ZARIF & BENT

[2019] FamCA 1057

FAMILY COURT OF AUSTRALIA

ZARIF & BENT [2019] FamCA 1057

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks to rely upon a further affidavit responding to the mother’s affidavit of evidence in chief – Where trial directions made specifically limited reliance on other affidavits – Where the allegations made in the mother’s trial affidavit were largely already included in previous material filed by her and the father could have expected such allegations to be addressed in her trial material – Where the father could have been able to address them in his trial material – Where the application is dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Zarif

RESPONDENT: Ms Bent

INDEPENDENT CHILDREN’S LAWYER: Nigel Grainger

FILE NUMBER: BRC 8489 of 2018

DATE DELIVERED: 18 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gordon

SOLICITOR FOR THE APPLICANT: O'Neill Family Law

COUNSEL FOR THE RESPONDENT: Mr Drysdale

SOLICITOR FOR THE RESPONDENT: Best Wilson Buckley Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nigel Grainger
Legal Aid Queensland

Orders

1. That the Applicant’s oral application for leave to read and rely upon his affidavit filed 15 November 2019, is dismissed. 

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 Zarif & Bent 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 BRISBANE

FILE NUMBER: BRC 8489 of 2018

Mr Zarif

Applicant

And

Ms Bent

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Before me now at the start of this trial is an application by the Applicant father for leave to rely on a second affidavit of evidence-in-chief that was filed on Friday, 15 November 2019, when today is Monday, 18 November 2019. A copy of the affidavit was received by the solicitors for the Respondent mother after 5.00 pm on Friday afternoon.

2. In essence, upon the face of it, the document sought to be relied upon is an affidavit by the father in response to the mother’s affidavit of evidence in chief, certainly not with respect to every paragraph, but on a paragraph by paragraph basis through that affidavit, answering it.

3. This matter had trial directions that provided for each party to file and serve only one affidavit of evidence-in-chief in the matter and that was to be done simultaneously, or at least on or before a certain date. The date by which the affidavits were to be filed was the same for each party.

4. My trial directions also included specific restriction on reliance on any further affidavits not filed in accordance with the trial directions save without first obtaining leave from the Court. That explains why when the trial began this morning, the father through his counsel, has applied for leave to rely on this further affidavit.

5. The application faces a particular difficulty though. It is the principal basis of the mother’s opposition to leave being granted. The facts upon which it is based are not in dispute. They were properly conceded by counsel for the father as being correct after he had heard the submissions of the mother’s counsel.  In a very summary form, the circumstances were this: the two subject children of these parenting proceedings have not spent any time with their father for 20 months now due to allegations of sexual abuse arising against him. Indeed, he was charged with criminal offences by the Queensland Police and some of his conditions of bail included that he not have any contact with the children.

6. Those criminal proceedings went to trial in May of this year and resulted in acquittal on all counts. After that acquittal, presumably relying on an expectation that this matter might take a lot longer to come to trial in this Court than it actually has, the father brought an Application in a Case in which he sought orders, on an interim basis, that again effectively reinstated his time with the children. That application was heard a few months back by Senior Registrar Spink. Of course it required an affidavit of evidence to be filed by the father supporting his application and it resulted in an affidavit of evidence-in-chief being filed by the mother in response in opposition to it.

7. I am informed and accept, having regard to the concession I have referred to, that all of the allegations made against the father in the affidavit of the mother that he has sought to respond to in this affidavit that leave is sought to rely upon were already included, virtually in an identical form, in the affidavit of the mother that was filed in July.

8. In the circumstances, I am satisfied that the father might very well have expected or even known the allegations that were going to be made against him. If he needed to deal with them in any other way than that which he has already done in his affidavit of evidence-in-chief that he filed pursuant to my directions, he could have done so.

9. Counsel for the Applicant father urged upon me that I could perhaps delay the decision about whether leave should be granted until the end of the trial after cross-examination of both parties has taken place and then decide whether I will rely upon it or not. I am not minded to consider that an appropriate way to deal with the matter, given it would put counsel for the mother in a situation where he would not know whether that affidavit of evidence-in-chief was going to be allowed in or not at the time he was cross-examining.

10. Indeed of course, he may be able to cross-examine him on the content of it, as was pointed out to me, but that is a matter for Mr Drysdale and his cross-examination.

11. In the circumstances, I am not going to grant leave for this further affidavit to be relied upon at the trial at this stage.

12. The application is refused.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 November 2019.

Associate: 

Date:  17 August 2020