Mitchell and Mitchell

[2019] FamCA 350

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL [2019] FamCA 350

FAMILY LAW – PRACTICE AND PROCEDURE – Child related proceedings – Application to proceed undefended – Refused.
FAMILY LAW – PRACTICE AND PROCEDURE – Property proceedings – Application to proceed undefended – Granted.

Family Law Rules 2004 (Cth)

Tate v Tate (2000) FLC 93-047
U v U [2002] HCA 36

APPLICANT: Ms Mitchell

RESPONDENT: Mr Mitchell

INDEPENDENT CHILDREN’S LAWYER: Ms D Garwell

FILE NUMBER: AYC 255 of 2013

DATE DELIVERED: 28 May 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 28 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R Dart

SOLICITOR FOR THE APPLICANT: Rama Myers Family Lawyers

SOLICITOR FOR THE RESPONDENT: Self-representing

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Davis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The application, in so far as it relates to the child related proceedings, that the proceedings go ahead on an undefended basis is dismissed.

2. The property proceedings in this matter will proceed on an undefended basis and the Father will not be at liberty to question the Mother in respect of property related matters, nor to make submissions as to such.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: AYC 255 of 2013

MS MITCHELL

Applicant

And

MR MITCHELL

Respondent

REASONS FOR JUDGMENT

1. This matter concerns an Application in a Case to proceed on an undefended basis against the Father in these proceedings.  The Application in a Case was filed on 1 May 2019 by the Mother and is supported by an affidavit by herself. 

2. There are two distinct aspects of the proceedings that are before me.  They were commenced by means of an Initiating Application filed by the Father directed only to property. 

3. The Mother has responded to those in relation to both property and children's matters.  In the children's matters she seeks the discharge of final orders which have now been superseded in some respects by interlocutory orders so as to have the result that the Father would not have any parental responsibility nor would he spend any time with the children and in fact that orders would be made by means of injunction to keep him away from the Mother and the children. 

4. The Father has filed no response to this.  His response was made orally this morning wherein he indicated to the Court that he seeks equal time.  It is unsatisfactory that no response has been filed by the Father.  However, his position has been made clear this morning as to what it is that he seeks in respect of the children's matter.  He has reiterated his position in respect of property that he seeks a 50-50 division of the property.

5. In reliance upon Rule 11.02 the Mother seeks to proceed on an undefended basis.  The basis for this is the non-compliance by the Father with the procedural directions to file material in this case.  Here no material has been filed by the Father whatsoever for the final hearing of the matter.  The consequence of an order that the matters proceed on undefended basis is that there would be no cross-examination and no submissions being able to be made by the Father unless leave is granted to proceed otherwise. 

6. This outcome was said to have been supported by the main purpose of the Rules which is contained at Rule 1.04 which says

   The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

7. It was also said to be specifically supported by Rule 1.07(d) which says

   To achieve the main purpose, the court applies these Rules in a way that promotes the saving of costs

8. I was provided also helpfully by counsel for the Mother with a number of authorities, including the authority of Tate v Tate[1].  Tate notes that it is an exceptional case that calls for the matters not to be defended, or rather to be dealt with on undefended basis.  There in Tate it was noted that, in particular in property proceedings where there was a failure to disclose that an order that proceedings be dealt with on undefended basis is justified by non-compliance.  The effect of making such an order in such proceedings would mean that the Father would not have a right to be further heard absent a further order in the discretion of the Court.  Tate was decided in the context of the application in respect of property proceedings by the husband in that instance being struck out for a lack of compliance. 

   [1] (2000) FLC 93-047

9. Here the claims are made that it would be unfair to allow the Father to continue to participate because there is no factual basis set out to establish his case and there will be no opportunity to cross-examine him as no evidence is being presented by him.  The corollary of this of course is that there is no evidence from the Father to contradict the Mother's case.  Participation by the Father would allow him to test the evidence put forward by the Mother and the various experts in the case in relation to the children and would also allow him to make submissions in respect of property and the children's case. 

10. I note in relation to the children's case that this Court is bound by the authority of U & U[2] which in general terms means that the Court is not bound by the proposals of the parties but by the requirements of the legislation to make orders that are in the best interests of the children.  In that context it is still incumbent upon the parties to support the ultimate contentions that they make about what might be in the best interests of the children by the presentation of evidence that support those propositions.  It is also worth noting the context of this case is that even without any evidence put by the Father there is evidence that might (which does not equate to does) point to a result other than that sought by the Mother.  That evidence can be gleaned from some of the material contained in the report prepared by the experts.

    [2] [2002] HCA 36

11. In considering the conduct of child related proceedings I am bound to apply the principles that relate to child related proceedings. 

12. Principle one states that

    The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. 

13. What is intrinsically included in the concept of the needs of the child in principle one is the need to make an order that is in that child's best interests.  To allow the Father to participate by cross-examination and by submissions is in pursuit of the objective of obtaining orders that would be in the best interests of the child.  That object, despite the Father's non-compliance, speaks strongly to allowing him to participate, noting that here the Father is available to take part in the proceedings, wishes to participate in the proceedings and has a strong interest in the case.  Of note also that is default in providing material it is likely to hamper him rather than the Mother and the conduct of the proceedings. 

14. If that were otherwise it could well tell in a different conclusion, but in this case, considering the operation of Rule 1.04 and principle one, considering that the default by the Father in respect of the children's component of the case is most likely to harm his own interests in the case, his participation should be allowed.  That is especially so, noting that it requires exceptional circumstances to shut a person out of litigation in which that person has a legitimate interest.  That is a fundamental aspect of natural justice.

15. Different considerations apply in relation to the property proceedings.  The default here by the Father is not only a default in respect of compliance with directions, but a default in respect of disclosure.  Unlike the presentation of the children's case that default in respect of disclosure is likely to cause some hampering of the Mother's case, as well as his own case, although concession was made that on a cost benefit analysis little pursuit had been made of the Father in respect of disclosure.  Disclosure, however, remains a positive obligation upon him, that obligation being reinforced by the terms of the directions which were given in this case.  To deal with each party fairly and justly requires compliance with disclosure in a financial matter that is provided for both in the Rules and in the directions that were given.  The principles contrast somewhat than with the children's matter, noting that there is no corresponding statutory set of principles for the conduct of a property matter.  Here, unlike the position in the child related matter, the default on the part of the Father is a source of injustice to the Mother.

16. Rule 1.04 requires that proceedings be dealt with in a just and timely manner and at a reasonable expense.  Costs incurred being extended by cross-examination and submissions where there is nondisclosure as well as no evidence presented by the Father in respect of property mean that it would not be just, or be a costs matter that is reasonable in the pursuit of the matter.  It is not just for him to participate when he is in default of that disclosure obligation and where he has also chosen not to produce any evidence to support his case. 

17. Accordingly, the property proceedings will proceed on an undefended basis.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 28 May 2019.

Associate: 

Date:  31 May 2019