DANE & KABRIG

[2015] FamCA 214

FAMILY COURT OF AUSTRALIA

DANE & KABRIG [2015] FamCA 214

FAMILY LAW – FINANCIAL PROCEEDINGS — dismissal for want of prosecution

APPLICANT: Ms Dane

RESPONDENT: Mr Kabrig

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 608 of 2012

DATE DELIVERED: 3 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Turner

SOLICITOR FOR THE RESPONDENT:

GPZ Legal

South Yarra

Orders

IT IS ORDERED THAT

1.The wife’s application filed 25 August 2014 be and is hereby dismissed and removed from the matters awaiting finalisation.

2.The applicant wife pay the costs of the respondent husband of and incidental to the application filed on 25 August 2014, such costs to be calculated on a party/party basis in accordance with the Family Law Scale of Costs and be in a sum to be agreed and if no agreement as assessed in accordance with the Rules of Court.

3.That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 608 of 2012

Ms Dane

Applicant

And

Mr Kabrig

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me in the judicial duty list having been adjourned here by Registrar Mestrovic on 14 November 2014.  The only application before the Court is that filed by the wife on 25 August 2014.  That was filed following the finalisation of divorce proceedings which had been dealt with by Riethmuller FM (as his Honour was then was) in May 2012, and been the subject of an appeal by the wife.  The appeal was opposed and was dismissed by Strickland J on 2 August 2013.

2. The orders sought by the wife in the pending proceedings now are as follows:

   1)Property settlement should be done in Country B as the case is already ongoing in Country B;

   2)Justice, appropriate property relief should be provided by the honourable court in case negotiations fail;

   3)Respondent’s ex-lawyer (GPZ Legal) cost of previous cases to be deducted from property settlement as I am on Centrelink.

3. There is a fairly discursive set of statements appearing under the heading, “Interim and Procedural Orders Sought”.  The context does not reflect orders that can be made by the Court in those terms. 

4. Today the husband is represented by Mr Turner of counsel.  Mr Turner has produced to the Court a copy of the back sheet of counsel who appeared on 14 November 2014 which confirms that the wife did, on that day, appear on her own behalf.  That is consistent with the sealed copy order and the notes of the registrar, Mrs Mestrovic. 

5. On 14 November 2014 the applicant wife was required to file and serve an amended application initiating proceedings setting out with precision the orders she seeks from this Court together with a statement of financial circumstances and an affidavit in support.

6. Upon the applicant complying with that order the respondent husband was to file and serve, by not later than 1 March 2015, a response and a financial statement and an affidavit in support.  There were a series of notations and the notation numbered 5 reads as follows:  “The applicant [wife] understood that if she fails in her obligations under paragraph 2 of these orders the respondent is not obliged to file his material and her application can be dismissed (emphasis added).”

7. The applicant wife did not comply with the orders requiring her to file an application setting out with precision the orders she seeks, or a financial statement, or any affidavit in support by 16 January 2015 or to date.  Accordingly, it has not been incumbent upon the husband to file any documents pursuant to paragraph 3 of the orders made by Registrar Mestrovic. 

8. Today Mr Turner of counsel appears on behalf of the husband and seeks that the application of the wife be dismissed.  He indicates that his client is generally in agreement that there should be proceedings on only one continent, and that the wife seems intent on pursuing proceedings in Country B, so it is appropriate that there be no proceedings here.

9. The wife does not appear today personally, or by a legal representative.  The matter appears in the law list today, and the wife was called at the door of the court when this matter was reached at approximately 10.20 am, and there was no response. 

10. This is a case of private law.  It is incumbent upon a litigant to prosecute applications which he or she puts before the Court.  I am satisfied that the wife has failed to do so.  I am satisfied, by looking at the application which she does have before the Court, that it is flawed inasmuch as it does not comply with the rules of court, the most basic of which is that an application set out the orders she, in fact, seeks, which are orders that it is competent for the Court to make, and which the husband could understand he has to meet.

11. Her application itself is flawed and she has not availed herself of the opportunity to make her application more precise and to make it competent in accordance with the Family Law Rules 2005 (Cth).  I will accede to the request that the wife’s application be dismissed and will order accordingly. 

12. The husband makes an application for costs.

13. Section 117 of the Family Law Act 1975 (Cth) makes provision for orders for payment of costs. Section 117(1) provides that, subject to subsection (2) and other sections which are not relevant for today’s purposes, that “Each party to proceedings under this Act shall bear his or her own costs.” Section 117(2) provides that if the Court is of the opinion that there are circumstances which justify it doing so, the Court may, subject to sections referred to therein “make such order as to costs and security for costs ... as the court considers just.” In considering what, if any, order ought to be made for costs I must take into account the matters set out in s 117(2A).

14. Accordingly, the first step is that I must be satisfied under a 117(2) that there are circumstances that justify the court making an order as to costs. On my reading that is a different exercise than that set out under s 117(2A) which provides factors which must be taken into account once it is determined that an order ought to be made. I am satisfied that the circumstances of the wife having filed an incompetent application and then failing to prosecute it, and failing to take up the opportunity to remedy defects in her application, justifies a costs order being made in this case.

15. Turning to s 117(2A), in considering what costs order ought to be made I have regard to the financial circumstances of each of the parties in only the most general sense because, as should be apparent from these reasons, neither has filed a financial statement. I’m not addressed specifically on the point, but few people in our community, or even in Country C where the husband is, can afford to incur legal costs unnecessarily. The husband is not in receipt of legal assistance or a grant of aid, and I doubt that the wife is, but make no finding to that effect.

16. I take into account the conduct of the parties in relation to the proceedings including their conduct in relation to pleadings, particulars, and discovery.  The wife’s application is not a competent application.  She was provided with an opportunity by orders made on 14 November 2014 to cure it, and she has failed to do so.  This is a factor that weighs in favour for an order for costs being made which will reimburse the husband for some of his expenses.

17. These proceedings were not necessitated by the failure of a party to comply with previous orders of the court, although Mr Turner’s appearance here today was a matter set in place on 14 November 2014 to provide the wife with an opportunity to cure defects in her application, and the proceedings could not have been finalised without there having been an appearance by or on behalf of the husband.  I have dismissed the wife’s application I am satisfied that she has been wholly unsuccessful in these proceedings. 

18. There are no offers in writing to which I have been directed.

19. I have asked Mr Turner about the quantum of the costs he claimed, and, unfortunately, he is not in a position to tell me.  It would have been appropriate, in my view, to fix the amount of costs payable by the wife to the husband to obviate the need for the parties or practitioners on their behalf to attend to any costs assessment in the court.  However, given that Mr Turner can’t tell me what orders he seeks be made, and those who instruct him have not prepared any sort of itemised bill, I will just make a general costs order, it being clear that the costs should be calculated on a party/party basis and payable in accordance with the Family Law scale as pertains to those costs from time to time.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 March 2015.

Associate:

Date:  31 March 2015