Hiron & Tourle
[2021] FCCA 1270
•24 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Hiron & Tourle [2021] FCCA 1270
File number: MLC 10835 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 May 2021 Catchwords: FAMILY LAW – Parenting – property – where father seeks for matter to proceed undefended – where mother has previously failed to participate in proceedings – where mother has now attended – where children are spending no time with the mother – allegations of family violence – matrimonial home division required – time allowed for mother to file – orders made. Legislation: Family Law Act 1975 (Cth) 64B
Family Law Rules 2004 (Cth) rr 1.04, 11.02
Federal Circuit Court Rules 2001 (Cth) rr 1.03, 1.05, 1.06
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Rice & Asplund [1978] FamCAFC 128
Singam & Moffrey (2015) FLC ¶93-641
Zane & Allan (2008) FLC ¶93-378Number of paragraphs: 36 Date of hearing: 24 May 2021 Place: Melbourne Counsel for the Applicant: Ms K Paull Solicitor for the Applicant: Cohrssen Partners Pty Ltd The Respondent: Appeared in Person Solicitor for the Independent Children's Lawyer: Mr D Lampe of Lampe Family Lawyers ORDERS
MLC 10835 of 2020 BETWEEN: MR HIRON
Applicant
AND: MS TOURLE
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 MAY 2021
THE COURT ORDERS THAT:
1.All extant applications be adjourned to a date to be fixed and to be relisted on no more than 14 days' notice by the Court.
2.Any further affidavit to be filed by the Mother within 28 days of this day (21 June 2021) including:
(a)Any affidavit or report relating to the Mother's mental health;
(b)Any affidavit relating to the value of the home the parties resided in during their relationship at A Street Suburb B;
(c)Any affidavit relating to her financial circumstances and/or relevant to the issue of property determination.
3.The Father's costs for this day be reserved.
AND THE COURT NOTES THAT:
A.The Father's application for the matter to proceed undefended has not been dealt with.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 under the pseudonym Hiron & Tourle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
BACKGROUND
These are the settled ex tempore reasons. The applicant father in this matter is Mr Hiron (‘the Father’) and the respondent mother is Ms Tourle (‘the Mother’). The matter concerns both property and parenting matters. The parents have two children, X, who is aged 12 and Y, who is aged 10 (‘the children’). They commenced cohabitation in 2009 and separated in December 2018 some nine years later. The third party to the proceedings is the Independent Children’s Lawyer.
In this matter I have an application listed before me where until this day the Mother has not filed any material and has not shown any inclination to participate in the proceedings. There have been five occasions where the Mother has had the opportunity to participate in the proceedings. At the first return of the matter on 10 November 2020, the conciliation conference on 3 February 2021 and the s11F child inclusive conference on 22 March 2021 and then the hearing on 15 April 2021 when the Father pressed for an order for sole use and occupation of the former matrimonial home, and then again today.
I am quite comfortable that the Father's solicitor and the Independent Children’s Lawyer have gone to significant lengths to bring the proceedings to the attention of the Mother.
The affidavit of service of Mr C filed 21 October 2020 sets out:
“I had the following conversation with the person at the time of service:
I asked the person served “are you Ms Tourle, the person named as the Respondent in this action?” to which the reply was “yes”.
In an affidavit filed 11 May 2021, the Father’s solicitor deposed including the following:
…
i.On or about 15 January 2021, I mailed Ms Tourle at the Property and reminded her that the Conciliation Conference was on 3 February 2021, confirmed that the Conciliation Conference was conducted by Microsoft Team, enclosed an email from the Federal Circuit in relation to information about the upcoming Conciliation Conference, and enclosed the email from MA Legal in response providing the parties’ email addresses.
ii.On or about 25 January 2021, I mailed a letter by express post to the Property addressed to Ms Tourle enclosing Mr Hiron’s Outline of Case. Ms Tourle did not provide hers. Ms Tourle did not attend the Conciliation conference.
e.Justice O’Shannessy on or about 10 November 2020 made orders for the parties to attend a Child Inclusive Conference (“CIC”) on 22 March 2021. On or about 17 March 2021, I emailed [email protected] and [email protected] (“both emails”) and mailed by express post to the Property a letter reminding Ms Tourle about the upcoming CIC. On or about 23 March 2021, the Family Consultant produced a Child Inclusive Conference Memorandum to the Court and noted that Ms Tourle did not attend.
8.On or about 5 February 2021, I served the sealed orders by Registrar Moser dated 3 February 2021 on Ms Tourle by way of express post to the Property and emailed to both emails and text messaged to her mobile phone on xxxx xxx xxx ("text message").
