Reuters and Reuters

[2009] FamCA 20

FAMILY COURT OF AUSTRALIA

REUTERS & REUTERS [2009] FamCA 20

FAMILY LAW – ORDERS – Application to set aside orders – s 79A, consent application defective and therefore dismissed – Service issues

Family Law Act 1975 (Cth)

APPLICANT: MR REUTERS

RESPONDENT: MS REUTERS

FILE NUMBER: MLC 2369 of 2007

DATE DELIVERED: 21 JANUARY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 21 JANUARY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR LOVE

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR ARNOLD

SOLICITOR FOR THE RESPONDENT: M K STEELE & GIAMMARIO

Orders

IT IS ORDERED:

1. THAT the husband’s application in a case filed 7 January 2009 be dismissed.

2. THAT within fourteen (14) days the husband, or solicitors on his behalf, make, file and serve an initiating application, detailing with particularity the orders now sought pursuant to s79A of the Family Law Act 1975 as to the reasons to set aside the judgment of the Chief Justice and orders made on 15 December 2008.

3. THAT contemporaneously with the filing of that application the husband make, file and serve:

   (a)         an affidavit in support of that application;

   (b)a further affidavit as to his work, effort and contributions made pursuant to s79(4) and s75(2) of the Family Law Act 1975;

   (c)a Form 13 statement of financial circumstances.

4. THAT within a further ten (10) days the wife make, file and serve:

   (a)         her response; 

   (b)         an updated Form 13 statement of financial circumstances; and

   (c)         any further affidavit upon which she intends to rely.

5. THAT within a further seven (7) days the husband make, file and serve any proper responding affidavit to matters put in issue by the wife.

6. THAT the husband engage a firm of solicitors and file a Notice of Address for Service within seven (7) days of the date hereof.

7. THAT the solicitors for the wife forthwith provide to the solicitors engaged by the husband a complete copy of their applications and affidavits now filed with the court and upon which they intend to rely.

8. THAT the husband forthwith provide his current e-mail address to the wife and her solicitors.

9. THAT the initiating application to be filed by the husband is to be made returnable before Young J in the Judicial Duty List at 10.00 a.m. on Wednesday 4 March 2009.

10. THAT the husband attend at the Family Court of Australia, Melbourne Registry on that adjourned hearing date.

11. THAT within fourteen (14) days the husband make, file and serve a further affidavit detailing each and every residential address at which he has resided in Qatar post June 2008.

12. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

13. THAT paragraph 2 of the orders made 15 December 2008 as to the payment date be stayed subject to any requirement to pay interest as provided for in paragraph 4 of the orders and in a quantum to be hereafter determined by the court.

14. THAT the wife’s costs of and incidental to the appearance at court this day and fixed in the sum of $1,320 be fixed but the issue of payment thereof be reserved to the adjourned hearing date.

IT IS NOTED that publication of this judgment under the pseudonym Reuters & Reuters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2369 of 2007

MR REUTERS

Applicant

And

MS REUTERS

Respondent

REASONS FOR JUDGMENT

1. The matter of Reuters is before me in a Judicial Duty List.  Mr Love of counsel appears for the wife.  The wife is present in court.  The husband is not in court and currently is living and working in Qatar.

2. The initial property and financial application in this case was issued on behalf of the wife on 13 May 2008.  That application was returnable in this court on 8 July 2008 and that date is clearly marked on the cover sheet of the application.

3. In support of her final orders sought, the wife filed a Form 13 financial statement.  Those documents were served upon the husband and there is an affidavit of service filed 20 August 2008 indicating service upon the husband and his acknowledgment of service. He also signed the Form 6 acknowledgment of service document, which is before the court.  There were earlier attempts to serve the husband and those documents are also before the court.

4. Subsequently, the wife filed an affidavit of 6 November 2008 and an amended application for final orders sought on 10 November 2008. The amendments encompass different financial orders and orders under section 106A of the Family Law Act. Significantly the orders sought in that amended document are very close, in all ways, to the orders ultimately pronounced after an undefended hearing by the Chief Justice on 15 December 2008, save for an additional order as to service which is included within her extempore reasons.

5. It is clear from the subsequent affidavit filed by the husband that he was served with the documents, as he confirms this fact in paragraph 26 of his affidavit.  He then wrote a letter to the court, and that letter is contained within the court file and was considered by the Chief Justice in her reasons for judgment. 

6. As I understand the facts, having been served on 26 June of last year, the husband had taken an 18‑month job placement in Qatar and left Australia on or about 30 June 2008.  The husband has yet to file any meaningful property affidavit or financial statement with the court.  He has filed no response to the property or financial orders served by the wife.

