Coleman and Coleman
[2019] FCCA 3441
•30 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLEMAN & COLEMAN | [2019] FCCA 3441 |
| Catchwords: FAMILY LAW – Application to set aside property orders made in absence of respondent – consideration of matters relevant to an application under r.16.05 of the Federal Circuit Court Rules – Application dismissed – no order for costs made. |
| Legislation: Family Law Act 1975 (Cth), s.117 Federal Circuit Court Rules 2001, r.16.05 |
| Cases cited: Tate & Tate [2000] FamCA 1040 Xie & Zhao (No.2) [2009] FMCAfam 1303 |
| Applicant: | MS COLEMAN |
| Respondent: | MR COLEMAN |
| File Number: | DGC 2628 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 30 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 30 October 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Taylor |
| Solicitors for the Respondent: | Taylor & Barnes Solicitors |
ORDERS
The application in a case filed on 27 August 2019 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Coleman & Coleman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2628 of 2018
| MS COLEMAN |
Applicant
And
| MR COLEMAN |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The matter before the Court can only be properly understood in the context of its history as an application generally. On 2 August 2018, the applicant husband filed an application in which he sought property and parenting orders. He made allegations of significant drug use on the part of the mother and admitted to past use on his part. Relevantly, for these purposes, he deposed to the fact that there was a relationship from about 2004 to 2017 with two children.
There was a matrimonial home with a net equity of approximately $100,000. There had been a sale of a business in 2017 which had generated a total sale of $96,000 plus $1000 per month for three years with a balance of $24,000 due to be paid in February 2020, and there was also the building in which the business had previously been conducted which was for sale. Furthermore, another property, as I understand it, was asserted to have been sold for $80,000 and the funds largely applied to debts.
The husband also deposed to an inheritance of $96,000 that he had received in about 2015 and he deposed that his superannuation had been almost entirely garnished prior to the commencement of the relationship. The matter was before Judge Harland on 20 August 2018 and the wife was present on that day and self-represented. She had, indeed, been served. A s11F series of interviews was ordered for 22 August 2018, but the wife did not attend.
Accordingly and unsurprisingly, Judge Harland reserved the husband’s costs of the day and ordered the mother to attend Court on an adjourned date of 17 September 2018. She did attend and various procedural orders were made. On 26 October 2018, the matter was before Registrar Kaur for a conciliation conference. Orders were made for the relevant properties to be sold and the funds held in trust pending Court determination. On 15 November 2018, the matter was adjourned to trial on 17 April 2019 for one day, and final parenting orders were made.
On 12 April 2018, the husband filed an amended application seeking the sale of a property at Town A and, essentially, for these purposes, orders in default of compliance by the wife. On 16 April 2019, the wife appears to have filed an unsworn and incomplete version of a further affidavit. On 17 April 2019, the trial did not proceed, although the wife appeared by telephone. The matter was adjourned to trial on 19 June 2019. Once again, the husband’s costs were reserved and fixed and leave was granted to him to proceed on a undefended basis if the wife did not attend.
On 7 June 2019, the Court issued a warrant for possession of the former home on the husband’s application and, thereafter, the husband filed his trial affidavit and financial statement on 3 July 2019. On 19 July 2019, the wife did not attend until after the matter had been disposed of by the Court, and it was not disposed of promptly at the listed time of 10 o’clock. Orders were made which, relevantly, can be described as a split of the real assets that remained to the parties in equal proportion, although, there were some small payments out to the husband of monies held in trust, and 10 per cent of his superannuation was allotted to the wife.
The husband, unsurprisingly, sought and obtained costs orders in his favour including orders for the reserved costs. The wife turned up late. Thereafter, the wife has filed her application in a case on 27 August 2019, and she has filed an affidavit in support. I will read out paragraphs 3 to 9, inclusive:
I have been diagnosed with severe anxiety and severe depression and the same has an impact on my day-to-day life, especially my capacity to meet deadlines and appointments in pressure situation.
On the 18 July 2019 I stayed up all night anxious about the proceedings.
I was anxious about being unrepresented and having to speak in front of his Honour Judge Burchardt.
I was also anxious about proceeding to a final hearing against the respondent because he is so strongwilled.
On the morning of 19 July 2019 I had an anxiety attack that delayed my departure from my house.
When I had the anxiety attack I couldn’t breathe. I was on the floor trying to breathe and I had to calm myself down because I could not function.
