Britten and Britten

[2018] FamCA 1054

FAMILY COURT OF AUSTRALIA

BRITTEN & BRITTEN [2018] FamCA 1054

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Britten

RESPONDENT: Mr Britten

FILE NUMBER: MLC 9151 of 2018

DATE DELIVERED: 12 December 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 December 2018

REPRESENTATION

SOLICITOR ADVOCATE FOR

THE APPLICANT:

Ms Radman

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

THE RESPONDENT: No Appearance

Orders

1. All extant applications are adjourned to the Judicial Duty List on 18 March 2019 at 10:00 am.

2. This order be served on the respondent by electronic text message to … and an affidavit as to such service shall satisfy all requirements of service on the husband under the Family Law Rules 2004 (Cth).

3. The wife have leave to file and serve an Amended Initiating Application and Affidavit as to her evidence for the purposes of a final hearing in relation to property issues by 4:00 pm on 1 March 2019 and such documents be served according to the provisions of paragraph [2] of these orders.

4. Subject to any order of the trial judge to the contrary, the wife have leave to proceed with her application for the alteration of property interests on the return date.

5. The wife’s costs are fixed in the sum of $1,330 and are reserved to the return date to enable the wife to prove that the husband knew of the hearings on 24 October 2018 and 5 December 2018.

6. The reasons this day be transcribed, and when settled, placed on the Court file and made available to the parties.

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 Britten & Britten 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 MELBOURNE

FILE NUMBER: MLC 9151  of 2018

Ms Britten

Applicant

And

Mr Britten

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Before the Court is a property application begun by Ms Britten (“the wife”) on 9 August 2018 to which Mr Britten (“the husband”) is the respondent. While the application initially also sought parenting orders (despite the husband filing no material), there was a consent arrangement of a final nature between the husband and the wife and orders were made by a Registrar on 12 September 2018.  On the same date and obviously in the absence of the husband, the Registrar directed that the husband attend on the next return date which was to have been 24 October 2018 and that he file material.  He neither filed material nor attended on that return date.

2. On 24 October 2018, again in the absence of the husband, the Registrar made an order that the wife could make an application at the next return date, being 5 December 2018, to proceed with her property application on an undefended basis. That was on the condition that the husband was served electronically to an email address. I am told from the bar table that communication via the email address has been unsuccessful and it appears to have been closed.  The only form of communication between the parties now seems to be by text messages. The wife has his mobile telephone number and she seems to think that he is in Western Australia.

3. Oddly enough, the parties had agreed to equal shared parental responsibility and also for specific time between the husband and the children and those orders are honoured in the breach. What is now being proposed is that the matter be adjourned to early in the New Year so that the wife can make some further inquiries and then endeavour to proceed to on an undefended basis. Whilst the evidence is lacking as to whether or not the husband has been served, one can only presume from what I have been told that he is well-aware of these proceedings because there are electronic communications by text between the parties themselves.

4. On the assumption that the husband is at least aware of these proceedings, he has now failed to attend on 12 September, 24 October and 5 December 2018.

5. The property is very modest, it being property in country Victoria and the value seems to be relatively small. Most importantly, the wife asserts that she is the only legal owner of that property.  To the extent that she then needs orders, one could only presume that she would bring that sort of application if the husband was making some claim for equitable relief.  On the third occasion, he has failed to do so.  One wonders why there is a necessity for any orders at all.

6. It seems that the parties put approximately $250,000 into a business in 2017 or thereabouts and nothing has come from that. It would appear that that money is lost. Otherwise, the husband seems to have some superannuation, although the details of that are at the moment unclear, and will no doubt, be cleared up by the inquiries the wife is now going to make.  It is also asserted that the husband has used joint monies to acquire a truck and a motorbike, but, no doubt, some further inquiries can also be made about those matters.

7. In my view, this is a case where the wife’s application for costs ought not to be reserved, except for one particular purpose and that those costs should be, indeed, fixed.  I have fixed them in the sum of $1,330 for both the hearing on 24 October and today on the basis that those are sums wasted.

8. Section 117 of the Family Law Act 1975 (Cth) provides that in proceedings under the Act that each party bear their own costs unless there are circumstances to justify a departure from that principle. In circumstances where someone fails to fulfil their obligations, not only to attend Court when they are ordered and file proper material but also make disclosure, that is, those are justifiable circumstances to make an order for costs here.

9. The only reason why I propose to reserve them to the return date is that I am not confident that the wife has, at this stage, been able to prove that the husband was aware of the hearing of 24 October and again, today, but no doubt, she can establish that by indications that she sent electronic messages to the husband and he ignored them.

10. Accordingly, I will make orders as set out at the commencement of these reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 December 2018.

Acting Associate:

Date:  12 December 2018