Aldrich and Anor and Mahan

[2019] FCCA 1405

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDRICH & ANOR & MAHAN [2019] FCCA 1405

Catchwords:
FAMILY LAW – Oral application for relief in interim hearing for an interim distribution of property – absence of reasonable notice or evidence – distribution of property be reserved for trial – no Application in a Case for relief sought.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.03, 1.05

First Applicant: MR ALDRICH

Second Applicant: MR MAHAN

Respondent: MS MAHAN

File Number: MLC 3039 of 2018

Judgment of: Judge A Kelly

Hearing date: 23 May 2019

Date of Last Submission: 23 May 2019

Delivered at: Melbourne

Delivered on: 30 May 2019

REPRESENTATION

Counsel for the First Applicant:	Mr Lethlean
Solicitors for the First Applicant:	Pearsons Lawyers
Counsel for the Second Applicant:	Ms Dellidis

Solicitors for the Second Applicant: Australian Family Lawyers

Counsel for the Respondent: Ms Tulloch

Solicitors for the Respondent:	Rigoli Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Eidelson
Solicitors for the Independent Children’s Lawyer:	Peter Lynch

ORDERS

1. The respondent’s oral application for a partial distribution of property be refused.

IT IS NOTED that publication of this judgment under the pseudonym Aldrich & Anor & Mahan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3039 of 2018

MR ALDRICH

First Applicant

And

MR MAHAN

Second Applicant

And

MS MAHAN

Respondent

REASONS FOR JUDGMENT

1. These reasons explain why I refused an oral application made in the course of an interim hearing, that the respondent obtain a partial distribution of property from the net proceeds of sale.

2. On 21 March 2018, the applicant father commenced a proceeding seeking parenting orders respecting the child of the relationship, [X] born … 2015, including that the child live with the him and for urgent ancillary relief.  Further orders were sought respecting an adjustment of the parties’ modest property interests.

3. On 27 March 2018, an order was made that the child live with the father upon condition that the father continued to live with his parents.  In the circumstance that the respondent had unilaterally relocated with the child to Perth, Western Australia, a recovery order was made, operative upon the respondent’s failure to return the child to Victoria forthwith.

4. On 9 July 2018, the matter was listed for mention.  An order was made providing for mediation and otherwise adjourning it for further mention.

5. On 24 October 2018, an order was made, by consent, for the appointment of an Independent Children's Lawyer.

6. On 12 December 2018, orders were made by Judge Williams (as her honour then was) consolidating this proceeding with another proceeding involving a parenting dispute between the respondent and the father to other children.  The matter was fixed for trial on 16 December 2019 and adjourned for interim hearing on 25 February 2019.  Ancillary orders were made for a conciliation conference and a family report.

7. On 25 February 2019, further orders were made, by consent, providing that two children should live with the applicant father on a final basis, for the mother to undertake and complete certain parenting programs and, upon compliance with those programs and producing a certificate of completion, that the children's time with her be unsupervised.  Consent orders were also made for therapeutic counselling for one of the children.  Further, an order was made, by consent, that the respondent mother should file and serve any further application and affidavit respecting one child and for the provision of an Outline of Case.

8. On 26 March, and again on 17 May, 2019, the respondent mother filed an Application in a Case seeking the discharge of supervision orders and ancillary orders as to spend time, changeover and communication by FaceTime and telephone.  The orders also sought that two of the parents should have shared parental responsibility for one of the children.

9. On 15 May 2019, the applicant filed an Application in a Case seeking parenting orders that a child should live with him and spend supervised time with the respondent mother, conditioned upon her enrolling in an alcoholic’s rehabilitation program, completing a parenting program and for the parties to attend a family consultant for the provision of a family report (which had been the subject of an earlier order).  The applicant also sought an interim order that he be reimbursed a sum of $4,025.01 from the net proceeds of sale respecting costs, which he had incurred as a result of the sale of the property.

10. Each of these applications was made returnable in a Duty List week and in those circumstances, a direction was made requiring the parties to file an Outline of Case, indicating the orders which were to be sought.  To some extent those orders were complied with and as a consequence the parties identified the documents upon which they relied for the purpose of their interim applications.  

11. Upon consideration, the parties’ outlines of case identified no less than 40 affidavits or other court documents upon which reliance was placed in the determination of a so-called interim hearing.

12. I record that the parties have been represented at all times throughout the conduct of this proceeding.

13. Despite a request that the matter be stood down, I indicated that the hearing would proceed once the remaining mentions in that Duty List had been addressed.  When those mentions had been considered, counsel for the parties indicated that they had reached an ‘in principle’ agreement as to all parenting matters which were the subject of their interim applications.  On the basis of counsel’s assurance that the parenting matters had been resolved, another 30 minutes was allowed to the parties to complete the minutes necessary to give effect to their ‘in principle’ agreement.

14. Despite those assurances, it emerged that there was some measure of disagreement concerning one aspect of the parenting orders.  Ultimately, those residual issues were resolved.

15. In the course of the hearing that followed, counsel for the respondent mother then made an oral application that there be a distribution as to 50% of the net proceeds of sale to each of the parties.  Though the issue was not discussed, I proceeded on an assumption that the proposal entailed that the ultimate characterisation of such distributions be reserved for trial.  Contextually, counsel for the respondent was invited on no less than three occasions to state her client's position, respecting the applicant’s Application in a Case seeking reimbursement of the sum of $4,025.01.  I was unable to obtain a direct response to that enquiry.

16. Pressed to identify where in any application the respondent had sought relief for an interim distribution of property, it was conceded that no such application was made.  When the oral application for such relief was pressed I refused it.  

17. The proceeding is subject to the operation of the Federal Circuit Court Rules 2001 (Cth), Ch 2 of which regulates family law proceedings. The object of those Rules is to assist the just, efficient and economical resolution of proceedings: r 1.03(1). Practice and procedure is governed principally by those Rules as supplemented by certain of the Family Law Rules: rr 1.05(1), 1.05(3)(a). It is neither just, efficient or conducive to the economical resolution of proceedings that parties should make oral applications for substantive relief, absent proper notice to other parties, who may be affected by them, or unless a proper basis exists for doing so.

18. Absent urgent circumstances, both the parties to any application, and the court, are entitled to reasonable notice of any relief that is to be sought together with appropriate evidence.  The volume of business in this court cannot accommodate applications that have not been brought in accordance with the Rules, on proper notice and which are not supported by evidence.  An affected party is reasonably entitled to file a response to such applications and any answering affidavit.  Parties to other proceedings in the court are entitled to a reasonable opportunity for their applications to be heard, at their scheduled date and time.  The untimely pursuit of oral applications of the kind made in this proceeding served to deny parties to other proceedings that opportunity.

19. Those matters aside it is self-evident that the parties’ relationship was of brief duration and that the net asset pool is very small.

20. It would have been entirely inappropriate to make any order for interim distribution from the net proceeds of sale of property unless and until the affected party had been given adequate notice of the application and proper evidence had been filed to support it.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.

Date: 30 May 2019