9.Registrar Moser on or about 3 February 2021 made orders for the second time for Ms Tourle to file and serve a Response to my Initiating Application filed 6 October 2020, an Affidavit, a Notice of Child Abuse, Family Violence or Risk and a Financial Statement by 17 March 2021. Ms Tourle did not file any of the documents.
10.On or about 15 February 2021, I served a copy of Mr Hiron's sealed Application in a Case and sealed supporting Affidavit on Ms Tourle and reminded her by cover letter of the upcoming Mention by express post the Property and email to both emails.
11.On or about 9 April 2021, I sent a cover letter to Ms Tourle by way of express post to the Property and email to both emails reminding her of her upcoming Mention.
12.On or about 19 April 2021, I served on Ms Tourle Justice O'Shannessy's Interim Orders made 15 April 2021 by way of express post to the Property, email to both emails, and text message.
13.On or about 3 May 2021, I served on Ms Tourle Mr Hiron's Amended Initiating Application, Affidavit of Applicant, and Updated Financial Statement by way of express post to the Property and email to both emails.
14.All emails sent to [email protected] bounced. All emails sent to [email protected] did not bounce. All text messages sent to Ms Tourle's mobile phone on xxxx xxx xxx did not bounce. All letters mailed to A Street, Suburb B were not returned.
The Mother has participated in the proceedings today. Firstly by sending an email which is exhibit M1 24/05/2021 at 9.36am this morning, and then by participating by way of telephone call and providing to the court a document of which I have marked as exhibit M2 24/05/2021 which can be described as an attempt at an affidavit and in addition there have been some documents relating to the defect notice and certificate of electrical safety.
The Father has filed quite comprehensive material in support of his orders which seek children's orders, including sole parental responsibility (without any orders for the Mother to spend time with the children) and property orders. The direct background to the matter, it appears that the Father's material indicates quite disturbing behaviour on behalf of the Mother. In addition to that, there is a section 67Z response from the Department of Health and Human Service (DHHS) (as it was then) of 22 February 2021 and a s11F child inclusive conference memorandum of 23 March 2021.
THE PARENTING AND PROPERTY MATTERS
I should note that dealing with the children’s matters, Mr Lampe, the Independent Children's Lawyer has appeared this day and also sought that the matter proceed undefended but with the notation that were the Mother to get her house in order that she permitted to bring an application rather than being stymied by the rule in Rice & Asplund [1978] FamCAFC 128 and points out to me that I could make such orders under section 64B(2)(g) of the Family Law Act 1975 (Cth) (‘the Act’), that is, steps which should be undertaken before an application can be brought.
Ms Paull (counsel for the Father) clarified the Father's property application today. The former relationship home is registered in the Father's sole name, and this day there has been a valuation provided of D property valuers in the sum of $820,000 (whereas the Father's affidavit of 3 May 2021 estimated that the value was $650,000). Effectively that comes out on his case to a property pool between the parties of something in the order of (he says) about $350,000 being about $328,000 equity in the home, and another $56,000 of superannuation, plus a motor car said to be worth about $22,000, less loans due to relatives.
It should be noted that since separation the Mother has been in occupation of the home. It is controversial between them as to the state of the home at the time of separation and now and who is responsible for that. It is the Father's case that the Mother has essentially wrecked the home, permitted squatters in there. The Mother has asserted to me this day that she has been working hard to repair and improve that property post-separation and that the Father has damaged the property. The bulk the value of the property would appear to be in the land value, which was escalated substantially.
The Father contributed to the property some $140,000 in 2011 and there was the advance of $77,000 from his grandparents which he asserts to be a loan, and a further $20,000. The Mother today asserts the $77,000 was a gift, not a loan. The Father's case as expressed in his amended case outline, was that there be an 80/20 split of the parties assets. Roughly, looking at an 80/20 split in a pool of some $350,000 would have provided a payment of some odd $70,000 to the Mother less the value of the motor car if anything.
However, this day Ms Paull, his counsel, has told me that whilst that might appear to be his case at first blush on the documents, in fact his case is that there should not be any payment to the Mother after costs and costs orders are taken into account. The Mother will have learned of that new position only this afternoon. The other aspect of the property is that the Father experienced significant difficulty in having D property valuers value the property because they claim not to have received cooperation from the Mother for their inspection.
The orders and discussion by me on 15 April 2021 assisted D property valuers to value the property. I do not understand why it took my assistance on 15 April 2021 to enable them to do that, but, nonetheless, that is what occurred. However, that valuation was then provided to the court at 12.37pm today and to the Mother at an equivalent time.
