Wehausen & Earl
[2023] FedCFamC1F 239
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 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
KARI J
INTRODUCTION
These proceedings are parenting proceedings in relation to the parties' one child, X, born in 2012.
These proceedings were commenced by the mother on 19 August 2020.
Since approximately, August of 2022 I have been attempting to list this matter for trial. For reasons that will become clear shortly, I have been unable to do so.
As a consequence of the matters that I am to discuss throughout the balance of these reasons, it is my considered view that the ongoing default at the respondent father's end to comply with orders of the Court and obligations created pursuant to the rules to ready this matter for trial, has resulted in the unfortunate circumstance where I am now of the view that it is appropriate to strike out the father's Response for final orders. In doing so, I will make an order listing the trial to proceed on an undefended basis.
That does not mean that the father does not have a right to challenge any of the witnesses called by either the mother or the Independent Children's Lawyer (‘ICL). What it does, however, mean is that he will not be in a position to put his own evidence before the Court.
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".
Secondly, and in addition to the mother's allegations of family violence as and between the parties, the mother also alleges that the child, X, is the victim of sexual abuse perpetrated by the father.
The allegations of sexual abuse have been made by the child, X, on more than one occasion. The allegations include an allegation that the father digitally interfered with X in the process of giving her a leg massage. In addition, the allegations include an allegation that the father was in bed with X and he was either lying on top of her or next to her and that the child felt uncomfortable, the father being in his underwear only. The father, I understand, denies those allegations.
Be that as it may, the allegations led to a series of events. The allegations led, firstly to the involvement of the Department for Child Protection (‘DCP’) who investigated the allegation and determined in April of 2019 that the allegations had been substantiated. Secondly, the father was charged with criminal offences in relation to those allegations. I understand, however, that the charges in relation to the father were ultimately withdrawn because the child did not wish to give evidence in any criminal proceedings, bearing in mind that the child was born in 2012 and in about 2020 when this was all unfolding she would have been a tender eight years of age. As I understand it—and I do not understand this to be in dispute—it is this decision and reluctance by X to give evidence that ultimately resulted in the criminal charges being withdrawn.
I equally understand that as a result of the disclosures made by X she has been engaged with various services to provide her with support.
All of these matters and allegations are serious. I understand that the father denies all of the allegations in relation to his conduct regarding X.
Throughout the course of these proceedings there has been an attempt at time spending between the father and X. I understand that there were six supervised contact visits that were ordered in these proceedings. Those orders were first made by Judge Kelly on 7 September 2020. Those visits took place but, as I understand it, X did not attend on the sixth and final visit.
These proceedings were commenced in the Federal Circuit Court of Australia as it then was. The proceedings were ultimately transferred to Division 1 of the Court by orders made on 23 February 2021. However, prior to Judge Kelly transferring the matter to Division 1 a number of things had occurred in the context of the proceedings. Those things not only included the orders for time spending at a supervised contact centre, but in addition on the same day, namely, 7 September 2020, her Honour made orders pursuant to s 69ZW of the Family Law Act 1975 (Cth) (‘The Act’) directed to both the DCP and the South Australian police department (‘SAPOL’). Those orders presumably were made so that the parties could marshal evidence necessary for each of them to prosecute their case in these proceedings.
So far as the father was concerned, his case has always been, as I understand it, that he does not present any risk of harm to X and in the process of asserting so, he attempts to satisfy the Court that, not only did he not sexually abuse X, but also that there is no risk that he would do so in the future.
The other limb to the mother's case, however, is that she makes serious allegations of family violence and it is not clear to me at this juncture, aside from a general denial and an assertion that the mother has exaggerated some or all of those allegations, how the mother's allegations of family violence are to be handled in the matrix of issues to be dealt with at the father's end so far as risk factors are concerned.
Returning to the trajectory of the proceedings. As I said, Judge Kelly made orders on 7 September 2020 pursuant to s 69ZW. It is clear to me that documents were returned by SAPOL by 9 October 2020 because her Honour made orders in chambers for the inspection of those documents. Her Honour also made a similar order with respect to the documents produced by DCP on 10 November 2020.
The matter was ultimately transferred to Division 1 by orders of Judge Kelly on 23 February 2021. On the transfer of the matter to the Division 1, the matter came before the Judicial Registrar on 26 March 2021 and the matter was referred to the pool of matters awaiting trial allocation. As a consequence of that order, ultimately the matter was referred to my chambers. Prior to doing so, however, and on 7 December 2021 the Judicial Registrar made an order pursuant to s 62G of the Act for the preparation of a Family Report by a Court Child Expert. The person appointed for the purposes of that order was a consultant by the name of Ms B.
