FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wehausen & Earl [2023] FedCFamC1F 239
File number(s): ADC 3873 of 2020 Judgment of: KARI J Date of judgment: 15 March 2023 Catchwords: FAMILY LAW – EX-TEMPORE REASONS – Where the matter has had a long procedural history before the Court – Where there are serious allegations of family violence and sexual abuse perpetrated by the father – Where the father’s non-compliance with orders has resulted in numerous adjournments – Where the father is not prosecuting his case with due diligence – Where the father has not seen the child since approximately early 2021 – Where the Court is of the view that it is appropriate to strike out and dismiss the father's Response and list the matter for trial on an undefended basis. Legislation: Family Law Act 1975 (Cth), ss 60CC, 62G, 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 10.26, 10.27
Division: Division 1 First Instance Number of paragraphs: 65 Date of hearing: 15 March 2023 Place: Adelaide Counsel for the Applicant: Ms Smith Solicitor for the Applicant: Picotti-Ellis Legal Counsel for the Respondent: Ms Ross Solicitor for the Respondent: Southern Coast Legal Counsel for the Independent Children's Lawyer: Ms Horvat Solicitor for the Independent Children's Lawyer: L.G Lawyers ORDERS
ADC 3873 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEHAUSEN
Applicant
AND: MR EARL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
15 MARCH 2023
UPON NOTING:
A.That once the Mother has complied with paragraph 5 of these orders, the court will make an order in chambers confirming the application of s 102NA(2) to these proceedings.
THE COURT ORDERS THAT:
1.That the Response to Final Orders filed by the Father on 28 March 2021 be dismissed.
2.That the proceedings are listed for trial on an undefended basis on a date to be fixed 3.
3.That no later than 4.00pm on 31 March 2023 each the Mother and the Independent Children's Lawyer do file and serve any Affidavit upon which they intend to rely for trial purposes.
4.That no later than 4.00pm on 14 April 2023 the Independent Children's Lawyer and the Mother do file and serve a Case Outline Document, with such Case Outline Document to include the following (divided under headings):
(a)Those documents to be relied upon;
(b)The specific orders sought (if different to those set out in the Application);
(c)A short chronology of significant events;
(d)A summary of the issues in dispute;
(e)A concise summary of argument (with specific reference to any statutory considerations);
(f)A list of any relevant authorities, together with submissions as to their reference; and
(g)A list of objections to evidence upon which rulings are required.
5.That no later than 4.00pm on 17 March 2023 the Mother do file and serve a copy of the Final Intervention Order made naming the Father as the defendant and the Mother as the protected person.
Note: The form of the order…
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- Wehausen & Earl [2023] FedCFamC1F 239
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- [2023] FedCFamC1F 239
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CaseChat Overview and Summary
The case of Wehausen & Earl was heard in the Federal Circuit and Family Court of Australia. The primary dispute involved allegations of family violence and the father's alleged failure to comply with court orders and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The mother had initiated proceedings on 19 August 2020, alleging that she was the victim of family violence by the father. The case included a serious incident at the time of their separation, which resulted in criminal charges against the father. The father admitted to one incident of physical abuse but denied systemic abuse and violence.
The legal issues the court had to decide centred around the father's compliance with court orders and the Rules, his prosecution of the case with due diligence, and the best interests of the child. The court had to consider whether the father's actions amounted to a failure to prosecute his case with due diligence and whether this justified striking out his response. The court also had to assess whether the matter should proceed to trial on an undefended basis or if further action, such as an updated report from the Independent Children’s Lawyer (ICL), was necessary.
The court found that the father had indeed failed to comply with court orders and the Rules, and had not prosecuted his case with due diligence. The court's decision was influenced by the significant passage of time since the last report from the ICL, raising concerns about the child's current views and best interests. Consequently, the court decided to strike out the father's response and list the matter for trial on an undefended basis. The father would still be allowed to cross-examine witnesses but could not present his own witnesses.
The final orders included striking out the father's response and listing the matter for trial on an undefended basis. The father was permitted to cross-examine any witnesses called by the ICL or the mother. These orders aimed to ensure the matter concluded in the child's best interests, given the delay and the father's lack of diligence.
The legal issues the court had to decide centred around the father's compliance with court orders and the Rules, his prosecution of the case with due diligence, and the best interests of the child. The court had to consider whether the father's actions amounted to a failure to prosecute his case with due diligence and whether this justified striking out his response. The court also had to assess whether the matter should proceed to trial on an undefended basis or if further action, such as an updated report from the Independent Children’s Lawyer (ICL), was necessary.
