Nga and Liang

[2012] FamCA 426

FAMILY COURT OF AUSTRALIA

NGA & LIANG [2012] FamCA 426

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to proceed on an undefended basis

Family Law Act 1975 (Cth)

APPLICANT: Ms Nga

RESPONDENT: Mr Liang

FILE NUMBER: MLC 1581 of 2012

DATE DELIVERED: 29 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 May 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Naimi, Berry Family Law

THE RESPONDENT: No appearance

Orders

1. That the wife have leave to proceed with her application for final orders on an undefended basis subject only to the orders of the trial judge that might be made on 16 August 2012.

2. That all outstanding applications are adjourned for final hearing on an undefended basis at 10.00am on 16 August 2012.

3. That by 4.00pm on 8 August 2012, the wife file and serve upon the husband:

   (a)    an amended application setting out with precision the orders that she intends to seek;

   (b)    any affidavit upon which she intends to rely; and

   (c)    copies of these orders and reasons this day.

4. That the solicitors for the wife file a proper affidavit of service to replace that of Ms G filed 28 May 2012 by no later than 4.00pm on 10 June 2012.

5. That the costs of the wife of this day be reserved.

6. That the wife have leave to issue subpoenae for the purposes of the final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nga & Liang 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: MLC 1581 of 2012

Ms Nga

Applicant

And

Mr Liang

Respondent

REASONS FOR JUDGMENT

1. On 23 February 2011 Ms Nga, to whom I shall refer as “the wife”, filed an application in general form seeking a division of property from her husband, Mr Liang, to whom I shall refer as “the husband”.  The parties were married in 1995 in Melbourne.  The application asserts that the relationship came to an end in November 2010.  The application was listed for hearing on 23 April 2012 in this court and by that stage no documents had been filed by the husband nor did he appear before the registrar on that date.

2. The registrar made orders that the matter be adjourned to the duty list for the making of final property orders on an undefended basis.  The husband was to file and serve by 18 May a response and a statement of financial circumstances.  The court record notes that he has not done that.  There is an affidavit of service on the court filed by a Mr S, who says that he served the husband with the application, financial statement and court brochure personally at Suburb S on 2 March this year and the husband’s response was that he confirmed he was the husband and then threw the documents all over the floor and said that he did not care.

3. That obviously preceded the hearing before the registrar on 23 April.  The registrar was satisfied to proceed and made the orders that she did.  I note that the registrar also ordered that a copy of that order be served on the husband before 30 April and that was not done.  There is an affidavit of service on the file by a process server who served two documents on 18 May, which was some two weeks late, but leaving that issue aside it seems to me that the problem can be rectified at least to the extent that the court record can show that the husband was properly served with at least the information about the hearing today.

4. The wife’s application has not advanced because she says she needs to value the two real properties albeit that she seeks orders that they both be sold.  She also seeks an undefined order for division of superannuation which is not in the form that the court could make and that is explained on the basis that the wife is not entirely clear what the husband’s superannuation entitlements are and to that extent I have given leave to issue a subpoena so that she can make the necessary inquiries and be ready for the hearing which I now fix as 16 August.  The wife will need to file her affidavit to prove her case and there is no reason why the husband should not be given copies of the documents, including these reasons, so that he can at least understand that the court is perplexed as to why he is not assisting in the resolution of the matter.

5. To fail to participate in the proceedings by complying with the rules and filing documents has two effects; one, it makes the responsibility on the applicant greater, which means that the costs will be higher, and that gives rise to a justifiable circumstance normally under s 117 of the Family Law Act 1975 (Cth) (“the Act”) for the court to make an order for costs against that particular person. The second reason is that the whole purpose of family law property proceedings is to ensure that there is a level playing field and that there is transparency so that a just and equitable result can be obtained under s 79. The failure by a party to participate and file documents makes that task so much the harder for the court, let alone the applicant.

6. The husband having been given an opportunity to participate and failing to comply with orders, means that the court is entitled to presume that what he said to the process server in the first place is probably right;  he does not care.  On that basis I see no reason why the court should take much of a concern about his position either. 

7. As the Full Court said in Chang v Su [2002] FamCA 156 if a party does not want to disgorge documents and disclose the financial position then the court is entitled to do the best it can in the circumstances. Without any indication as to what the husband is doing there is no reason why I should not grant her leave to proceed on an undefended basis but to the extent that the husband reads these reasons and decides that he wants to participate he will no doubt attend on 16 August and explain his aberrant behaviour up until now.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 May 2012.

Associate: 

Date:  7 June 2012