Trendor & Trendor
[2022] FedCFamC1F 454
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Trendor & Trendor [2022] FedCFamC1F 454
File number(s): BRC 5389 of 2016 Judgment of: BAUMANN J Date of judgment: 1 April 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – leave granted for the filing of further written submissions Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 1 April 2022 Place: Brisbane Counsel for the Applicant: Litigant in person Solicitor for the Respondent: DA Family Lawyers ORDERS
BRC 5389 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TRENDOR
Applicant
AND: MS TRENDOR
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS:
1.That within seven (7) days, the Applicant husband shall file and serve further written submissions reply not exceeding fifteen (15) pages in length and without annexures.
2.That the Respondent wife be at liberty to file and serve written submissions in response within fourteen (14) days thereafter.
3.That the costs of today be reserved.
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 Trendor & Trendor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 4 November 2021, I made an Order at the conclusion of a long and complicated trial that had been heard over many tranches, as the parties are aware, for the filing of submissions. The Order is clear on its face, and required the Respondent wife/mother to file and serve written submissions in respect of both parenting and property matters by 4.00pm on 12 November 2021. The wife did so. Order 2 was that the Applicant husband/father shall file and serve written submissions in response by 4.00pm on 12 January 2022. The Court record reveals that submissions were filed on that day by the husband, and that those submissions, on their face, deal with both property and parenting issues, as well as some comments relating to the child support issues which, at some stage, had been an issue discussed between them.
The Orders then provided that the Respondent wife/mother file and serve any written submissions in reply by 4.00pm on 21 January 2022. The wife did so. They are short, not surprisingly, because they are in reply to the written submissions the husband filed 12 January 2022. The husband, who is unrepresented but has legal training, swore an affidavit on 15 February 2022 (being almost a month after the wife’s written submissions in reply had been filed) in support of an Application filed 17 February 2022, in which the husband seeks the following order.
1.Leave to serve submissions in response to Respondent’s submissions and response to submissions.
With this history, it is clear that the Court is confused by the fact that the husband complied with the specific order made by the Court, but now says that the submissions he filed on 12 January 2022 were not actually submissions in response, but rather, his own submissions. That is not what my Order required him to do. It is apparent, from reading those submissions, however, that they do not refer, curiously, to the very significant written submissions of the wife filed 12 November 2021. On their face, they seem to be standalone submissions. In those circumstances, one might have hoped and thought that there would be something in the affidavit sworn on 15 February 2022 that assisted me in understanding why, when given the opportunity to file written submissions in response, and when I accept those written submissions were sent to him on 12 November 2021 by email – the husband living in R City – he chose not to respond to them in the document filed in the Court, in accordance with the direction, on 12 January 2022.
Nothing in the affidavit of evidence relied upon for the Application before me today assists me in that regard, other than it is an attempt by the husband to identify what seems to be the need for him to respond to the submissions of the wife, him saying he did not have the opportunity to do so. He clearly had the opportunity to do so. That he did not do so is a matter that I need to consider in the circumstance of this case. The husband says to me, today, without evidence, that seemingly, he was able – despite his medical conditions, including surgery, which I was aware was pending on or about 4 November 2021, and which caused me to give him extra time to file his submissions, when Counsel for the wife sought that his submissions be filed more quickly than I ultimately ordered – why he was able to give time and effort to these submissions that he did file, and not a response.
Not surprisingly, Ms Awyzio, who appears on behalf of the wife today, opposes on quite orthodox grounds, any further opportunity being given to the husband to file written submissions. She adopts, to a large degree, the fact that directions having been made in the circumstance that it was, and the husband having filed his submissions, should not be given a further opportunity. Underlying that submission, no doubt, is the enormous cost both parties, but particularly the wife, who has had legal representation whilst the husband has not for much of the hearings before me where he has represented himself, incurred costs. Ms Awyzio says there has been no procedural unfairness to the husband.
The wife submits that the husband should be limited to the submissions he has made.
I have heard the competing submissions. I am, of course, concerned about the costs consequences of delaying the matter, and/or the wife having a need to respond to further submissions. As my judgment will ultimately reveal, this has been a very difficult trial to maintain momentum on, for a range of issues, which will be dealt with – not the least being the husband being unrepresented, appearing from R City, and where there has been, on many occasions, difficulties with technology and the flow of information, and allegations of interruptions to that. The Court’s desire is to write a judgment where both parties have had a fair opportunity to make submissions on the evidence.
I am troubled, I must say, that if I allow the husband to make further submissions, that not only will there be an inevitable delay in the judgment, but there will be further costs incurred by the wife in responding. I am also troubled reading the affidavit of the husband that he often says things which are, with great respect, simply offensive. That he would, in an affidavit, swear a statement about Counsel for the wife that:
The mental state of the writer of the submissions supplied to this honourable Court, in the light of the above, must promptly be called to question and all ‘assertions’ supplied thrown out.
That is a highly offensive statement against Counsel. There is a risk, if I allow the husband to file further written submissions, he will repeat such offensive statements. I want to bring this case to an end. I want to bring it to an end in circumstances where the parties felt they have had a fair opportunity to present their case, and that the judgment based on the evidence is transparent and sustainable. I have every confidence that the prospects of any judgment I make in this matter, being the subject of an appeal, is high from either party. However, like any trial judge, the core responsibility is to take the evidence and the submissions and do the best I can to provide the appropriate orders.
Those are the reasons for the Orders which appear at the commencement of these Reasons, allowing the husband to file further submissions.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 June 2022
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