Merritt & Bruckner (No 6)
[2024] FedCFamC1F 823
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Merritt & Bruckner (No 6) [2024] FedCFamC1F 823
File number: ADC 1267 of 2016 Judgment of: HARTNETT J Date of judgment: 29 November 2024 Catchwords: FAMILY LAW – PARENTING – Application by the father to proceed undefended – Where the mother did not file material in accordance with orders of the Court – Where the application was not opposed by the Independent Children’s Lawyer – Leave to proceed undefended. Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33
Cases cited: Jabbar & Gade [2017] FamCAFC 106 Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 18 November 2024 Place: Heard in Adelaide, delivered in Melbourne Counsel for the Applicant: Ms Hume Solicitor for the Applicant: Family Law Project Solicitor for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Hemsley Solicitor for the Independent Children's Lawyer: Shorter Legal ORDERS
ADC 1267 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERRITT
Applicant
AND: MS BRUCKNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.In accordance with Order 11 of the Orders dated 18 September 2024 the matter proceed on an undefended basis noting the mother’s non-compliance with trial directions.
2.The mother pay the father’s costs of this application, payable to the Legal Services Commission of South Australia in accordance with the Legal Aid Scale in the sum of $1,247.40 (GST inclusive).
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 the pseudonym Merritt & Bruckner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
Before the Court is an Application in a Proceeding filed by the applicant father (“the father”) on 6 November 2024 seeking orders that the trial in this matter proceed on an undefended basis, noting the respondent mother’s (“the mother”) non-compliance with trial directions, and that the mother pay the father’s costs of the Application in a Proceeding payable to the Legal Services Commission of South Australia in accordance with the Legal Aid scale in a sum of $1,247.40 (GST inclusive).
MATERIAL RELIED UPON
The father relied upon:
(1)Application in a Proceeding filed 6 November 2024;
(2)his affidavit of evidence filed 6 November 2024; and
(3)an affidavit of service as deposed to by his solicitor filed 25 October 2024;
The mother did not file any material in response to the Application in a Proceeding.
The Independent Children’s Lawyer did not file any material in response to the Application in a Proceeding and did not oppose the father’s application.
CONSIDERATION
In support of the Application in a Proceeding was filed an affidavit sworn by the solicitor representing the father, Ms Monica Petrea Brogden (“Ms Brogden”) together with an affidavit of evidence as deposed to by the father. The Court is satisfied that the Application in a Proceeding and the affidavit in support were served upon the mother.
Ms Brogen gave further evidence in Court on 18 November 2024, as to her service of the father’s material upon the mother. The Court accepts that evidence, despite a challenge by the mother who appeared midway on her own behalf through the proceeding, and by telephone.
The matter was listed for trial to commence on the morning of 18 November 2024 at 10.00 am. The trial was to proceed in person in the Adelaide Registry of the Court. Trial directions were made on 18 September 2024. Each of the parties had thereafter available to them through the Commonwealth Courts portal as advised by the Court an engrossed copy of orders made on 18 September 2024.
In accordance with Orders 2 (a) and (b) of the orders made 18 September 2024, the father complied with his obligations and filed an Amended Initiating Application and trial affidavit by 14 October 2024, being 35 days before the commencement of the trial.
The mother did not comply with her obligations to file material on which she sought to rely at trial, and required pursuant to Orders 3 (a) and (b) of the orders made 18 September 2024. As at 10.00 am on 18 November 2024, the mother had not filed any amended response, nor any trial affidavits containing her evidence-in-chief and that of any other proposed witnesses by 28 October 2024, being 21 days before trial, or at all.
As a result of the mother’s non-compliance, the father was unable to comply with his obligation to file any affidavit in reply, in accordance with Order 4, being 14 days before trial.
Ms Brogden’s affidavit of service deposed to her having, on 14 October 2024, personally delivered the father’s trial material to the mother’s address for service, KK Street, Suburb LL, South Australia. Ms Brogden’s affidavit of service attached a screenshot taken of the tracking number used for delivery of that parcel. The tracking number showed the parcel as “awaiting collection” on 6 November 2024.
