Mayer & Mayer
[2025] FedCFamC2F 300
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mayer & Mayer [2025] FedCFamC2F 300
File number(s): SYC 2880 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 27 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where matter listed in the Defaulter’s List for non-compliance with a raft of orders over a ten month period – where matter was previously adjourned to allow parties to ensure compliance and progress the matter along the case management pathway – where the Applicant was not present in Court notwithstanding orders directing same – where neither party has acted in accordance with their mandatory obligations – where extensive and finite Court resources are allocated to the matter – where it is not for litigants to decide what orders or directions they will or will not comply with – where such an attitude is contemptuous of this Court – Application and Response struck out. Legislation: Family Law Act 1975 (Cth) ss 95, 96
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 192(3)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.27
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Sheach and Sheach [2024] FedCFamC1F 469
Division: Division 2 Family Law Number of paragraphs: 11 Date of last submission/s: 27 February 2025 Date of hearing: 27 February 2025 Place: Sydney Solicitor for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the Respondent: Mr Takchi, Takchi & Associates
Table of Corrections 21 March 2023 Paragraph 4 –section 90 of the Family law Act 1975 (Cth) has been removed and replaced with section 95. ORDERS
SYC 2880 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MAYER
Applicant
AND: MR MAYER
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Initiating Application filed by the Applicant Wife on 27 April 2023 and amended on 19 March 2024 is dismissed.
2.The Response to Initiating Application filed by the Respondent Husband on 24 June 2023 and amended on 27 March 2024 is dismissed.
THE COURT NOTES THAT:
A.This Order is made in the absence of the Applicant Wife and accordingly application may be made to set it aside pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 21 March 2025
JUDGE MURDOCH
These are property proceedings only commenced by the wife on 27 April 2023. Barrak Lawyers act for the wife and Takchi & Associates act for the husband. The respondent husband appears today with his legal representatives. There is no appearance by or on behalf of the applicant wife.
The matter was listed into the Defaulter’s List operating in the Sydney Registry on 21 August 2024 by a Senior Judicial Registrar for non-compliance with a raft of orders made over a period from June 2023 to August 2024. At such listing on 3 October 2024 orders were made by me regulating the appointment of a single expert in Country B to ascertain whether the respondent has any interest in any real property, for the applicant to file a draft joint balance sheet by 24 February 2024 together with each of the parties filing a certificate of readiness by the same date. The matter was adjourned until today to ensure compliance and progress the matter forward in the case management pathway.
Neither of the parties have complied with the orders and directions made by me. Nothing has been filed since the matter was last before the Court. Neither party has made an application to extend the time for compliance with the orders. The applicant nor her legal representatives are present today.
This Court is endeavouring to manage and progress matters according to the principles set out in section 95 of the Family Law Act 1975 (Cth) and section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which mandates that this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. This overarching principle includes, as its objectives, the efficient use of the judicial and administrative resources available for the purpose of this Court, the efficient disposal of the Court's overall caseload, disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. Section 96 of the Act and section 191 of the Federal Circuit and Family Court of Australia Act2021 (Cth) obliges parties to act consistently with this overarching purpose and is complemented by rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Lawyers must assist their clients to comply with this duty.
Section 192, subsection (3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) permits the Court, in its promotion of the overarching purpose, to make such order or direction as appropriate if a party fails to comply with the direction of the Court. Subsection (4) provides that this may include a dismissal of, but is not limited to:
(i)a dismissal of the proceedings in whole or in part;
(ii)a striking out or limiting of a party's claim or defence;
(iii)an award of costs against a party; and
(iv)order that such costs be assessed on an indemnity basis or otherwise.
This section is complemented by rule 10.27 of the Federal Circuit Family Court of Australia Rules 2021, which provides that:
If a party is in default of an order, direction or rule of the Court, the Court may, amongst other things, order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the party, set aside a step taken, or an order be made, order costs or prohibit the party from taking a further step in the proceeding until the occurrence of a specified event.
Subsection (2) provides that the Court may make any of these orders as it thinks just.
It is not contested that the orders made on 3 October 2024 have not been complied with.
In submissions as to why, in those circumstances, the proceedings should not be struck out, the respondent’s solicitor stated that the parties have not complied with the orders and directions as they were busy engaging in selling some of the real property of the parties.
In Sheach and Sheach [2024] FedCFamC1F 469 Justice Campton of Division 1 of the Federal Circuit and Family Court of Australia transferred a matter that had been transferred from Division 2 for consideration of its placement in the complex financial proceedings list back to Division 2 as a direct result of the parties' non-compliance with directions to progress the matter forward in the case management pathway. In delivering reasons, he stated that:
The orders, the legislation and the rules set out the expectations of the Court in the conduct of these proceedings. It is not for the parties to treat orders made to define the parameters of the litigation and to identify the factual matters agreed and those in dispute as guidelines or suggestions. That may well be acceptable for the Pirate Code, but it is not acceptable in this Court. Practitioners who appear are expected to have an informed and intricate knowledge of the case to ensure the efficient use of court resources.
Adopting the same terminology as used by his Honour, this Court does not conduct itself by way of the Pirate Code either. There has permeated throughout the profession, both in this registry and nationally, a mistaken belief that orders and directions of this Court and the rules of the Court designed to ensure the efficient management and progression of matters are suggestions or guidelines to be ignored at will. They are not. The conduct of the parties and their legal practitioners is unacceptable and will not be tolerated. It is not for litigants appearing in person or legally represented to decide which order or rules they will or will not comply with. Such an attitude is contemptuous of the orders of this Court. It works a substantial injustice to other litigants waiting to have their matter dealt with as soon as the Court resources will allow.
The decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 provides authority for Courts to take into account case management principles when exercising discretion and procedural applications such as this, even to the prejudice of a party or parties to a particular proceedings. The High Court emphasised that it is not sufficient to pursue just and procedural outcomes merely by reference to the interests of the parties to a particular proceedings. The effects that a procedural decision will have on other litigants and the public's interest on the use of a Court's resources must also be taken into account.
To my mind, to allow these parties a further opportunity to comply with directions of this Court is counterintuitive to those matters. Extensive court resources have been allocated to this matter in circumstances where the Court's resources are finite. Neither party appears to have acted in a manner that is consistent with their mandatory obligations. Having regard to all of the considerations I have recorded, I am satisfied that the application and response of each of the parties in this matter should be struck out. The parties are at liberty to commence fresh litigation as they may be advised.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Murdoch. Associate:
Dated: 10 March 2025
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