Lotte & Inger
[2024] FedCFamC1F 71
•12 February 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Lotte & Inger [2024] FedCFamC1F 71
File number(s): BRC 14228 of 2021 Judgment of: HOGAN J Date of judgment: 12 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –Where the respondent has a litigation guardian – Where the respondent not meaningfully participated in the proceedings – Where the hearing is to proceed on an undefended basis Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 11 Date of hearing: 12 February 2024 Place: Brisbane Counsel for the Applicant: Ms Karaman Solicitor for the Applicant: McLaughlins Lawyers Litigation Guardian for the Respondent: Mr Nylander ORDERS
BRC 14228 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LOTTE
Applicant
AND: MR NYLANDER AS LITIGATION GUARDIAN FOR MR INGER
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The oral application made today on behalf of the Applicant that the matter should continue by default is granted.
2.The Applicant has leave to rely upon the affidavit of Ms B sworn 29 January 2024.
3.The Applicant’s legal representatives and the Litigation Guardian have leave to inspect and copy the documents produced under subpoena directed to C Lawyers.
NOTATION
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Lotte & Inger has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
I intend to continue to hear the matter this morning.
I do not intend and do not think it necessary to provide significantly detailed Reasons for that decision.
It is clear from regard to the court file that, despite the proceedings being on foot for some time, the Respondent has not filed any formal documents. There is no trial affidavit; no Financial Statement. A number of orders have been made, historically, to provide the opportunity to the Respondent (as well as to the Applicant) to file and serve affidavit material and Financial Statements, as is the usual practise of this Court in terms of matters that involve applications for property settlement orders.
The principles, it seems to me, which underpin the Rules which enable the Court to consider the outstanding application on an undefended basis really seek to balance the requirement for all parties to be afforded procedural fairness (and, thus, to be accorded the opportunity to be heard), with the Court’s other obligation to ensure that litigation is brought to a conclusion as soon as is reasonably practicable.
In this case, I am easily satisfied that the Respondent has been afforded procedural fairness in that there have been orders which have enabled and encouraged the filing of affidavit material and Financial Statements. I am satisfied that he has had the opportunity to present evidence to the Court about his financial circumstances.
I note that he does not appear in person this morning, is not present in the Court, but appears via Mr Nylander who, as a consequence of an order made some time ago, was appointed his Litigation Guardian.
I take into account Mr Nylander’s submissions, also on the record, about the difficulty that he, as Litigation Guardian, has had in engaging with Mr Inger in attempting to obtain evidence to be placed before the Court. Those difficulties though do not persuade, in the absence of any sworn evidence, that the just course is to further delay the finalisation of this matter.
The Applicant has filed material and has sought to present her case via the filing of affidavits containing not only her evidence but also the evidence of witnesses called in her case.
The property of the parties, which at least at this stage of the proceedings appears to the former matrimonial home owned solely by the Respondent (and in which the Respondent continues to live) has been the subject of a kerbside valuation relatively recently.
I am not persuaded, therefore, that it would be just or appropriate to further delay the Court’s consideration of the evidence before it, noting also that there has been no application to adjourn the trial. That is understandable, I think, given Mr Nylander’s submissions as to the decisions he has taken in his role as Litigation Guardian to attempt to minimise the costs associated with the litigation and to – in a sense – allow it to come to a conclusion as soon as reasonably practicable.
For those short Reasons delivered orally this morning, I intend to accede to the application that I continue to hear the matter on a default basis.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 12 February 2024
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