Ms Brogden wrote to the mother on behalf of the father on 25 October 2024, reminding the mother of her obligations pursuant to the trial direction orders, and providing her with the Legal Services Commission of South Australia trust account details for payment of a costs order made against the mother in an Application in a Proceeding before McNab J on 22 October 2024. She confirmed that the father sought for the trial to proceed. That correspondence was both emailed and posted to the mother. As at 6 November 2024, the father’s solicitor had received no response from the mother.
The correspondence of 25 October 2024 from the father’s solicitor to the mother also stated the following:
We note that you still do not appear to have collected our clients trial material served to your post office box in [Suburb LL]. It has been at [Suburb LL] since 3.49 pm on Monday 14 October 2024. Should you fail to file your trial material on time, being on or before 4.00 pm on 28 October 2024, this too will be brought to the attention of the trial judge and you are on notice that we may seek to have the matter proceed on an undefended basis.
We remind you that due to the section 102 NA provisions in place, you will not be permitted to cross-examine our client at trial if you remain self-represented. You have been on notice of this since at least 8 December 2023 as there are notations in that order as to section 102 NA. Each order has also had a "family violence information sheet" on the back detailing the effect of 102 NA on cross-examination. The 3 June 2024 trial was adjourned for several reasons, but one being that you sought time to secure legal representation under section 102 NA. You are on notice that our client opposes any further adjournments as you have had sufficient time to seek legal advice and secure a lawyer under 102 NA by now.
There is no dispute that the mother has filed no material in accordance with her obligations pursuant to Orders 3 (a) and (b) of the orders made 18 September 2024. Thus, at the time appointed for the trial to commence, she did not have any evidence before the Court.
The mother provided no explanation or no adequate explanation as to her failure to file trial material, and she failed to communicate in any way with the solicitor for the father and the ICL as to her response to the Application in a Proceeding and as to her failure to file trial material.
The Court has power under r 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as follows:
Failure to comply with a legislative provision or order
(1) If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect.
(2) If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a) dismiss all or part of the proceeding;
(b) set aside a step taken or an order made;
(c) determine the proceeding as if it were undefended;
(d) order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f)make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
Note: This subrule does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.
The matter had been earlier listed for a final hearing of five days before Brown J in the Federal Circuit and Family Court of Australia (Division 2) to commence on 3 June 2024. The mother made an oral application at that time for an adjournment of the proceeding on the basis that she needed time to approach the Family Violence Cross-Examination of Parties Scheme to obtain legal representation pursuant to s 102NA(1)(c)(iii) of the Family Law Act 1975 (Cth) (“the Act”). The mother, some five months later, had still not sought legal representation, despite her assertions before the Court to the contrary on the morning of 18 November 2024. The mother provided no evidence to support her assertions. The mother made a vague claim to be ill on the morning of the hearing and provided no evidence to support that assertion.
The mother did not attend at the Adelaide Registry in person upon the commencement of the trial, but rather after the commencement of the hearing of the Application in a Proceeding, contacted the Registry to indicate that she required “the dial in details for a hearing this morning” and that she be contacted on her mobile phone. The mother had made no application to appear by any electronic or telephone means. The mother’s contact with the Court was however facilitated by the Court, and the mother was able to make submissions by telephone appearance. The mother’s submissions were mostly irrelevant, and in part objectionable.
I accept the submission made by counsel for the ICL that the mother’s actions have as an inevitable consequence the success of the Application in a Proceeding as filed by the father. Any further adjournment of the trial is not in the best interests of the children, given the extensive history of litigation that has gone before. Other litigants who wish to appear before the Court would also be disadvantaged if a further adjournment of this lengthy trial was conceded by the Court after an earlier adjournment of a five day trial.
It is not simply a matter of procedural fairness to the mother, there is a very real question of procedural fairness being afforded to the father in these circumstances. The father could claim a denial of procedural fairness in his readiness for trial, but without the benefit of knowing what case it is he is meeting from the mother.
In all the circumstances, the application of the father shall succeed.
COSTS
The father sought costs. Ordinarily each party would pay their own costs. The father is funded pursuant to a s 102NA of the Act Order. The father’s application for costs is made on the basis that the mother has been entirely unsuccessful and that it is the mother’s conduct which has led to the need for the father to file the application that he did, and to incur the costs that he did. The mother’s impecuniosity is no absolute barrier to an order for costs.[1]
[1] Jabbar & Gade [2017] FamCAFC 106.
I shall make the very modest costs order as sought.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 29 November 2024