VADER & DANTES

[2020] FamCA 775

FAMILY COURT OF AUSTRALIA

VADER & DANTES [2020] FamCA 775

FAMILY LAW – PRACTICE AND PROCEDURE – where orders were made for the father to attend upon the single expert witness for an updated report – where the father disagrees with the single expert’s proposed process of electronic meetings – where the father otherwise claims to have been unable to attend the scheduled appointment – where the father did not attend upon the expert – where there are a number of interim applications filed by the father which require expert evidence before determination – where the expert can accommodate future appointment dates – orders made for the father to attend upon the expert – orders made otherwise progressing the matter towards interim hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Vader

RESPONDENT: Mr Dantes

INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

FILE NUMBER: SYC 2265 of 2014

DATE DELIVERED: 7 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 7 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: Swaab Attorneys

THE RESPONDENT IN PERSON: Mr Jose

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rutkowska

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

Orders

1. The father take all necessary steps to make himself available to participate in interviews to be conducted by the single expert, Dr B either electronically or by any other means, with such interviews to take place by no later than 31 October 2020.

2. All extant interim applications be listed for interim hearing on 29 January 2021 at 10:00 am to be conducted by Microsoft Teams.

3. The mention listed on 8 September 2020 at 10:00 am before Senior Registrar Campbell be vacated.

4. Any further fees, inclusive of GST incurred in relation to the preparation of Dr B’s report after 7 September 2020 be paid in the first instance by the father.

5. On or before 4:00 pm on 22 January 2021 the solicitors for each party (or, if unrepresented, the parties themselves) forward to Chambers at ... and each other party a brief case outline containing:

   (a)       a list of the applications in a case which are pressed;

   (b)       the precise orders sought in each application;

   (c)       a list of the documents to be relied upon;

   (d)       if relevant, a brief chronology listing significant events;

   (e)       the issues in dispute;

   (f)        the main contentions (in light of the legislation);

   (g) any contention that the provisions of s 102NA of the Family Law Act 1975 (Cth) should apply in these proceedings to preclude the father cross-examining the mother; and

   (h)       any relevant case law.

AND IT IS DIRECTED THAT

1. Each party prepare a bundle of copies of documents not annexed to their Affidavits, proposed to be tendered at the interim hearing subject to objections, arranged chronologically, paginated and indexed. The bundle is to be filed electronically, in a text searchable PDF format, by no later than close of registry filing on 22 January 2021.

IT IS NOTED THAT

(a)       The Court requests that Dr B complete his expert report after 31 October 2020 irrespective of whether the father has or has not participated in any interviews scheduled to take place with him between 7 September 2020 and 31 October 2020, so that the report is available for purposes of the interim hearing on 29 January 2021.

(b) The mother and the Independent Children’s Lawyer contend that the provisions of s 102NA of the Family Law Act 1975 (Cth) should apply in these proceedings so that the father must be represented to preclude the possibility that he cross-examines the mother in relation to her allegations of violence.

(c)       There are also on foot parenting and property proceedings in the Federal Circuit Court of Australia between the father and Ms C, being proceedings SYC6702 of 2019 referred to by the father in his Affidavit filed in these proceedings on 5 September 2020.

(d)       At an appropriate point in the future, consideration may be given to making orders that proceedings SYC2265 of 2014 be heard together with proceedings SYC… of 2019, however, the father strongly resists such a course and at present, the Court presently has no view as to whether or not this would be appropriate.

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 Vader & Dantes 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 SYDNEY

FILE NUMBER: SYC 2265 of 2014

Ms Vader

Applicant

And

Mr Dantes

Respondent

EX TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. In proceedings SYC2265/2014 on 20 August 2020 orders were made for the respondent father to take the necessary steps to make himself available to participate in interviews by electronic means appointed by a single expert, Dr B, to take place on 24 August 2020.  The matter was then listed before me on the 7 September 2020 for mention. 

2. It was clear on 7 September 2020 that the father had not taken part in interviews with Dr B on 24 August 2020.  The father filed some affidavit evidence in which he contended that by reason of obligations to his aged parents, he was unable to attend the interviews with Dr B on 24 August 2020.  He has also raised on previous occasions, and again on 7 September 2020, assertions that the process being conducted by Dr B was deficient, but nonetheless, he was prepared to continue to participate in it. 

3. According to the father, Dr B offered the possibility of further dates for interviews either in late September or in October 2020. 

4. The father has filed a number of outstanding interim applications, some of which require consideration of whether the child the subject of the proceedings, Y, should either recommence spending time with him on some basis or should continue with regular Skype contact with her half-brother X in circumstances where the father may involve himself in those communications.  If the last circumstance arose, it would be contrary to orders that were made on 16 October 2019. 

5. I am satisfied that there are a number of outstanding interim matters which should be dealt with together on a single day in order to progress the matter towards final hearing.  I am satisfied in the circumstances of this case, having heard the parties, that it would be desirable for expert evidence prepared by Dr B to be available prior to the hearing and determination of the outstanding interim applications. 

6. For these reasons I make the orders and notations set out at the commencement of these reasons.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 7 September 2020.

Associate: 

Date:  18 September 2020