Eisner and Candace [2019] FCWA 134 – O’Brien J – 14 June 2019

O’Brien J applied a sensible, practical approach that should apply, and would save substantial costs and angst, in almost all family law matters.

After many amended applications and responses relating to parenting (property had been resolved via consent order), O’Brien directed the parties to confer in person and to file, before hearing, a joint summary setting out “those orders which could be made by consent whether or not the wife moved with K [the child] to Region A, any additional orders which could be made by consent in the event that she was permitted to move, and any additional orders which could be made by consent if she was not”.

When the hearing began, it became clear that the parties had not conferred or summarised as directed.  The judge did not commence the hearing and again directed the parties to confer and report.

“To their credit, by that process the parties were able to agree a number of orders which can be made by consent regardless of the determination of the central issues, and various other orders which can be made by consent dependent on that determination” (¶ 29).

He also said (at ¶¶ 25 to 27)…

“Quite apart from the obvious point that a specific order had been made, proper personal conferral is a critical feature of the proper conduct of litigation, other than in exceptional circumstances including those in which family violence might render it inappropriate.  It is necessary for the purpose of identifying the issues actually in dispute, endeavouring to resolve them, and if they cannot be resolved, narrowing them.  The benefit to the parties of that approach, which frankly only reflects the basics of sound practice by lawyers in any event, is obvious.  Correspondence, no matter how voluminous or frequent, is no adequate substitute for parties and their lawyers actually talking to each other.

“Over and above that, compliance with any mandated requirement for conferral is essential to effective case management in circumstances where the workload of the Court continues to increase, and where parties understandably wish to see their cases progress through the court system as promptly and cost-effectively as possible.

“That efficiency can only be achieved if parties identify and narrow the matters actually requiring resolution by the Court, without consuming Court resources or judicial time in what should be a process preliminary to litigation, and certainly preliminary to trial.”

It seems relevant to note that section 69ZN(6) requires that child-related proceedings, so far as possible, to be conducted in a way that will promote cooperative and child-focused parenting.

(The relocation was allowed and orders already agreed by the parties for that eventuality, covering time for the children to spend with the husband, were applied.)