Brodie & Whang

[2021] FamCA 344

FAMILY COURT OF AUSTRALIA

Brodie & Whang [2021] FamCA 344

File number(s):	BRC 1464 of 2020
Judgment of:	BAUMANN J
Date of judgment:	11 May 2021
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – Where the Applicant had filed a Notice of Discontinuance in respect of his Application – Where neither party appeared at the Case Management Hearing – Orders made that all Applications be dismissed and there be no order as to costs of the Application.
Number of paragraphs:	11
Date of hearing:	11 May 2021
Place:	Brisbane
Applicant:	No appearance
Respondent:	No appearance

ORDERS

BRC 1464 of 2020

BETWEEN:

MR BRODIE

Applicant

AND:

MS WHANG
Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	11 MAY 2021

THE COURT ORDERS:

1.That the Court noting the exchanges on 26 March 2021 between the Bench and the Applicant and further noting the Notice of Discontinuance filed by the Applicant on 19 April 2021, all Applications before the Court are dismissed.

2.That there be no order as to costs of this Application.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brodie & Whang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. This is a matter that involved an Application by the Applicant Mr Brodie, an unrepresented litigant, against his former partner, Ms Whang.  The history of the matter reveals that a complex multi-country relationship began between the parties in September 2008 and finalised in August 2019, with four children being born during the relationship and now ranging in age from 12 years to three, and who had been born variously in either the United Kingdom or Canada.  When the matter was last before the Court, the father appeared in person and there was no appearance by the mother.

2. Mr Brodie appeared to be a highly intelligent person, very upset by the breakdown of his relationship and the loss of time with his four children.  The parties were not married and therefore an issue that arose in the case was whether there had been sufficient cohabitation in Australia, as required by the Act, to have found the jurisdiction of the Court for property alteration.  The record will show that on the last occasion, 26 March 2021, I spent some time considering the father’s evidence at its highest to try to determine if there had been more than two years of cohabitation in Australia between September 2008 (when the relationship began in B City), and when it ended in Australia in December 2014.

3. There is no doubt on the evidence, and Mr Brodie did not contest, that after December 2014 he had lived in Australia and the mother had not returned to Australia and has, since December 2014, over six years ago, continued to reside in Canada with the children.  In March 2015 until December 2019, Mr Brodie says that the relationship took place and continued in Canada and during that period he was able to enter and re-enter Canada on a six-month visa, but having to leave the country so as to renew it on a six-monthly basis.  The youngest child, X, was conceived during this period; that child being born in 2017.

4. It is also clear that certainly by September 2019 the relationship had broken down finally and the mother had obtained in Canada a form of domestic violence order.  The provisions of the Act that require the Court to be satisfied that “both parties to the de facto relationship were ordinarily resident during at least one third of the de facto relationship” in Australia.  This enlivens the Court’s jurisdiction.  Having gone through the dates with the father at its highest, it is apparent to me that there was slightly less than one third of the relationship in Australia.

5. In many ways the father’s Application, born out of the frustration of not being successful in Hague Convention proceedings.  As a result of an Order made by the Superior Court on 1 June 2020, which found that the children were habitually resident in Canada and not Australia, the father being an Australian citizen, has maintained the ongoing litigation.  The current Application was filed by the father on 10 February 2020 in the Federal Circuit Court of Australia.  Judge Tonkin transferred the proceedings to the Family Court of Australia on 19 August 2020, noting “that the proceedings in Canada are likely to involve a financial aspect involving a forum non conveniens argument”.

6. When the father was before the Court on the last occasion he explained to the Court that there was no right to property division orders for a de facto relationship in Canada.  That was the reason why he has commenced proceedings in this country, as a resident citizen.  The Respondent, in her Response, said that the father had not paid child support since separation in August 2019.  The father said he has not had the capacity to do so.  There is also a cost order against the father in Canada totalling $26,500, made on 13 August 2020.

7. I discussed with the father on the last occasion, again, he being unrepresented, the nature of his amended Initiating Application, filed 8 May 2020, which sought the following orders:

   1.An order for the Respondent to pay the Applicant $20,000 for the final division of all assets to be paid with [sic – within] 12 months of the date of the order.

   2.An Order that any proceeds from the division of assets be withheld until any outstanding costs orders are paid or subtracted from the proceeds if not paid within 30 days of the order.

   (As per original)

8. As noted, the Application, amended by the father, was amended before the cost order was made in August 2020.

9. Noting a degree of futility in the Application, it was still a matter, in my view, for the Court to be satisfied as to its jurisdiction.  The father’s case outline, filed 20 March 2021, was a considered document and I discussed with the father on the last occasion some difficulties with that argument.  Having made various observations to him, he indicated he would like an opportunity to consider whether he wished to proceed with his Application.  As I say, I regarded his Application as genuine, but in many ways fuelled by the great sadness he feels in not spending time with his children.

10. I am satisfied that after consideration of the matters in March and exchanges between the Applicant and the Bench in Court, the Applicant did, on 19 April 2021, file a Notice of Discontinuance in respect of his Application.  He confirmed, at item 4, that he wished to discontinue the whole of the Application.  In the circumstances it is appropriate that all Applications be dismissed and there be no orders as to costs.

11. The order of the Court is, therefore, as follows:

    (a)That the Court noting the exchanges on 26 March 2021 between the Bench and the Applicant and further noting the Notice of Discontinuance filed by the Applicant on 19 April 2021, all Applications before the Court are dismissed.

    (b)That there be no order as to costs of this Application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       28 May 2021