Following all of that management by the judicial registrar, the matter ultimately made its way to my chambers and I made a chambers order on 8 February 2022 giving the matter a first-day hearing on 28 February 2022. Significantly for present purposes on that day I made an order which is a standard order that I make in all proceedings when I give a matter a first-day listing in the following terms:
3.That in the event that any party is legally aided they are to make their application for a grant of legal aid for TRIAL PURPOSES no later than six weeks prior to the First Day Hearing and be in a position to advise the court as to funding arrangements at the First Day Hearing.
For reasons outside of the parties' control, the first day hearing that I had planned to hear on 28 February 2022 was unable to proceed. That is because there were delays with the preparation of Ms B’s report. The delay in the preparation of the report resulted in two further attempts at a first-day hearing being adjourned. The first attempt was a hearing in May 2022 which was administratively adjourned, and the second attempt which did proceed unsuccessfully was a hearing on 24 August 2022, which was adjourned.
At the attempted first-day hearing on 24 August 2022, I made adjourning the first day hearing to 16 September 2022.
Significantly, I made a considered decision that day to adjourn the proceedings because it was clear to me that at the father's end there had been no consideration or focus as to how his case was going to be run. Indeed, I had regard then, and I have had renewed regard today to the Outline of Case that was ultimately prepared and filed on 14 September 2022.
Both of the parties had been ordered pursuant to my orders of 8 February 2022 to file and serve seven days prior to the first-day hearing an outlined detailing a summary of the issues in dispute, a Minute of the specific Orders that they sought, and a trial plan identifying the witnesses to be relied upon at trial, together with an estimated length of trial and any subpoena which would be issued. Neither of the parties had complied with that order when the matter came before me on 24 August 2022. Each of them, however, did comply with that order by the filing of their respective outlines on 14 September 2022 in readiness for the first day hearing on 16 September 2022.
At the hearing on 16 September 2022, the father for the first time before me was represented by counsel. I pause here to record that counsel throughout these proceedings before me have been the same, in circumstances where on each and every occasion that proceedings have been been adjourned I have made significant attempts to ensure consistency of counsel and I have listed the matter to accommodate counsel's availability.
Coming back to the hearing on 16 September 2022. On that day, having the benefit of the Outline of Case filed by the parties, I understood that in relation to the father, he only proposed to call as witnesses himself and each of the paternal grandparents. Having interrogated the cases of each of the parties during the hearing and understanding as a consequence that the father sought to challenge the DCP investigation process and/or that of SAPOL, a discussion then ensued with the father's counsel as to what that meant in terms of the witnesses he planned to call for trial.
What I was told on that occasion is a number of things of significance which I recorded in the notations to the orders made that day. Importantly, I directed the parties to review the documents that had been produced pursuant to the s 69ZW orders first made by her Judge Kelly on 7 September 2020. I then asked the parties during the period of the adjournment to consider their positions and advise the Court not only as to the witnesses to be called by each of them, but any subpoena which would need to be issued, whether they be subpoenas for the production of documents or to give evidence.
On 16 September 2022, I adjourned the proceedings to 2 November 2022. At the adjourned first day hearing on 2 November 2022 I was advised by the father's counsel that they had now inspected the material produced pursuant to s 69ZW by DCP and SAPOL. The father indicated through counsel - again this is recorded in the notation to the orders - that he wished to call workers engaged with the Child Protective Service (‘CPS’) investigation and/or DCP investigation together with SAPOL officers and the identity of three persons were recorded in the notations.
The father also indicated through counsel that he was to issue subpoena to SAPOL for the release of statements given by various witnesses for the purposes of the criminal proceedings. I was also told that it was not until the father had issued those subpoenas and material had been returned, that each of the parents and the ICL would be in the position to advise the Court whether or not any of those witnesses would need to be called at trial.
On that basis the proceedings were yet again adjourned for a further first-day hearing on 31 January 2023. At that hearing the proceedings were, again, adjourned. They were adjourned on that occasion ostensibly because the Court was told that the father, had in his possession or the ability to obtain, documents produced for the purposes of the District Court proceedings and, indeed, an indication was given that they had been or were about to be discovered to the other parties to these proceedings. As a consequence of that information, the proceedings were adjourned to 2 February 2023 for another attempt at a first-day hearing.
At the hearing on 2 February 2023 a number of matters unfolded. In particular I made inquiries of the parties as to whether there had ever been compliance with paragraph 3 of the orders I had first made on 8 February 2022, with respect to the parties’ respective legal aid funding for trial purposes. I was told that the father had not complied with that order and had not made an application for a grant of funding for trial purposes. I was also told that the mother had complied with the order but had only received confirmation for funding for a four-day trial. I was also told that the father continued to wish to call the three witnesses that had been identified in the notations to the orders that I made on 2 November 2022.