WHETHER THE MATTER SHOULD PROCEED UNDEFENDED
An undefended hearing is a difficult matter. It means that there is no assistance obtained from the other side. All important aspects of the matter must be proved on admissible evidence. Ordinarily in an undefended hearing it is expected and assumed that the other side that is not participating in the hearing will have had the opportunity to look at such evidence as has been provided to them. Then the court can more readily proceed on the basis of the non appearing party having been provided with all of the evidence and draw the inference that party has chosen not to participate in the proceedings or to make any application.
That is complicated in this case by two things:
(a)Firstly, the receipt of the kerbside valuation at 12.37pm today, and the circumstance that the Father's case, in fact, is not an 80/20 split but is effectively a case that the Mother would retain the motor car, the assets that she had and the Father would retain all of the equity in the property. I note that the same valuation (it puts the property at $820,000) says when completed it is more likely to be in the order of $920,000 relating to a comparable sale. The Mother tells me that she very much is troubled by that valuation and would seek to put further evidence before me.
(b)The further complicating matter is that the compelling nature of the Father's case is that points to circumstances, though some of them may ultimately be controversial, but would indicate that the Mother suffers from a significant but apparently undiagnosed and untreated mental health disorder. The Mother has asserted to me today that she does not because she does not hear voices and she does not hallucinate, and she is only sad. However, the nature of the communications that the Father says she has had and her inability or refusal to participate in these proceedings when so much turned upon it, and her general conduct of her life (which resulted in her being imprisoned recently for a few days on account of failing to attend court) indicate some serious issues with the Mother's thinking. It may well be she does not suffer a mental illness, however, I am far from convinced on the Father’s material that she does not.
In these circumstances it is pressed upon me today that I should proceed to hear the matter undefended, that the Father should retain the entire property pool, there should be orders that the Mother does not see the children and that she not have any further opportunity to file any material, including as to her own psychiatric circumstances.
I have determined in this case that I will not today determine whether or not the matter proceeds undefended. I will adjourn the matter to as date to be fixed, to be brought back on, on no more than 14 days' notice to the parties, and that I will provide the Mother with a further 28 days to file any material that she sees as necessary to articulate the case. When I have that material, and if I have it, I will determine whether the application to proceed undefended should succeed or not.
On the one hand, the Father has suffered the expense and stress and grief of having to prepare for five court events, including today, on the other had the proceedings only commenced on 6 October 2020 (when the Father filed his initiating application) and in circumstances where it appears to me that it is likely, but not certain, that the Mother suffers an undiagnosed mental illness.
The Father’s application took as read that an application to proceed undefended was within power and he was correct to so proceed in a busy duty list. I was not referred to any authority relating to undefended hearings and I did not cite authorities or rules of court in my oral reasons. I do so now.
From time to time a party seeks an undefended hearing of his or her application for final orders. This is the usual and not unreasonable response to a failure by the other party to appear before the court or failure to file and serve documents in support of his or her case or to contradict the other party’s case or a failure to comply with his or her duty of disclosure of all relevant documents and information or a failure to comply with the rules or orders of the court as to how the dispute between the parties would be resolved.
In the Family Court of Australia (another Court which also exercises jurisdiction under the Family Law Act 1975) rules exist to expedite resolution of disputes and those rules from the Family Law Rules 2004 include:
Rule 1.04the main purpose of these rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case; and
Rule 11.02(1) If a step is taken after the time specified for taking the step by these rules, the regulations or a procedural order, the step is of no effect.
Rule 11.02(2) If a party does not comply with these rules, the regulations or a procedural order, the court may:
…
(c) determine the case as if it were undefended.
…
In Zane & Allan (2008) FLC ¶93-378 (‘Zane & Allan’) at [8] the majority observed:
[8]The expression “undefended” is not defined, or otherwise explained in the Rules. However the explanatory guide to the rules (which is expressly stated not to be part of the rules) explains the term “undefended basis” in the following way:
“…The court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with the rule or order, as if a response had not been filed the court may make orders set out in the application on being satisfied by evidence that the orders should be made.”
In the rules that apply to the Federal Circuit Court of Australia there is no reference to an “undefended” hearing. The Federal Circuit Court Rules 2001 provide in different language an equivalent to the main purpose rule of the Family Law Rules2004 described above:
Rule 1.03(1)The object of these rules is to assist the just, efficient and economical resolution of proceedings.
The Federal Circuit Court Rules 2001 at Division 13.1A deal with an order or judgement on default. Those rules do not mention an undefended hearing and at first blush do not sit comfortably with the issues to be frequently determined in this court including the best interests of children and what are just and equitable orders to be made in regard to property alteration or settlement.
