Larvin and Larvin - [2009] FamCA 333

FAMILY COURT OF AUSTRALIA

LARVIN & LARVIN

[2009] FamCA 333

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to proceed undefended

Family Law Act 1975 (Cth)

Australian Securities Commission v MacLeod (1994) 130 ALR 717
Brown & Brown [2004] FamCA 1067
State of Queensland v JL Holdings 189 CLR 146
Tate v Tate (2000) FLC 93-047

APPLICANT:

Mr Larvin

RESPONDENT:

Ms Larvin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

2557

2005

DATE DELIVERED:

4 May 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

4 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR GEDDES QC WITH MS LANE

SOLICITOR FOR THE APPLICANT:

FORTE FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

IN PERSON

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS SMITH, VICTORIA LEGAL AID

Orders

That the husband’s amended application for final orders filed 18 December 2008 remain listed as the second case in the list on 25 May 2009 at 10.00am but subject to the notation to these orders below.
That the husband have leave to proceed with his amended application seeking final orders on an undefended basis.
That the wife’s response filed 12 December 2005 as amended by the amended response filed 27 June 2006 and further amended on 19 July 2007 be struck out.
That the wife be at liberty to cross-examine the husband and his witnesses at the final hearing on 25 May 2009.
That the wife be notified by the solicitors for the husband of the making of these orders by forwarding a copy of this order to the wife by prepaid post to her address for service at M.
That the Independent Children’s Lawyer forward to the wife a letter in similar terms.
That my reasons for the orders be transcribed and be made available to the parties and posted by my Associate to the wife at M.
That the husband’s costs of this day be reserved to the final hearing on 25 May 2009.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.
That the letter dated 24 April 2009 from Forte Family Lawyers to the wife be marked as Exhibit A and remain on the court file.

AND THE COURT NOTES

A.That although the case is listed as the second case in the Defended List commencing 25 May 2009, the court is anticipating that the matter is now not proceeding on a defended basis and in those circumstances, it will proceed ahead of the first case in the list subject to time constraints.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2557 of 2005