The court found that the father had indeed failed to comply with court orders and the Rules, and had not prosecuted his case with due diligence. The court's decision was influenced by the significant passage of time since the last report from the ICL, raising concerns about the child's current views and best interests. Consequently, the court decided to strike out the father's response and list the matter for trial on an undefended basis. The father would still be allowed to cross-examine witnesses but could not present his own witnesses.
The final orders included striking out the father's response and listing the matter for trial on an undefended basis. The father was permitted to cross-examine any witnesses called by the ICL or the mother. These orders aimed to ensure the matter concluded in the child's best interests, given the delay and the father's lack of diligence.
Orders
Orders of the court
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Background
Background to the litigation
I have come to that considered decision as I will discuss shortly because, in my view that not only has the father failed to comply with orders of the Court or obligations created by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’), but importantly and significantly from my perspective he has failed to prosecute his case with due diligence. In making that decision I have had regard to r 10.26 of the Rules and, in addition, r 10.27 which sets out the orders that a Court is entitled to make when a party is in default.BACKGROUND Turning now to the history of the matter. As I said a moment ago, these proceedings were commenced by the mother on 19 August 2020. At the time that the proceedings were commenced the parties had been separated for approximately four years. From the date of separation in 2016, the mother says, until about March of 2019 the child would spend time with the father and live with the parties on a week-about basis. The mother's case, however, is twofold. Firstly, she says that she was the victim of family violence perpetrated by the father and, to that effect, not only is there an intervention order which protects her from the father, but also as at the date of separation there was a very, very serious incident of family violence which resulted in the father being charged and ultimately, I understand, convicted of an offence. The father to some degree admits, at least to an incident, at around the time of separation. He otherwise denies the mother's general allegations of family violence. However, so far as the incident that took place at around the time of separation, the father indicated to the Family Consultant Ms B which she records in her report of dated 6 June 2022 that: 29. [Mr Earl] denied any "systemic abuse or violence" in the parties' relationship. He did, however, admit to one incident of physical abuse against the mother, but denied it was to the extent claimed by the mother. He admitted to grabbing her by her collar (of clothing) and throwing her into a chair whilst giving her "a mouthful of abuse". He stated that the argument began after he arrived home from the pub and [Ms Wehausen] began screaming at him for forgetting to purchase sausages for [X's] birthday party the following day. He stated that she "kicked me out" (noting they were separated and living under the same roof at the time), and "I saw red and snapped". He stated that upon the arrival of Police he admitted his actions and felt "totally ashamed" of his behaviour. 30. Notwithstanding, he argued that the mother was not injured but clearly "shaken up", and that the Police had shown him a fake photo of the mother's injuries depicting bruising [on her body], which was simply not possible given he never struck her. He stated that he was denied bail because he breached the Intervention Order. However, later at Court the Police did not use the photo previously shown to him and nor did they rely on the medical report, given both were "false". [Mr [Earl] added that the Intervention Order was also obtained by Police after believing the mother's false claims of abuse and failing to believe he was in fact the victim of her abuse. He stated that calling the Police that day was "the most silly thing I did ... I thought they'd help".
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In addition, in circumstances now where Ms B’s report was prepared in May of 2022 and we are no closer to listing the matter for trial, I have grave concerns that one or both of the parties and/or the ICL will be asking the Court to prepare an updated report, even if it is limited, to ascertaining what X's present views are with respect to a future relationship with the father. At the very minimum, that is something that I may consider that I need in order to resolve the matter, given the passage of time that has now elapsed since Ms B first prepared her report. CONCLUSION In all of those circumstances, as I indicated to the father's counsel, there comes a point of no return. Unfortunately, for the father, it is my view that the point of no return has come today. It has come for all of the reasons I have enunciated so far. Principally, however, I am concerned that it is in X’s best interests that these proceedings come to an end. It is for all of those reasons that I have come to a considered view to strike out and dismiss the father's Response and to list the matter for trial on an undefended basis. As I said at the commencement of these reasons, the father will be permitted to cross-examine any witnesses called by either the ICL or the mother, but he will not be able to present any of his own witnesses. I, accordingly, for all of those reasons, make the following orders.Note: These reasons have been corrected from the transcript. Grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read. These reasons should also be read in conjunction with the transcript of the hearing in circumstances where the Court was asked to make orders by consent and the terms of the proposed orders were canvassed with the parties.
Ratio Decidendi
Legal Principle Established
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