As a consequence of the discussions that occurred at the hearing on 2 February 2023, further orders were made in the matter in an attempt at channelling the matter to a further first-day hearing. I indicated to the parties that I was not adjourning the first-day hearing, but I was simply adjourning the matter for mention in circumstances where until there was clarity as to the father's funding position, I was not prepared to give the matter yet another first day hearing fearing that it might be futile to do so.
I additionally made orders to try and bring focus, yet again to the proceedings from the father's perspective. The focus throughout each of the first-day hearings and as early as my orders of 8 February 2022, that I have been attempting to bring from each of the parties' perspective but relevantly the father's perspective for present purposes is to gain an understanding as to exactly what the father's case is, the witness’ he proposes to call and from his perspective the time estimate for trial. It is only after those matters are known with certainty and clarity at the father's end that each the mother and the ICL are able to give a considered view in light of discovery of all of the available material as to those witnesses that they intend to call.
At the hearing on 2 February 2023, and understanding that at the hearing in this Court on 31 January 2023, (only days earlier) the Court was advised that there were District Court documents that were available, I made an order that the father provide discovery on oath as follows:
3. That within 14 days the father do file and serve an Affidavit setting out discovery on oath with respect to documents in relation to the criminal proceedings and in that regard such list is to identify not only the documents in is power, possession, custody or control but in addition any other documents he is aware exist but are not in his power, possession, custody or control.
In addition, I made orders requiring both of the parties to confirm their Legal Aid funding for trial purposes. I then adjourned the matter with respect to an update as to the parties' Legal Aid funding and any application that s 102NA apply to today's date.
The matter comes before me today, being 15 March 2023, in circumstances where there has been non-compliance with my orders yet again at the father's end. The non-compliance principally relates to paragraph 3 of my orders in relation to discovery on oath as directed. In addition, however, I understand that the father's funding for trial purposes is not entirely confirmed, although I am told that a grant has been made for a ten-day trial. However, the legal services commission requires further information including the commencement date of trial.
I have also been told, however, that the reason the father has not complied with paragraph 3 of my orders of 2 February 2023 is because there is no funding in place for that to occur. What is not clear to me from all of the submissions that I have heard at the father's end today, is what applications for funding were made throughout the course of these proceedings, from as early as when I first directed the parties to attend to those matters by my orders of 8 February 2022.
As I indicated earlier, at the hearing on 2 February 2023, I was told by the father's counsel, presumably on instructions, that no application for a grant of funding for legal aid for trial purposes had been made. I am told today through counsel that this may not have been accurate and that there may well have been an application at an earlier stage. However, for inexplicable reasons, given these proceedings were before me today with respect to the question of funding for trial, the father's counsel is unable to get clear instructions from her instructor in relation to what applications were made and for what purposes at each stage throughout these proceedings.
I recite that history because it is a long and difficult trajectory as to why we are in the position that we are now in. As I indicated during the course of submissions, there has been five attempts at having a first-day hearing. I had hoped today that I would be able to list the matter for a sixth attempt at a first-day hearing. However, because of the father's non-compliance with the orders made on 2 February 2023, I am not able to do so.
DISCUSSION
I have made it plain in my discussions with the father's counsel throughout the course of her submissions that there is an exceptional level of frustration as to how the father has prosecuted his case including but not limited to failure to comply with orders of the Court, as I have now outlined, together with a failure to prosecute his case with due diligence.
Submissions have made by the ICL and the mother that they are no clearer today than they were in August 2022 as to how the father intends to prosecute his case. Those submissions from my perspective ring true, save and except that I understand that the father wishes to challenge the DCP, CPS and SAPOL processes and call at least three identified persons.
Beyond that, because the father has not discovered documents produced in the course of the criminal proceedings, he is not able to tell me with certainty if there are any further witnesses he intends to call. Unfortunately, nor are either the ICL or the mother in a position to tell me whether as a consequence of knowing how the father intends to prosecute his case, who they as a consequence intend to call as witnesses.
As I have said, the identification of witness’ is from my perspective the entire purpose of a first-day hearing. It is the reason that on 8 February 2022, I made orders for a first-day hearing to take place which included orders not only in relation to legal aid funding for trial purposes, but also detailed outlines to be produced so that the Court had an understanding as to a trial plan, an understanding of the issues in dispute, the specific orders sought, any witnesses to be called and any subpoena to be issued.
Despite the father indicating at the hearing on 2 November 2022 that subpoena would likely need to be issued and returned, it does not appear to me that this step has been taken whatsoever at the father's end. What is not clear to me is whether or not that step has not been taken because he is satisfied with the documents that he has in his possession with respect to the criminal proceedings in the District Court and whether that is the reason he has not issued subpoena. However, I would have to some scepticism that that is an accurate position. I say that because I have been told by the father's counsel today that he does not have in his possession, nor does his solicitor have in her possession, documents discovered and produced as part of that District Court process. I am told that while the father's solicitor acted for him with respect to the criminal proceedings, documents were given to counsel (not the same counsel appearing for the father in these proceedings) and that various documents cannot be located.
I do not understand with any clarity what documents exist and that which remain to be obtained at the father's end. That is, as I say, one of the many reasons that I made the order for discovery on oath on the last occasion. That it has not been complied with is exceedingly frustrating.
Turning to what is the most important aspect of this matter, and that is that there is a ten-year-old child who is embroiled in this litigation. The person who is most impacted by these proceedings not being dealt with in an orderly and timely way is X. While these proceedings hang over her head and she has uncertainty about her long-term arrangements, that is, on any view, not a circumstance which could ever be considered to be in her best interests.
I have the benefit of Ms B’s report prepared on 26 May 2022 and filed 6 June 2022. As part of that process Ms B recorded matters which I outlined at the commencement of these reasons, that X has not seen the father since the last of the Children’s Contact Service (‘CCS’) visits in early 2021. Ms B for a range of reasons made a range of recommendations. Understandably, she did not choose to wade into whether the Court was able to make findings as to whether abuse had occurred in relation to X. Additionally, Ms B did not wade into were whether the Court was able to make findings as to the allegations of family violence made by the mother.
Ms B did, however, indicate that if the Court was not satisfied that there had been abuse and/or family violence, then the Court should consider ordering a further period of supervised time spending between X and the father at a supervised contact service. She ultimately indicated that whatever the case may be, X's wishes would be important.
At the time that Ms B prepared her report, X's views were described at paragraph 53:
53. When asked how she felt about not seeing her father for over a year now, [X] stated, "I didn't think about it much". When asked if she missed him, she stated, "kind of'. When asked about her future wishes for time spending with her father, [X] stated that she would "kind of want to see him" and that she probably thought it would be best if this took place again at the CCS. [X] was clear that she wanted her time with her father to be supervised. She knew her mother did not want to do it and she did not know of anyone else who could provide the supervision for her. -
Additionally at Ms B reported at paragraph 54:
54. When asked about any positive memories she had of her father, [X]'s demeanour appeared to shift to one of positive reflection. She smiled, seemed happy, and stated, "me, my brother and my dad always used to go to a waterfall each lunch and hang out .. . and we used to go on 'adventures' (this is what her father called them) and rock climbing".
X was then asked whether she wanted to see the father as part of the assessment process and, indeed, that took place.
Ultimately, however, I understand that the child's views and wishes are but one of the myriad of factors I am required to bring to account in those factors prescribed by s 60CC of the Act. The primary considerations, however, are those which are likely to play a significant role in these proceedings. If I am ultimately satisfied that abuse has occurred and/or that I am satisfied in the absence of being able to make those findings that the father presents an unacceptable risk of abuse/harm in the future, then certain consequences flow from those findings and considerations being made.
Those findings flow to whether it would be safe for there to be any time spending, the mother's position is that it is not, and/or whether a safe outcome for X would be an arrangement which sees time spending occur in a manner which protects her from harm. The obvious options being supervision in the present circumstances given X has identified that as something she would like if she was to spend time with the father in the future.
I summarise all of those matters so that it is clear to the parties that I understand with clarity what the issues are in these proceedings. It has been clear at least to these parties from as early as 2020 when the proceedings commenced what the issues in dispute were. The father has always known the mother's concerns, because they are outlined in her affidavit, are in relation to family violence and in relation to the alleged sexual abuse of X.
It is not the job of the Court to tell the parties or advise them how to prosecute their cases. For reasons which are not entirely clear to me, on any view, the father's case has not been prosecuted at any stage in the process with due diligence for all of the reasons that I have now outlined.
While I acknowledge that it is a serious step to deny a party the ability to put their case before the Court, what is inescapable for me in these proceedings is a conclusion that I have come to, that the father has been given every opportunity to prosecute his case and to tell the Court how he intends to do so. Yet, despite five first-day hearings, I am still no clearer able to understand exactly how the father intends to run his case than I was in August of 2022 beyond understanding three specific witnesses across DCP, CPS and SAPOL that he wishes to call.
As a consequence of the manner in which the father has prosecuted his case, I am equally no clearer as to those witnesses that the mother and/or the ICL intends to call. I say that despite there being obvious witnesses that each of the parties intend to call beyond themselves, the paternal grandparents on the fathers case and the report writer.
All of this has meant that I am unable to give this matter a realistic time estimate for trial and a trial listing. That is of grave concern to me.
Every time that these proceedings return to Court it is the public purse that is wearing the expense. It is wearing the expense because the parties are legally aided, it is wearing the expense because the ICL is funded from the public purse, as is the Court and the court process.
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.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 04 April 2023
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