Epworth and Epworth

[2009] FamCA 294

FAMILY COURT OF AUSTRALIA

EPWORTH & EPWORTH [2009] FamCA 294

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

Brown & Brown (2004) FamCA 1067

APPLICANT: Mr Epworth

RESPONDENT: Ms Epworth

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9472 of 2007

DATE DELIVERED: 15 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G. Bonsall

SOLICITOR FOR THE APPLICANT: Madisons Lawyers

SOLICITOR FOR 

KENNA TEASDALE:

Mr S Gregory

THE RESPONDENT WIFE No Appearance

THE INDEPENDENT CHILDREN’S LAWYER No Appearance

Orders

1. That all outstanding applications be adjourned for final hearing before me as the third case (as at this time) in the list of defended matters for the period of ten days commencing on 6 August 2009 at 10.00am as a one day matter.

2. That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.

3. That by 4 pm on 26 June 2009 the applicant file:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day; and

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

4. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 26 June 2009.

5. That by 4 pm on 17 July 2009 the respondent file:

   (a)an amended response setting out with precision what orders are being sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

6. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

7. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

   (a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

   (b)refer the case to the trial judge for directions as to its future management; or

   (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

   (d)return the case to the Registrar’s docket on a date to be fixed for further management

   AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

8. That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 3 August 2009 the following:

   (a)a concise set of orders to be sought if different from those already filed;

   (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

   (c)a list of assets and liabilities; and

   (d)a bullet-point summary of argument in relation to the issues in dispute.

9. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

10. That the service of these orders and all future documents in the proceedings be arranged by the husband by post addressed to the wife at B Street, C.

11. That my reasons this day be transcribed and a copy of the reasons be forwarded to the wife by the husband in accordance with paragraph 15 of these orders.

AND THE COURT NOTES

A.That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

IT IS NOTED that publication of this judgment under the pseudonym Epworth & Epworth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9472 of 2007

MR EPWORTH

Applicant

And

MS EPWORTH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application by the husband filed on 6 March 2009 to proceed with his application for final orders on an undefended basis because the wife has failed to participate in the proceedings effectively since 2008 and in particular, at that time, in relation to parenting matters.

2. There is an Independent Children's Lawyer in the proceedings but she has not attended today.

3. In relation to the application and affidavit filed on 6 March 2009, I am satisfied that they have been brought to the wife's attention in the same way that previous proceedings have been brought to her attention in the proceedings on 12 December 2008.  Senior Registrar FitzGibbon made an order that service of documents in relation to the parenting proceedings be made available to the wife by being left for her at B Street, C, on the front porch of that property or if that was not possible, in the letterbox or other secure location where it would come to the attention of the wife.

4. When the matter came on for hearing on 10 February 2009 before Registrar Kaur, she made an order that the solicitor for the husband notify the wife of these orders within seven days.  I am not entirely sure that that is an order for substituted service, so to that extent, I will make it clear in the orders that I am about to pronounce that in future, any documents are to be served upon the wife by post at the address of B Street, C.  In relation to future proceedings where proof of service is needed, an affidavit should be filed by the solicitor for the husband indicating that service has occurred in that way.

5. The husband's application today, in addition to seeking to proceed on an undefended basis, also sought in the alternative that a case guardian be appointed for her.  To that extent, I note that the affidavit material shows that a solicitor well known to the court had been approached and has indicated a willingness to take on that role. 

6. Rule 6.08 of the Family Law Rules provides that a child or a person with a disability may start, continue, respond to or seek to intervene in a case only by a case guardian.  The dictionary of the Family Law Rules sets out that a person with a disability is described as one who, because of mental or physical disability, does not understand the nature or possible consequences of a case or is not capable of adequately conducting or giving adequate instruction for the conduct of the case.  Notwithstanding the approach of the wife, I could not find that to be the case here.  It may be that she just does not wish to participate.

7. It is a very serious step in any litigation to preclude someone from participating in proceedings that may have a dramatic effect on that person's life.  What I propose to order is that the trial date be fixed, leaving the wife with no misapprehension about her right to participate, providing she complies with the orders that I have now proposed to make.

8. In that setting, the husband pursues an order for the final hearing to proceed even at that stage on an undefended basis.  It is significant to point out that the wife has had lawyers acting for her throughout the proceedings until recently and in that regard, I note Mr Gregory has indicated this morning that he now has actions in the state Magistrates Court to pursue his legal fees and he will ultimately be intervening in these proceedings to protect his firm's costs.

9. The wife should be under no misapprehension.  The power to proceed to hear a case on what is often described as an undefended basis is set out in Rule 11.02(2)(c) of the Family Law Rules and that provides that if a party does not comply with the rules, the regulations or a procedural order, the court may, amongst other things, determine the case as if it were undefended.

10. The Full Court has traditionally said in relation to an undefended hearing, the attainment of justice is still the overriding objective.  What the wife needs to take notice of is the fact that the court may proceed in her absence unless she takes a course of action to assist in the determination of the matter.  That is particularly so in relation to not only parenting matters but also property matters where there is an obligation to make full and frank disclosure.

11. O'Ryan J in the case of Brown & Brown [2004] FamCA 1067 made it very clear that the court ought not treat regulation 11.02 as something that requires exceptional circumstances. His Honour went on to say that no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court's processes through disregard of and deliberate non-compliance with, the orders and directions will attract other than the strongest measures from the court.

12. I propose to list the matter and set a timetable for the case to proceed.  If the wife does not file the material sufficient to satisfy the existing orders of the court within those time frames unless she can convince me by some strong material otherwise, it is possible that I will make the order that the matter proceed on an undefended basis on the hearing date.

13. Just what that means and its extent will depend upon what course of action the wife follows until the mention day and what I hear from both parties. 

14. I am making these reasons available on an extempore basis today so that they can be brought to the attention of the wife for the purposes of her at least being aware that she ignores the processes at her own peril.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  22 April 2009