MR LARVIN

Applicant

And

MS LARVIN

Respondent

REASONS FOR JUDGMENT

This is an application by the husband to proceed with his application for final orders on an undefended basis because the wife has failed to comply with her obligations pursuant to orders made by the Court. It is more difficult than that also because this case involves both property and parenting issues. In respect of the parenting matters, the wife did not participate in the family report conducted by a psychologist and she is not having any time with the children at the moment.
The children need an end to the proceedings and that will be helped by the conclusion of the financial matters as the wife is currently living in the former family home. That property I am told is the substantial asset of the parties.
In the orders that were made by the Court on 11 February 2009, apart from setting the case down for final hearing, the Registrar also ordered that the parties attend before me today. A letter from the Court was sent to the wife and I have marked as an exhibit. A letter was also sent by the husband’s lawyers requiring the wife to attend. That letter was served on the wife by being left in the letter box and whilst that would not normally be sufficient, in this case, the affidavit of service sets out the various conversations between the process server and the wife indicating that she knew what letter he was talking about. I note on the file that there is no indication that the Court’s letter has been returned.
I am also told that the Independent Children’s Lawyer has written to the wife but has not received a response.
The failure of the wife to file material puts her in breach of orders of the Court. It is not appropriate for this Court to simply wait until the final hearing date allocated to see whether a litigant arrives and then spend time trying to sort out what is being disputed and what is not. For the Court to do that would mean a significant drain on its resources but more importantly, create a prejudice to other litigants who have diligently prepared their cases and want a judicial determination.
It is particularly difficult in cases involving children but much can be gleaned about the seriousness of a litigant and parent by their conduct and approach to the parenting orders and issues before the final hearing. In this case, I am satisfied that the wife has not been an active participant in the lives of these children. It is in the best interests of these children for the uncertainty about the involvement of their mother in their lives to come to an end.
In this case, it is also important to recognise that the parties had been to the start of a trial before and I am told that the proceedings had to stop because the wife collapsed at Court. I have no information about her state of health or her state of mind and for that reason, I have ordered that these reasons be made available to her by the Court so that she can see that she has an entitlement to be heard but also that the Court takes seriously the burden of endeavouring to sort out the lives of children by making orders of a final nature so that they can get on with their lives.
I therefore find in this case that the wife has not complied with the orders of the Court. It is significant to point out that she had lawyers acting for her at various times and as recently as days ago, filed a notice of address for service showing the former home as her address.
The position adopted by the wife until now and the recent filing of the notice of address for service do not sit comfortably with one another but there may be a number of reasons for that. I will wait and see what, if any, application the wife makes on the return day as to whether she should be heard at all.
The power to proceed to hear a case on what is often described as an undefended hearing is set out in Rule 11.02(2)(c) of the Family Law Rules 2004 which provides:
If a party does not comply with these Rules, the Regulations or a procedural order, the court may amongst other things:
…
(c) determine the case as if it were undefended
An undefended hearing means literally that the respondent does not participate at all.
In Tate v Tate[1], the Full Court discussed pointed out that as the appellant’s response had been struck out, there was no live issue between the applicant and the respondent from the Court’s perspective.
[1] (2000) FLC 93-047
The Full Court referred to Australian Securities Commission v MacLeod[2] where Drummond J in the Federal Court said that there was no procedure for judgment being entered without the matter coming before that Court and evidence being called. As the Full Court observed in Tate, the same situation applies in this Court as it does in the Federal Court. The Full Court discussed what part a respondent who had not complied with directions and orders could then play. The Full Court said:
The Family Court of Australia is all too frequently confronted with litigants who fail in their duties of full and frank (and prompt) disclosure of their financial affairs. Where such failure results in a Form 7A being struck out, as here, then that party ought have no further right to be heard without further order of the Court which is a matter for the judge in his or her discretion.
Accordingly it was open to the learned trial Judge to rule that the husband had no right to cross-examine and in the exercise of her discretion to refuse what may be loosely described as his application to do so.
The attainment of justice is the over-riding objective in each individual case. In the pursuit of such an objective the trial Judge was in this matter exceptionally well placed to weigh the issues and the factors affecting each litigant and make orders appropriate to the case before her. We believe she did so.
This was indeed an “exceptional” case. The forfeiture of the right to cross-examine or indeed to make submissions, flowed from the earlier order. We discern no error of law in what transpired and no miscarriage of her Honour’s discretion.
[2] (1994) 130 ALR 717
Whilst there are very strong statements by this Court about financial disclosure, not much is often said about parenting cases where litigants fail to comply with directions and orders. In a number of ways, it is more important for parties to comply with the rules and orders that would enable them and the Court to have some meaningful opportunity to analyse what is best for the children. If parties do not comply, a Court should not be reticent about striking applications out and precluding participation. Children have a right to have their futures settled as quickly as possible based upon comprehensive information. A refusal or failure to provide that information leaves a court with the difficulty of having to decide whether to pursue the information itself. If a court is satisfied that there is sufficient information, it should not be reticent about making orders even if it means limiting the participation of an uncooperative parent.
In Brown & Brown [2004] FamCA 1067, O’Ryan J said:
What is very clear from the case law and the provisions of the 2004 Rules is that it is fundamental that the rules of Court and/or procedural orders must be obeyed and the Court should not be reticent about exercising the powers in r 11.02(2) in appropriate cases. In my view, it is not necessary that the circumstances be “exceptional”. 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 its orders and directions will attract other than the strongest measures from the Court.
The case law prior to the 2004 Rules was relatively harsh in responding to non-compliance. The new rules have adopted these case law principles as they place great importance on case management and the need to comply with court orders. As such, in my view, the new rules provide severe sanctions for non-compliance.
In State of Queensland v JL Holdings[3] the High Court had to deal with a problem where a litigant had been refused permission to amend pleadings. Dawson, Gaudron and McHugh JJ said:
Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.
[3] 189 CLR 146
In this case, as the wife has not participated, it is hard to know whether she has the “arguable defence” to which the High Court referred.
There is every indication therefore that the husband should have the opportunity to proceed on an undefended basis. It is appropriate therefore to strike out the response of the wife filed 19 July 2007. It is a matter for her, having regard to the orders of the Registrar on 11 February 2009, whether she is to seek to apply to be involved further.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 5 May 2009