Lloyd and Panetta

[2013] FamCA 643

FAMILY COURT OF AUSTRALIA

LLOYD & PANETTA [2013] FamCA 643

FAMILY LAW – Parenting; proceedings not prosecuted – Struck out.

Family Law Act 1975 (Cth)

APPLICANT: Mr Lloyd

RESPONDENT: Ms Panetta

FILE NUMBER: MLC 88 of 2013

DATE DELIVERED: 29 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9, 16 August 2013

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance

Orders

1. That the application filed 7 January 2013 is struck out.

2. That the application not be relisted at the request of the applicant without an application in a case supported by affidavit as to:

   (a)why the applicant has not provided proper material to enable the Court to determine the matter;

   (b)       what evidence there is that supports the orders that he seeks; and

   (c)       what knowledge the respondent has of the proceedings.

3. If the applicant fails to provide an application in a case by 22 August 2014, the application filed 7 January 2013 stands formally dismissed.

4. That the order and these reasons be served by the applicant (not the Court) upon the respondent by post.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 88  of 2013

Mr Lloyd

Applicant

And

Ms Panetta

Respondent

REASONS FOR JUDGMENT

1. Mr Lloyd (“the applicant”) lived in a relationship with Ms Panetta (“the respondent”) from October 2007 until 29 December 2011. 

2. The dispute before the Court relates to both the financial and parenting issues between them.  The parenting dispute concerns B who was born in 2010.  the child lives with her mother the respondent, and the applicant’s complaint has been that he cannot obtain certainty about his relationship with his daughter. 

3. The property dispute concerns a house property at C Town which the applicant seeks to sell and from which sale, he desires a portion of the proceeds.

4. The unusual points about this case are:

   ·    The applicant filed his own application seeking orders and does not appear to have had legal advice;

   ·    The respondent has never participated in the proceedings at any stage;

   ·    The applicant lives in New South Wales but chose to issue the proceedings out of the Melbourne Registry; and

   ·    The applicant was given an opportunity to participate by telephone and ultimately to file further evidence to support the orders he sought but, in respect of the latter, failed to do so.

5. The applicant’s material was unhelpful and the respondent, by her silence, has made the applicant’s task as well as that of the Court, more difficult.

6. Having regard to what occurred before the Court on 9 August 2013, it is my view inappropriate to dismiss the application.  Rather, the appropriate course of action is to simply strike out the application with a specific order that it may only be relisted if the case is properly prepared by the applicant for hearing.

7. The litigation pathway and various orders made along the way, require explanation because the applicant’s view, gleaned from a discussion in Court by telephone on 9 August 2013, was that his case was simple, the evidence had been provided to the Court and, the Court should get on and hear his case.  Sadly, he has done little to assist himself or the Court.

8. The application was filed on 7 January 2013.  It sought orders that in essence were:

   ·    That the parents share parental responsibility of the child;

   ·    The applicant have “contact” with the child on alternate weekends dependent upon flights from Sydney to Melbourne;

   ·    There be a parental sharing of holidays and other special occasions;

   ·    Both parents be able to remove the child from the Commonwealth of Australia;

   ·    The respondent pay to the applicant $50,000 in return for the house at C Town; and

   ·    A variety of ancillary orders

9. The applicant set out in his application that the jurisdiction of the Court arose from the fact that he was a party to a de facto relationship that “broke down” after 1 March 2009; that it was a relationship of at least two years; and, there was a child of the relationship.

10. To found that jurisdiction, the applicant said he was present in Australia, a resident and an Australian citizen.

11. For the purposes of s 60I of the Family Law Act 1975 (Cth), the applicant filed a certificate to confirm that a family dispute resolution conference would not be appropriate.

12. Mr D swore an affidavit on 7 January 2013 to the effect that he went to a property in E Town and handed the respondent some documents which he identified.  He was armed with a photograph of the respondent and confirmed that she accepted those documents that he handed to her.  No indication was provided whether the respondent signed any acknowledgement but if she did, it was not filed.

13. The application was listed for a hearing on 26 March 2013.  On that day, no-one appeared before Registrar Lethbridge but the hearing was adjourned to 15 May 2013.  On the court file, there appears a letter dated 25 March 2013 from the applicant indicating he wanted an adjournment because he and the respondent were in “amicable discussion” with a view “to resolution on all matters”.  His letter went on to say he was aware he could seek to attend by electronic communication.  The Registrar’s order noted that if no-one appeared on the next occasion, the application may be struck out.