7. There were proceedings before this court in July and then in September before a Registrar, and subsequently there was an order made on 6 November 2008 when the matter came before the Chief Justice where she required further service upon the husband and effectively set up the matter for an undefended hearing before her if the husband continued to ignore or not respond to orders of the court for the provision of financial information and court documents.

8. On 15 December 2008 the matter was listed before the Chief Justice and proceeded to an undefended hearing, the wife then being represented by her solicitor.  I observed that a handup statement of the financial assets of the parties was provided to the court together with minutes of proposed orders, which are, as I said, identical to the substantive financial and property orders pronounced. 

9. Her Honour in the course of her reasons for judgment examined the absence of the husband and issues of service, in particular paragraphs 2‑14 inclusive of that judgment.  Her Honour determined it appropriate to proceed on an undefended basis. 

10. As part of the orders pronounced, her Honour included, in paragraph 11, an order that:

    “The husband have leave to apply to set aside or vary these orders within one month of service of the last of the documents, as provided for in order 8 and 9 hereof”.

11. By those orders, the wife was required to serve upon the husband the reasons for judgment and the orders.  That was clearly undertaken because the husband is now aware of the orders and on a visit to Australia over Christmas he has approached a member of counsel, but not solicitors, and has filed a handwritten application in a case and an affidavit has been prepared on his behalf.  His documents were filed on 7 January 2009 and thus they are within the one‑month period provided for by the chief justice in her orders.

12. The filed application in a case is wholly defective. It merely seeks to set aside the orders but gives no reasons and does not address section 79A of the Family Law Act 1975. It is the fact that a judgment has been delivered on the basis that it was proved to the satisfaction of the court on 15 December 2008 that service had been effected and the matter should proceed on an undefended basis. This the Chief Justice did and that is encapsulated within her reasons for judgment. The husband now must identify the miscarriage of justice and must clearly and substantially set out the fact and evidence that support the basis of his request to set aside orders.

13. On one view the jurisdiction of the court now is only alive as to the issue of setting aside the undefended orders made by the court in finalising property and financial matters.  I have had submissions from counsel and am alert to the fact that there are various concerns and allegations as to the husband's address in Qatar; whether service was effected, whether he was living in the residential building first identified by him to the court.  His current affidavit and the business card exhibited thereto would tend to identify a different building.  Whether that is correct, I make no finding. 

14. I clearly observe that the documents from the court and from the wife's solicitor were sent to the address that the husband advised the court of in his letter written to the court immediately upon service upon him of the documents.  This case is somewhat more bizarre as to service issues because it would seem the uncontested evidence is that the husband has spoken to his son, who resides in the house with his mother, by telephone or Skype regularly.  Nevertheless, these court proceedings for his address or address for any other correspondence never seems to have been an issue between the parents, or either of them. 

15. Her Honour clearly identified in her judgment a provision for leave to apply.  The onus is now upon the husband and he has wholly failed to discharge that onus in his documents to date.

16. I will make orders listing the matter before me on Wednesday, 4 March 2009.  In the structured timetable that I will provide, the husband must file an application, an affidavit and an updated and particularly accurate statement of financial circumstances within 14 days of the date hereof.  Thereafter, the wife will have a further 10 days to file any documents in response, and I will permit the husband a further seven days thereafter to correct any particular factual errors.  By late February all documents will be filed to give a true picture of the circumstances surrounding the husband's absence from the court, identifying what is the miscarriage of justice, but more particularly identifying the current asset pool. 

17. I emphasise at this stage of the proceedings, that is when I am giving these extempore reasons this day, the orders of the Chief Justice remain alive and in force.  The husband's obligation is to sufficiently identify the miscarriage of justice that might convince a court to act upon the provisions in the Act and as identified in paragraph 11 of the most recent orders, to set aside or vary those orders.

18. I, very carefully, do not traverse any of the factual matters this day.  That can all await the further hearing.  I take the opportunity of carefully expressing the view that the husband must be in court on 4 March.  Hopefully there can be meaningful discussions between solicitors and counsel prior to that date. 

19. The reality is that these parties will likely spend a very substantial sum of money in contesting the set‑aside application and/or any other application that may be current thereafter.  Again, I carefully do not touch upon any of those matters, because all of the evidence is alive and outstanding.  Hopefully there will be some level of commonsense brought to this case. 

20. I will have these extempore reasons transcribed, placed upon the court file and made available to the parties.  The address for the wife will be care of her solicitors, Steele and Giammario, and the husband's address will be care of … Street, …, his sister’s home. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: