Doon & Jing (No 2)
[2023] FedCFamC1F 435
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Doon & Jing (No 2) [2023] FedCFamC1F 435
File number(s): BRC 16456 of 2020 Judgment of: HOWARD J Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – PROPERTY – Where the applicant commenced parenting proceedings – Where the respondent sought property settlement orders in response – Where the respondent subsequently failed to comply with orders for disclosure and did not appear before the Court – Where the applicant sought no property orders – Where the respondent’s application for property settlement orders is dismissed for want of prosecution. Legislation: Family Law Act 1975 (Cth) s 79 Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 6 April 2023 Place: Brisbane Counsel for the Applicant: Ms McLennan Solicitor for the Applicant: Dante Chen Lawyers Counsel for the Respondent: Mr Fronis Solicitor for the Respondent: Aston Lawyers ORDERS
BRC 16456 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DOON
Applicant
AND: MS JING
Respondent
order made by:
HOWARD J
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS:
1.That Aston Lawyers have leave to withdraw as legal representatives for the respondent wife.
2.That the application for property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) contained in the Response filed 15 February 2021 be dismissed.
3.That the Applicant may file and serve by no later than 4.00pm on 9 June 2023:
(a)An application for costs;
(b)An affidavit in support; and
(c)Any written submissions upon which he wishes to rely.
4.That the Respondent may file and serve by no later than 4.00pm on 23 June 2023:
(a)A response to the application for costs;
(b)An affidavit in support; and
(c)Any written submissions upon which she wishes to rely.
NOTATION
A.That if either party requests to make an appearance before the Court by way of email to …@..., the Court shall consider listing the application for costs for hearing before the Honourable Justice Howard.
B.That in the event neither party makes such a request, the application for costs shall be determined in chambers.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doon & Jing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
A. These reasons were delivered ex tempore on 6 April 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The applicant before the Court is Mr Doon; the respondent is Ms Jing. Dante Chen Lawyers appear for the applicant husband. When the applicant commenced proceedings on 20 November 2020, he was seeking parenting orders. The wife then, in a Response filed 15 February 2021, sought property orders. In relation to the parenting proceedings, luckily for these two little children, the parents reached an agreement on a final basis and an order was made on 9 March 2023 by a Judicial Registrar. Those orders, I note, state that these little twins are to live with the husband (their father). The husband has sole parental responsibility. The husband lives in Australia. The wife lives in Country B. The parenting proceedings were brought to an end by the making of the consent orders on 9 March 2023.
In relation to the wife’s application for property orders – that is, a property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”) – in my view, those proceedings should be dismissed for want of prosecution and the reasons are as follows. There have been several orders not complied with by the wife, including an order made on 28 February 2022 by a Judicial Registrar. That order required the parties to provide full disclosure. The wife did not fully comply with that order. On 4 May 2022, there was supposed to be an appearance in front of the Judicial Registrar by Microsoft Teams, but the wife failed to appear. On 16 January 2023, I made comprehensive orders in relation to disclosure and the wife was required by order 3 to provide disclosure of documents. That order in particular states:
“3. That by no later than 4.00pm on 13 February 2023, the wife is to disclose to the husband the following documents in a form that is legible and comprehensible:
a.Bank Statements for [L Bank] Saving Account No. […20] for the period from 12 months before the date of separation to 13 October 2022;
b.Bank Statements for [K Bank] Saving No. […26] for the period from 12 months before the date of separation to 13 October 2022;
c.Bank Statements for [K Bank] Foreign Currency Account No. […02] for the period from 12 months before the date of separation to 13 October 2022;
d.Bank Statements for [H Bank] Active Savings […5-7] for the period from 22 December 2020 to 13 October 2022;
e.Bank Statements for [H Bank] Active Savings […5-5] for the period from 12 months before the date of separation to 13 October 2022;
f.Bank Statements/financial documents for all accounts with [J Bank] for the period from 12 months before the date of separation to 13 October 2022;
g.Bank Statements/financial documents for all accounts with [M Bank] for the period from 12 months before the date of separation to 13 October 2022;
h. Bank Statements/financial documents for all accounts with [Country B Financial Corporation] for the period from 12 months before the date of separation to 13 October 2022;
i.Bank Statements/financial documents for all accounts with the [Country B Life Insurance Association] for the period from 12 months before the date of separation to 13 October 2022;
j.Bank Statements/financial documents for all accounts with [K Bank] Trust Property Account for the period from 12 months before the date of separation to 13 October 2022; and
k.Bank Statements/financial documents for all accounts with [L Bank] Trust Property Account for the period from 12 months before the date of separation to 13 October 2022.”
In addition, the Court then made the following orders:
“4.That by no later than 4.00pm on 13 February 2023, the wife is to file an Affidavit confirming that she has complied with paragraph 3 of this Order.
5.That in the event that the wife fails to comply with paragraphs 3 and 4 of this Order, the Court will consider listing the property matters for an undefended hearing.
6. That costs are reserved.”
The Court contemplated in the January 2023 order that, if the wife did not comply with the disclosure orders and if the wife failed to file an affidavit in accordance with paragraph 4 of that order, the Court would consider listing the property case for an undefended hearing. I would have done that except, today, the wife has not appeared. Now, Mr Fronis of counsel attended court and he is instructed by Aston Lawyers. Aston Lawyers have intended filing a Notice of Ceasing to Act, but because McInnes Wilson for some unknown reason remained as the solicitors on the record for the wife, even though they in fact have not been acting on behalf of the wife for some considerable time, I granted leave to Aston Lawyers to withdraw as the lawyer for the wife. Even though they were not officially on the record, they had been acting for her. I granted leave to Mr Fronis to withdraw, and he did so. There is no appearance today by the wife. There has been no compliance by the wife with the orders that were made by this Court in January 2023.
Noting her noncompliance with the orders made in January 2023, her nonattendance today and her failure to provide instructions to any lawyers in relation to the property proceedings, the only conclusion that I can come to is that the wife in this case has failed to prosecute her claim for property orders under s 79 of the Act. Accordingly, the wife’s claim for property settlement orders should be dismissed for want of prosecution. What that means, of course, is that the Response in which she has sought those orders will be dismissed. There is no utility whatsoever in proceeding to an undefended hearing in circumstances where the husband does not seek any property order in this jurisdiction and the wife, who did seek the property orders, has failed to prosecute her claim. It would be a complete waste of court resources and a waste of unnecessary costs for the husband. Accordingly, the correct approach in my view is to dismiss the wife’s claim for want of prosecution.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 29 May 2023
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