14. On 15 May 2013, the application again came before a registrar.  This time it was Registrar Moser.  The applicant attended by telephone by arrangement with the Court.  There was no appearance of the respondent.  Despite there being no documents filed by the respondent, the Registrar noted on a “bench sheet” that there was “agreement” about parenting but not property.  That information could only have come from the applicant. The Registrar had no choice but to adjourn the application because it was beyond her delegated power to finalise the proceedings.  Thus, the hearing was adjourned to 26 June 2013.

15. On 26 June 2013, Registrar Sikiotis had the applicant by telephone and there was no appearance of the respondent who still had not filed any documents.  An order was made adjourning the application to the Judicial Duty List on 9 August 2013.  It was also noted that the Court was to serve a copy of the order on all parties.  On the court file, there sits an envelope addressed to the respondent returned by Australia Post marked “Left address”.  The address seems to be that of the property about which the applicant sought orders in his initiating application.

16. On 9 August 2013, I conducted the Judicial Duty List.  The Registrar had given the applicant leave to appear by telephone.  It was a very busy day and he was not called until the very end of the day.  There had been no appearance of the respondent at all during the day and again, no documents had been filed.

17. In discussion, the applicant saw the problem as simple and wanted orders.  When I indicated I was not prepared to make final orders on the affidavit he had filed, he seemed upset that his case had been delayed by the Court.  Having regard to what I have earlier set out, that is obviously questionable.

18. To avoid further delay, and involving the applicant in further costs including that of attendances at court, I adjourned the proceedings back to myself in chambers to give the applicant an opportunity to file an affidavit that would enable the Court to make any orders, let alone those he was seeking.

19. It was not readily apparent what the respondent’s attitude was but one might conclude she had received the documents and thought that no court would make orders on the basis alleged by the applicant and as such, she would not attend.

20. The Family Court of Australia is a court of record but it is not a jurisdiction in which orders are made on a default basis. The applicant has the obligation to prove his case on evidence which must still reach the standard of the balance of probabilities.  The applicant therefore had that responsibility.

21. In his affidavit filed 7 January 2013, the applicant set out a number of vague assertions about the relationship but one might infer that it was a de facto relationship.  A “long distance relationship” as described by the applicant, might not necessarily be a de facto relationship.  I do not know, other than by the pleading, when the relationship came to an end, as distinct from “broke down”.  I do not know from the evidence whether the application was brought within time to found the necessary jurisdiction. 

22. Thus there is no basis for the Court to simply proceed on the evidence provided by the applicant on that issue.

23. The applicant then set out what he described as his problems of visiting the child.  Unfortunately, that was contained in three paragraphs and would not enable the Court to conclude that the orders sought were in the child’s best interests having regard to the provisions of s 60B, s 60CC and importantly, s 61DA of the Act.

24. The evidence to support property orders was even less helpful.  It was a recitation of discussions which were probably conclusions rather than facts and, most likely, disclosure of negotiations.

25. The applicant provided another document on 26 June 2013 in the form of a statutory declaration.  I have no indication what the series of receipts proved and I am not at all confident that I understand whether the respondent has received it.

26. Absent the applicant prosecuting his case, it is not appropriate for this Court to pursue him or waste the recourses to finalise matters where a litigant did not help himself.  The laws of Australia bind the operation of the court and whilst this Court has always tried to assist people to conclude their relationships with dignity, it is not appropriate, nor the function of the Court, to give legal advice. 

27. There is little choice other than to strike out the applicant’s application.  After the hearing on 9 August 2013, the applicant had the opportunity to file the material that I agreed to consider on an undefended basis in chambers.  He failed to do that.

28. I do not propose to allow this case to simply wander along aimlessly.  It is not the Court’s responsibility to carry the case.  Accordingly, the case will stand dismissed if not properly reinstated within 12 months.  The application is not to be relisted without formal application supported by affidavit setting out why the matter has not been prosecuted properly and what evidence justifies the orders presently sought by the applicant.

29. Because I am concerned about the understanding of the respondent in this case and in particular, the returned letter, I direct that these reasons and the order be served by post to the address at which the original application was apparently previously served.

30. The application otherwise stands to be struck out.

I certify that the preceding Thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 August 2013.

Associate: 

Date:  29 August 2013