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FLAST CASE SUMMARY  

Case : Bangi & Belov [2019] FamCA 42 (6 February 2019)

- Time With

This case involved one child, 13 years of age, where the matter was remitted by the Full Court for to the Family Court for consideration of a discrete issue.

The dispute relates to the proportion of time the child will spend with each parent during school terms, the dispute arose because the police have attended the mother’s residence on multiple occasions due to reported and conflict between the mother and her [new] partner.

The father seeks more time in the father’s household and less time in the mother’s household to reduce the child’s risk of exposure to violence, conflict and alcohol abuse. The father sought orders whereby the child live with the mother on alternate weekends and for one night in each intervening week during school term and otherwise with him.

Parental Responsibility

Additionally there was a dispute as to which school the child attends and an order is made specifying which school the child will attend.

Practice and  
Where the father seeks to rely on findings made by an earlier Court in the same proceedings, the Courts consideration of case law and s 69ZX of the Family Law Act 1975 (Cth). Where the Court is able, but not required, to adopt unchallenged findings made by the trial judge in earlier proceedings.

Issue : Although in her written submissions the mother objected to all of the affidavits in the father’s case, the only objection she pressed at the commencement of the hearing was in respect of the affidavit of Mr JJ. The father’s counsel said that the deponent would not be available for cross-examination. In the normal course, an affidavit would be excluded where the deponent is not made available for cross-examination, without a justifying circumstance.

Reasoning: However, as with other aspects of the proceedings, the affidavit in question was part of the evidence before Hannam J in the earlier hearing. The evidence of Mr JJ was not challenged in those earlier proceedings. That is because the mother failed to attend the parts of the hearing which occurred after that affidavit was sworn and filed. However, there was no appeal by the mother in relation to the orders of Hannam J and although she attended a procedural hearing (about expedition) she failed to attend at the hearing of the father’s appeal. As a result there was no challenge on appeal to the findings of Hannam J in respect of Mr JJ’s evidence.

HELD : 

Where orders are made that the child lives with the father and spends substantial and significant time with the mother.

Additionally in regards to schooling : I have ordered that he mainly live with his father. Largely for that reason I ordered that the child attend the public School (as opposed to private school mother wanted) nearest the father, commencing in the 2019 school year.


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Skivington & Skivington [2019] FamCAFC 36 (11 March 2019)

The husband pursued parenting and property orders and the wife filed a response to that application.

The judge made an order directing the parties to attend mediation and the matter was adjourned for further directions. There were several adjournments that took place some of which the court motioned other times the parties requested for more time to mediate.

The orders by consent instructed the parties they must attend mediation before the next mention date and for there to be no further adjournments, if the husband and wife failed to prosecute their claim, the matter would be dismissed on the next occasion.

During the interim stages, the parties resolved the parenting issues and had agreed to a method of valuing the property. The judge was informed the parties expect on completion of mediation for the matter to be resolved.

The matter was adjourned again in chambers at the parties’ request because the expected mediation had not occurred. The matter returned before the judge where the parties again requested more time to complete the mediation process.

The Judge dismissed both the initiating application and response on the basis that the parties had failed to prosecute the matter.

The wife appealed those orders, and claims the orders were complied with and that both parties were attending the mediation process, however the mediation process was incomplete, due to the mediator’s other commitments. The husband also conceded the judges orders were erroneous.

FACTS SUMMARY:

  • The husband pursued parenting and property orders and the wife filed a response to that application.
  • Orders by consent instructed the parties that they must attend mediation before the next mention date and for there to be no further adjournments.
  • The judge was informed the parties expect on completion of mediation the matter to be resolved.
  • The parties again requested more time to complete the mediation process.
  • The mediation process was incomplete, due to the mediator’s other commitments
  • The Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter.
  • The wife is appealing; the husband concedes the orders were erroneous.

ISSUE:

Did the judge fail to comply with the requirements of Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth)?

HELD:

The appeal against the orders were allowed.The initiating application and response are remitted to the FCC for a rehearing with a different Judge. The court grants both parties a costs certificate.

In determining this matter Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth) provides:

13.12 Dormant proceedings (1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed. 

(2) The Court must not make an order under subrule (1) if: 

(a) there is a future listing for the proceeding or a part of the proceeding; or 

(b) an application in a case relating to the proceeding has not been determined; or 

(c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or 

(d) the Court has not given the parties to the proceeding notice under subrule (3). 

(3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order. 

(4) Notice under subrule (3) must be sent by post in an envelope marked with the Court's return address: 

(a) to each party's address for service; and 

(b) if a party has no address for service--to the party's last-known address. 

It was established the matter was not “dormant” for the parties had attended mediation in accordance with the order, although the mediation was incomplete, due to the mediator’s other commitments. Whilst the process may have been slow going it was still in motion, the parties had therefore “taken steps to advance the proceedings.”

Furthermore, the judge stated at [10] “no evidence was tendered or relied upon on the adjournment application to explain why orders had not been complied with” contrary to this, a transcript extract from the submissions made on the adjournment application at [1] was included in the judges reasons.

It was determined the judge had erred in failing to consider the actions of the parties that demonstrated they were in fact prosecuting the proceedings. The judge did not clarify why the partial settlement and the incomplete mediation process were inadequate to avoid the proceedings being rejected. 

 

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