Vader & Dantes (No. 2)
[2021] FamCA 205
•29 January 2021
FAMILY COURT OF AUSTRALIA
Vader & Dantes (No. 2) [2021] FamCA 205
File number(s): SYC 2265 of 2014 Judgment of: HARPER J Date of judgment: 29 January 2021 Catchwords: FAMILY LAW – PARENTING – Where the proceedings have been ongoing since 2014 – Where there are a number of interim applications on foot – Where the father seeks to rely on a large quantity of material in relation to those interim applications – Where the mother and independent children’s lawyer agree that there would be benefit in the matter proceeding to final hearing rather than the time and costs involved in hearing the interim applications – Orders made progressing the matter to callover for the allocation of final hearing dates as soon as can be accommodated
FAMILY LAW – PROCEDURE – Where both the mother and father make allegations of family violence – Where the father is a self-represented litigant – Where it is not clear is a personal protection injunction has been made – Where it is in any event appropriate to make orders in accordance with s 102NA(2) – Orders made.
Legislation: Family Law Act 1975 (Cth) ss 68B, 102NA, 114 Cases cited: Salah & Salah (2016) FLC 93-713 Number of paragraphs: 19 Date of hearing: 29 January 2021 Place: Sydney Counsel for the Applicant: Mr Campton SC Solicitor for the Independent Children's Lawyer: Ms Rutkowska ORDERS
SYC 2265 of 2014 BETWEEN: MS VADER
Applicant
AND: MR DANTES
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
29 JANUARY 2021
THE COURT ORDERS THAT:
1.The Applications in a Case filed by the Respondent Father on 5 February 2020, 3 June 2020, 29 July 2020, 13 August 2020, 17 August 2020, 5 September 2020, and any other outstanding interlocutory Applications be dismissed.
IT IS NOTED THAT:
A.The dismissal of the Respondent Father's Application in a Case of 3 June 2020 has the result that his Application for interim parenting orders will not be dealt with prior to final hearing.
IT IS ORDERED THAT:
2.The proceedings be stood over to 11 March 2021 at 11.00 am for the purpose of callover.
IT IS NOTED THAT:
A.Standard procedural orders for the preparation of callover will be notified to the parties in due course.
B.The callover on 11 March 2021 will take place in person in court unless otherwise advised by the Court prior to callover and unless a party is granted leave to appear via Microsoft Teams.
IT IS ORDERED THAT:
3.Leave be granted to the parties to provide to any of their current treating health professionals a copy of the reports of Dr B, noting that this leave does not extend to such report being provided to Mr D, the treating psychotherapist of the child the subject of the proceedings.
IT IS NOTED THAT:
D.The question of whether the reports of Dr B are to be provided to Mr D may be revisited at a future date.
IT IS ORDERED THAT:
4.The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to cross-examination occurring in these proceedings, subject to any further order of the Court.
5.All questions of costs of the parties in the proceedings to date 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These proceedings concern the child Y born in 2013. Y is currently eight years of age. Proceedings in respect of her were first commenced in 2014. Consequently, Y has been the subject of litigation for almost her entire life. The respondent father has filed a number of interim applications in a case which have had a chequered history through the processes of the Court. However, several points are important.
The first is that the matter was the subject of an order for expedition on 3 December 2019.
The second is that the father has filed, among his interim applications, an application for contact between him and the child to be resumed as soon as possible. The many applications of an interim nature filed by the father were listed on 29 January 2021. One that occasion, it was put to the father that the preferable course would be not to engage in an interim hearing, but to put the matter into a callover so that the proceedings could be listed for final hearing as soon as possible, and likely in the second half of 2021. The father strongly resisted this course.
However, in the course of making submissions, the following aspects of any potential interim hearing were made clear.
