Kellner and Kellner and Anor

[2018] FamCA 359

FAMILY COURT OF AUSTRALIA

KELLNER & KELLNER AND ANOR [2018] FamCA 359

FAMILY LAW – PROPERTY – Where the second respondent has failed to comply with the orders made for the filing of documents – Where the applicant seeks that the matter proceed on an undefended basis insofar as the second respondent is concerned – Where the position of the first respondent as it relates to the second respondent is unclear – Where it is clear that the second respondent was well aware of these proceedings and of the orders sought against her by the applicant – Matter to proceed on an undefended basis insofar as the second respondent is concerned and in particular in relation to the orders sought against her by the applicant.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kellner

FIRST RESPONDENT: Mr Kellner

SECOND RESPONDENT: Ms King

FILE NUMBER: DNC 439 of 2012

DATE DELIVERED: 17 January 2018

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Strickland J

HEARING DATES: 15 – 19 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney QC with
Ms Reece

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

THE FIRST RESPONDENT: In Person

THE SECOND RESPONDENT: In Person

Orders

1. This matter proceed on an undefended basis insofar as the Second Respondent is concerned and in particular in relation to the orders sought against her by the Applicant.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 439 of 2012

Ms Kellner

Applicant

And

Mr Kellner

First Respondent

And

Ms King

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter there are three parties, Ms Kellner (“the applicant”), Mr Kellner (“the first respondent”), and Ms King (“the second respondent”), who is the daughter of the first respondent.

2. The matter was before Berman J on 15 September 2017 when his Honour made orders listing the matter for defended hearing, and preparing the matter for that hearing. The second respondent was represented by Mr Baldry.

3. His Honour listed the hearing to commence on Monday 15 January 2018 as a five day matter, and further ordered that evidence-in-chief be given by affidavit.

4. In relation to the second respondent, his Honour ordered that by 4:00pm on 8 December 2017 she file and serve any affidavit of evidence upon which she intended to rely.

5. Further, in relation to all parties, his Honour ordered that by 4:00pm on 10 January 2018 a number of documents be filed, namely a concise set of orders to be sought if different from those already filed, a list of the applications and affidavits to be read and if not the whole affidavit then the relevant paragraphs to be relied upon, a list of assets and liabilities agreed and settled by the parties or by counsel, a list of objections to evidence upon which rulings are required, and a bullet point summary of argument in relation to the issues in dispute.

6. His Honour also ordered each party provide to the Court at the commencement of the hearing a statement setting out the costs incurred to that date, from what source those funds have been paid, and what costs are expected to be incurred to the completion of the hearing.

7. In relation to the second respondent, I note that on 13 September 2017, two days prior to the hearing before his Honour, Mr Baldry filed a Notice of Address for Service on her behalf. However, on 18 October 2017 Mr Baldry advised the solicitors for the applicant that he was no longer instructed to act for the second respondent, and she was self-represented. That continues to be the case.

8. The second respondent has failed to comply with any of the orders made by Berman J. In particular she has filed no affidavit material, and she has not filed any documents relevant and appropriate for her to file pursuant to the orders made on 15 September 2017.

9. When this case was called on on 15 January 2018, there was no appearance by or on behalf of the second respondent.

10. On that day, apparently the second respondent contacted the Court’s telephone service advising that she was still in Victoria, and providing a mobile telephone number for the court to contact her if required. That was an inappropriate course to take. If the second respondent was going to take part in the proceedings she was obliged to appear in court on 15 January 2018. To repeat, she did not appear, and she has still not filed any documents in accordance with his Honour’s orders.

11. However, the second respondent has appeared today, and in response to questioning as to what she intended to do, she said she was here to “rectify the position” but was not able to tell the Court how she was proposing to do that.

12. The position in relation to the second respondent is that orders are sought against her by both the applicant and the first respondent. The orders sought by the applicant were set out in the Amended Initiating Application filed by her on 27 October 2017.

13. In terms of the first respondent, he also seeks orders against the second respondent, and they are to be found in paragraph (3) of the Minute of Final Orders, and subsequently in his Amended Case Outline. They were also set out in the Response filed by the first respondent on 8 December 2017.

14. The applicant seeks that the matter proceed on an undefended basis insofar as the second respondent is concerned. The position of the first respondent as it relates to the second respondent is unclear.

15. I am satisfied by reference to the affidavit of service filed by the applicant on 16 January 2018 that the second respondent was well aware of these proceedings, and was well aware of the orders sought by the applicant. Yet, to repeat, the second respondent failed to file any documents in relation to the orders sought.

16. The second respondent has told me today that she did not have access to her emails after 1 January 2018, and she has not read any documents sent since that time. Importantly, that would include the case outline of the applicant, but she would have received the Amended Initiating Application and, to repeat, was therefore well aware of the orders sought against her.

17. In these circumstances I propose to proceed on an undefended basis insofar as the second respondent is concerned, and in particular in relation to the orders sought against her by the applicant.

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 17 January 2018.

Associate: 

Date:  23 May 2018