Merritt and Richards

[2016] FamCA 62

FAMILY COURT OF AUSTRALIA

MERRITT & RICHARDS [2016] FamCA 62

FAMILY LAW – PARENTING AND PROPERTY – respondent fails to appear – response struck out.

Family Law Act 1975 (Cth)

APPLICANT: Ms Merritt

RESPONDENT: Mr Richards

INDEPENDENT CHILDREN’S LAWYER: Mr O'Connell

FILE NUMBER: DGC 78 of 2014

DATE DELIVERED: 1 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Phelan

SOLICITOR FOR THE APPLICANT: Meier Denison Guymer

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McCormack & Co

Orders

1. The response filed on 30 July 2014 is struck out. 

2. That the reasons this day be transcribed and placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merritt & Richards 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: DGC 78  of 2014

Ms Merritt

Applicant

And

Mr Richards

Respondent

REASONS FOR JUDGMENT

1. This is the first day of the trial in relation to both property and parenting proceedings.  I listed the matter before me to today from 6 October 2015, on which day Mr Richards appeared for himself.  Subsequent to that date, there was a further hearing before Bennett J on 5 November 2015 and, again, Mr Richards appeared on his own behalf.  That related to the enforcement of the orders that I had made on 6 October.  I do not have the benefit of any reasons from that hearing, but I now note that, to the extent any appeal would have been lodged against her Honour’s orders, the time has now expired. 

2. Ms Phelan, on behalf of the mother, has indicated to me today that her instructor received email contact from the father last week on two occasions, one of which indicated that he was going to bankrupt himself and the mother could do whatever she wanted to do. 

3. Turning back to the orders of 6 October 2015, the orders provided for the final hearing to commence this day and that all affidavits of evidence-in-chief be filed by the respondent by 4 pm on 25 January.  No further material has been filed by the father.  Indeed, when one searches the file, the last documents that he filed were in 2014, one of which was his amended response on 30 July 2014.  It is clear that the father has not complied with the orders to file any evidence-in-chief.  So even if he was here today, he must be seen to have had a limited role. 

4. The order of 6 October and, indeed, the order of 5 November, were both sent to at the last known address that the court had for the father, which, ironically enough, is the address that he provided on 30 July 2014 when he filed the response.

5. The mother’s position is that she wishes to proceed on an undefended basis.  The independent children’s lawyer’s position is that these children deserve to be able to get on with their lives.  Absent any real contribution by the father, that is completely understandable.  There are significant problems for these children and they do not need a further delay.

6. In those circumstances, I am satisfied that the father has had sufficient notice of the hearing.  He was present on at least two occasions where the dates were the focus of everyone’s attention.  He was aware of the requirements to comply with the court’s orders and file material and has failed to do so.  In those circumstances, I can be satisfied that there is no injustice to him by simply striking out his response which he filed on 30 July 2014.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 February 2016.

Associate:

Date:  10 February 2016