However whether by application of Rule 1.05(2) that provides that where the Federal Circuit Court Rules 2001 are insufficient or inappropriate the court may apply the Family Law Rules 2004 or by application of Rule 1.06 which provides that the court may in the interests of justice dispensed with compliance with those rules at any time and that where a court gives a direction or makes an order that is inconsistent with the rules the direction or order of the court prevails, I am satisfied that I have jurisdiction to proceed with what is known as an “undefended” hearing.
In Zane & Allan, the husband had failed to comply with orders and directions of the court and to cooperate with orders and directions relating to valuation of assets by single expert. The matter was listed for final hearing and on the day of the final hearing the husband appeared by counsel and sought an adjournment and, as I understand it, the purpose of the adjournment was (said to be) to enable compliance by the husband with the Court orders and directions. The primary judge refused the adjournment application and proceeded to hear the matter in what was described as an “undefended” hearing over two days. A reserved judgement was delivered three months later. The husband appealed and the majority regarded the primary judge’s discretion as to whether to proceed undefended not as miscarrying. The appeal was allowed and the matter remitted for rehearing.
At [10] the majority repeat the primary judge’s observations what an undefended hearing is. Ultimately the majority did not need to determine whether the primary judge’s understanding of an undefended hearing was correct or not but those observations remain a useful summary of the many principles that would apply to an undefended hearing.
In that case the majority point out that even in the event of default of a party complying with Court directions and rules there is a discretion to be exercised as to whether or not a final hearing should proceed as undefended. In finding that the discretion had miscarried the majority observed that the recalcitrant and noncomplying husband had filed some material and sought to participate in the hearing and that there were significant factual and legal issues that require hearing.
Singam & Moffrey (2015) FLC ¶93-641 (‘Singam’) the primary judge proceeded to hear a matter undefended after a party had failed to file documents in accordance with the rules of the court and had not attended a court ordered conciliation conference. That litigant in person had attended to directions hearings by telephone but was required to attend a further hearing in person but on the day of the hearing requested to appear by telephone. The request was denied.
In that case the Full Court regarded the primary judge as proceeding under the default provisions of Division 13.1A and observed at [43]-[44]:
[43]The exercise of the relevant discretions occurs within an important statutory and regulatory framework. The Federal Circuit Court “… must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted” (s 42 Federal Circuit Court of Australia Act 1999 (Cth)). The Court may “… dispense with compliance, or full compliance …” with any of the Rules (r 1.06) consistent with specified objects of the Rules to “… operate as informally as possible” and to “use streamlined processes” (r 1.03(2)). The Court “will apply the Rules in[80183] accordance with their objects” (r 1.03(3)) and “must … avoid undue delay, expense and technicality” (r 1.03(4)).
[44]That framework is rendered all the more important when litigants represent themselves. As is evident, the court has wide powers to frame proceedings and procedural requirements consistent with the interests of justice and the proper interests of both parties. Judgment by default is a remedy that results from a conclusion that the interests of justice require one party to be denied an important right; to have their case heard, even if considered weak or misguided. Frequently, other orders, including procedural orders shaped to fit the particular circumstances of the case, should be preferred.
The appeal was allowed on the basis that the exercise of the discretion to proceed undefended had miscarried.
As May J, in dissent as to the result of appeal in Zane & Allan, observed correctly and concisely:
[190]First it would be wrong in this case to lose sight of the fact that there are two parties to this dispute. The wife is entitled to have her application filed 1 September 2000 heard.
In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, a High Court appeal relating to a very late application for amendment of pleadings and adjournment in a commercial case, the majority observed:
[98]…Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to adjust resolution of proceedings.
In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, an appeal was allowed against an order that excluded an applicant from raising an arguable defence in the proceedings, and at 174 Kirby J observed, inter alia:
… For my own part, I would not wish to be taken as indicating any lessening of the appreciation by this court of the importance the justice of the efficient management of litigation in the courts of Australia. Such management is now an essential feature of the administration of justice, the importance of which is likely to increase in the years ahead. But whilst it remains in judicial hands it is a function that must be performed with flexibility and with an undiminished commitment to afford to all who come to the courts a manifestly just trial of their disputes.
It is these principles and the facts of the individual case which must be balanced in determining the course of litigation where one party has not complied with Court directions yet seeks to have his or case heard and evidence considered in the final determination of the dispute. In addition to those matters apposite to commercial disputes the court must take into account the best interests of any children concerned including the effect of any delay in resolving the proceedings upon them.
In all those circumstances, they are the reasons that I am making those orders that I make and I note that Ms Paull, the Father's counsel requested formal reasons. They are my reasons and we will take out that order.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 10 June 2021
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