I live in Town A and there was a lot of traffic to Dandenong. The distance between Town A and Dandenong is approximately 71 kilometres. My delayed departure due to my panic attack and the traffic resulted in arriving to Court approximately 45 minutes after the hearing.
At paragraph 12, the wife deposed:
I have ongoing and severe mental health issues which impact my day-to-day life. I hope the application in a case is granted and that orders for property matters between the respondent and I can be made pursuant to my affidavit filed 16 April 2019 on page 8 paragraph 41.
In the affidavit, the wife pointed to the prejudice to her that she asserted would obtain if the orders made in July were not set aside. She alleged non-disclosure by the husband. She alleged a debt to her parents of $18,500 and a debt to her sister of $2500. She sought reconsideration of the costs orders previously made. She deposed to a credit card of $12,000. She deposed to ongoing anxiety and depression and the fact that she has the care of her children full-time.
It should be noted that there is no evidence to support the alleged debts to her parents and aunt. Nor, indeed, have these, so far as I can see, been raised in any anterior way in the proceeding. Today, the wife was still half an hour late, and I have to say that her submissions were not entirely easy to understand. The matter falls to be considered pursuant to rules 16.05 of this Court’s rules which is, of course, a rule couched in discretionary terms. I have been referred to the case of Xie & Zhao (No.2) [2009] FMCAfam 1303 where Federal Magistrate Altobelli, as his Honour then was, at paragraph [6], extracted a number of observations previously made by Federal Magistrate Jarrett as follows:
From the above-mentioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):
a) The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation;
b) There are three criteria, each of which should usually be demonstrated before a judgement or order is set aside under r.16.05(2)(a), namely:
i) a reasonable explanation for the applicant’s absence at the trial or hearing;
ii) material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside, and
iii) no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
c) Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i) whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii) delay, if any, in bringing the application to set aside and whether, if during the period of delay, the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii) the conduct of the applicant since the judgment or order sought to be set aside was made.
The husband also relies on the case of Tate & Tate [2000] FamCA 1040 in support of the submission that there is considerable significance to the desirability of finality in litigation. The copy I have been given is not paginated, but in the head note, as I think it must be, prior to the introductory part, the Court noted:
In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as the paramount consideration.
With respect, I entirely endorse that proposition.
Turning to the question of the explanation for the wife’s non-attendance at trial, there is no medical evidence before the Court to support the asserted matters, but I have to say that the wife’s manner suggests to me that she is telling the truth. She is simply insufficiently able to organise her affairs to get to the Court on time. This was the second trial date and the third absence in the course of the proceedings on the wife’s part. Putting the matter shortly, I think there is no guarantee that the wife will ever be able properly to conduct her case in the light of the difficulties she seems to face.
Next matter which is, in my view, a significant matter, is whether there are arguments available to her to produce a different result. This is a small pool of approximately $53,000 net of costs, together, of course, with the ongoing $1000 per month until February next year when a further $24,000 will be available. The wife seeks 65 per cent which on the figures presently to hand of the $53,000 would produce a result of $34,450 to her. The husband seeks 50 per cent division which would give her $27,500. There is less than $7000 between the two figures. The wife would plainly have to pay the cost of today which would be not less than $3000. The amount, therefore, in dispute is very small.
True it is, of course, that the wife has the two children in her care, but it is noteworthy that the husband contributed an inheritance of $96,000 which is more than the $53,000 and the $24,000 due next February put together. At the level of assessment that this exercise involves, the matters raised by the wife are not compellingly likely to lead to a different result.
The final consideration is prejudice to the husband. He would face, of course, even if he was to be paid the costs of today, the costs and of a further hearing. The pool is extremely limited. It is entirely desirable that the stress of this litigation come to an end for all concerned. Bearing in mind all these relevant considerations, it is quite clear that it is inappropriate to exercise the jurisdiction to set aside the orders made in July. The application in a case is dismissed.
RECORDED : NOT TRANSCRIBED
The respondent to the application in a case seeks costs. The Court is required, pursuant to section 117 of the Family Law Act 1975 (Cth) to have regard to a number of considerations, including the parties’ financial positions. That of both parties is difficult and, in the case of the wife’s, in some ways, very difficult. While her application has not been successful, it was not so devoid of potential merit that, in my view, it is appropriate to make any order for costs of today. I decline to do so.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 27 November 2019
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