COURT DETERMINES ON WHETHER TO PROCEED WITH THE PARENTING PROCEEDINGS ON AN UNDEFENDED BASIS OR STILL LET THE FATHER FILE HIS AFFIDAVIT
Habel & Farnsworth (No.2) [202!] FCCA 633 (1 April 2021)
In this case, the court determines whether or not the court should proceeding hearing the case undefended or whether to allow the father to still file his affidavit after failure to do so for almost 6 and a half months.
Facts:
The proceedings relate to one child, X (born in 2008) who is the child of the parties. Proceedings first commenced in relation to the child as long ago as 2010.
The mother filed an application for the matter to proceed as an undefended hearing. The court came to the conclusion that the matter should proceed as an undefended hearing but that it should be set down for hearing on another date – to give the father time to consider the precise terms of orders sought and to make oral submissions.
In October 2020, the Court issued an order setting the matter down for an interim hearing to take place on 18 November 2020 and certain directions were given, including an order for the filing of affidavit material.
By 17 February 2021, the father had still not filed a response and nor had he filed any notice of risk or affidavit. The Court decided on 17 February 2021 that the matter should be set down for an undefended hearing.
Issue: Should the court allow the father to file his affidavit?
Law:
Analysis:
The father has, of course, had 6 and a half months to file an affidavit. He has not done so. The Court has determined the matter should proceed on an undefended basis. The father's application for leave to file an affidavit is refused.
The history of litigation between these parents shows that for the best part of 11 years they have been locked in the family law system litigating parenting arrangements for the child, X.
The best interests of the child is “the overriding issue”. Finalizing this matter by way of an undefended hearing is clearly in the best interests of X – especially having regard to the fact that her parents have been (more or less) locked in family law litigation for the best part of 11 years.
The child’s wishes were stated to the family consultant and the consultant's memo will be in evidence at the undefended hearing. The child does not wish to have contact with the father. The child is about to turn 13 years of age in 2021.
To grant the father leave to file an affidavit would be to unnecessarily complicate the matter and potentially delay it further – this is because the mother has indicated she would want a chance to respond to the further affidavit. Further expense and further delay is not in the best interests of the child in this matter.
Conclusion: The father's application for leave to file an affidavit is refused.