as to deal with such.

IT IS NOTED THAT

1. In the event that there is such a stumbling block to the preparation of the matter and a party fails to seek a relisting sufficiently in advance of the allocated directions date than that party is in peril of a costs award being made against them in respect of the directions date.

IT IS FURTHER ORDERED THAT

1. The parties are at liberty to issue such subpoenas as are necessary to reasonably prepare the Binding Financial Agreement matter for trial.

2. The parties are to be in a position to advise the Court as to the appropriate steps to ready the children's matter for trial should trial dates become available when they come before the Court on 9 July 2020.

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 Tirado & Richmond 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 CANBERRA

FILE NUMBER: CAC 695 of 2018

Ms Tirado

Applicant

And

Mr Richmond

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for expedition by Ms Tirado.  The history of the matter is that the proceedings were initiated by the Father in April 2018 in the Federal Circuit Court.  The matter proceeded in the Federal Circuit Court until early in 2019 when Judge Tonkin indicated that a trial date would be allocated but did not indicate when that trial date would be allocated, or what the trial date would be.  The matter continued in the Federal Circuit Court until mid-2019 when it came before Judge Harman.  An application was made before Judge Harman by the Father for transfer of the matter to the Family Court of Australia.  That application was refused and Judge Harman made orders which accorded the matter some level of expedition, although in a qualified manner.  That is Judge Harman said due to the significant allegations of family violence in the proceedings and the application for relocation that such expedition as is possible in light of other pressing matters should be given to the proceedings.  It is not clear whether that acted as an expedition order or a partial expedition order.  That order made by Judge Harman was within the context of a broader order that looked for the allocation of a trial date on the publication of the 2020 diary of the court.  The matter was then transferred by another judge of the Federal Circuit Court in chambers to the Family Court of Australia. 

2. The matter is a matter of some complexity and it may be observed that it now appears to be in the appropriate court.  It has not received any formal loss of priority in its transfer to the Family Court of Australia as, given my explanation to the parties in this matter, in the normal course of events priority would be assigned to the matter based on its original filing date of April 2018, notwithstanding that it has only now been transferred to the Family Court of Australia. 

3. It has been put for the Mother that one basis for expedition is that she had a reasonable expectation that the matter would be reached in the Federal Circuit Court in 2020.  The matter may or may not have received a trial date in 2020 if it remained in the Federal Circuit Court and even if it had received a trial date, it may or may not have been reached on that trial date. 

4. A general expectation is not a sufficient justification to warrant the matter being given expedition in this Court. 

5. The Mother also raises the fact that she proposes to relocate to Queensland.  In the context of the nature of the cases that are before the Family Court, that is not a matter that warrants expedition.

6. The most significant matter to my mind in relation to the expedition are the extreme allegations that each party makes against the other.  Each party alleges family violence.  The allegations made by the Mother are of extreme acts of family violence on the part of the Father.  He appears to accept that there has been some family violence within the relationship, but counters by making extreme allegations against the Mother as to her own self harm and by implication, her attempts to manipulate or control him by virtue of acts of self-harm.

7. Those are matters which speak most strongly to the case for expedition.  However, the position of the Independent Children’s Lawyer, upon which I place some reliance, is to observe that in large part those allegations of family violence which remain unresolved have been managed by the interim orders put in place by Judge Tonkin.  That is, the Court is not faced with a litany of serious ongoing allegations between the parties since her Honour put into place orders to regulate their position in relation to their child.

8. A matter which tells strongly against expedition is the tardy manner of the prosecution of her case by the Mother.  There are two aspects of that.  The first relates to her significant delay and non-compliance with previous directions given in the Federal Circuit Court in relation to her application to set aside a Binding Financial Agreement. As was identified, her filing of material in respect of such occurred almost a year after the time had expired for her to do so on the directions given in the Federal Circuit Court.  It may also be observed that the proceedings have continued for the best part of two years before the application for expedition had been made.

9. Those matters tell against expedition. 

10. Finally, there is a further matter that is outside the control of the parties and outside the control of the Court, which means that caution should be exercised before expedition be allocated to a particular case and that is the current uncertainty of listing capacity of the Court and the manner in which it will be able to assign priorities for matters.  That occurs in the context of the current COVID-19 crisis, which it may be anticipated will impact on the Court's ability to hear matters and is likely to also impact on the priorities of the Court will need to give matters when there is a capacity to hear matters.

11. On balance, in this discretionary matter, the matters tell against an order for expedition and the application for expedition is refused.

Application for costs

1. An application has been made for costs in a context of the Mother’s unsuccessful application for expedition.  The matter was listed today for two purposes, one being expedition and one being the giving of directions in relation to the outstanding Binding Financial Agreement proceedings that have been conducted by the parties.

2. The general rule for costs is set out at s 117 of the Family Law Act 1975, which is that each party of the proceedings under this Act shall bear his or her own costs.  That remains the case unless justifying circumstances as set out in subsection 2A of that provision are made out, such as for the Court to exercise its discretion to depart from that position and award costs.[1] 

   [1] See Penfold & Penfold, the decision of the High Court in this matter

3. There are some matters which point towards the making of a costs award.  The Mother has been wholly unsuccessful and the Mother by her conduct in respect of filing an affidavit other than that which she had been directed to be filed has increased the costs of this particular matter.  However, there is also a matter that tells against that and that is that the Mother is supporting herself by means of Centrelink payments.

4. On balance, those matters mean that the general rule should not be departed from in this instance.  I dismiss the order for costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 March 2020.

Associate:

Date:  30 March 2020