There was, without question, a large volume of material upon which the father proposed to rely for interim purposes. That material contained many cross-allegations in a nature of family violence, which would need to be closely considered. The entire passage of interactions between the parents over some seven years would need to be the subject of evidence and the true situation could only be revealed by extensive line by line cross-examination of witnesses.
The nature of an interim hearing is well-known. At an interim hearing, factual findings, especially in relation to disputed allegations, can only be made in narrow circumstances and the Full Court of the Family Court of Australia has made clear that they should be made only with great circumspection: Salah & Salah (2016) FLC 93-713; (2016) 56 Fam LR 299; [2016] FamCAFC 100.
I have some sympathy for the father's position that he wishes to have an interim ventilation of his application to spend time with the child. However, it is essential for the Court to progress the matter to finality in the best interests of the child.
The nature of the material upon which the father proposes to rely for the purpose of both interim and final orders is clearly such that it is inherently inappropriate to be dealt with satisfactorily at an interim hearing.
It is the position of the mother and the independent children's lawyer that, rather than time being taken with an interim hearing which would be followed by a lengthy judgment some months later, it is far preferable in the interests of the child for the matter to be given final hearing dates as soon as possible and the parties concentrate their efforts on preparing for a final hearing.
I am persuaded that is the correct approach in the circumstances of this case, bearing in mind what is clearly going to be the nature of the evidence relied upon either at an interim stage or a final hearing by the father.
In addition to those considerations, there is the fact that a single expert Dr B has produced an Updated Expert Report which was released to the parties only on 18 January 2021. I point out that Dr B has produced earlier expert reports in these proceedings in relation to the child.
The father contends that a final hearing would take no less than 15 days, while the mother and the independent children's lawyer contend that seven days would be adequate to deal with the evidence and issues.
Bearing in mind the numerous claims upon judicial time in hundreds of matters which currently have open files in the Family Court of Australia, the recent issuing of the expert report of Dr B, the order for an expedited final hearing and the likely length of the trial, I am satisfied that the preferable course is not for an interim hearing to take place, but for the proceedings to be given a callover date in the near future at which it can be allocated final hearing dates, likely in the second half of 2021.
There remain some additional issues about which an expression of view should be given. In the course of submissions, the father identified his Application in a Case filed on 3 June 2020 as the most important interim application, it being the one which seeks orders, the effect of which would be for the child to recommence spending time with him, noting that the child has not spend time with the father for a considerable period. This is a matter which I have taken into account in weighing up whether an interim hearing would be in the best interests of the child, but it does not persuade me to a different conclusion to the one I have already expressed.
The balance of the interim applications which the father has filed raise a range of different matters, but the father indicated in the course of submissions that he was not inclined to press those with any great vigour. It was ultimately not entirely clear whether he agreed they should be withdrawn or whether he wished to keep them on foot. It is my view that the number of interim applications which remain unresolved have the potential to continue to complicate the circumstances of these proceedings, which cry out for some refinement and streamlining for the purpose of progression to final hearing.
Accordingly, I propose to make orders dismissing the interlocutory applications currently on foot and filed by the father.
That leaves for consideration the question of whether an order should be made for the application of section 102NA of the Family Law Act 1975 (Cth). There was no dispute that section 102NA(1)(b) has been satisfied in that there are allegations of family violence between the father and the mother, and the father, who is self-represented, proposes to cross-examine the mother about those allegations.
There was dispute as to whether an injunction had been ordered under sections 68B or 114 for the personal protection of either the mother or the father. However, I am satisfied that in the circumstances of this case, it is appropriate to make an order that the requirements of subsection (2) of section 102NA are to apply to cross-examination and I will make that order. In submissions from the father concerning section 102NA, he expressed the view that he would not in any event avail himself of representation funded through Legal Aid, but that he could make arrangements for a legally qualified representative to represent him at the hearing. Whether or not that is ultimately the final position, I do not know, but I am satisfied that the provisions section 102NA(2) should apply to cross-examination in these proceedings.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 29 January 2021
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