FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rikki & Rikki [2023] FedCFamC1F 1003
File number: SYC 8096 of 2019 Judgment of: CAMPTON J Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where comprehensive trial directions were made on 23 February 2023 and the matter was listed for final hearing over five days in February 2024 – where such trial directions as to the filing of material has been extended on four occasions and remains absence compliance by each of the mother and father – where the parties habitually do not comply with orders of the Court – where the parties did not follow procedural requirements identified I the rules and by way of trial directions for an extension of time – trial dates vacated – trial directions amended including self-executing orders striking out the substantive relief of any party defaulting in complying with amended directions permitting the party not in default to proceed on an undefended basis Legislation: Federal Circuit Court and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 22 November 2023 Place: Sydney Solicitor for the Applicant: SCW Legal Solicitor for the Respondent: Arch Law (Australia) Pty Ltd Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
SYC 8096 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RIKKI
Applicant
AND: MS RIKKI
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The listing of this matter for trial over five days commencing 5 February 2024 is vacated.
2.The time for each party to file and serve a single consolidated affidavit relevant to their case and a single affidavit from each other witness upon which they intend to rely at trial is extended until 13 December 2023.
3.In the event a party fails or neglects to comply with Order 2 as to filing affidavit evidence for trial, the amended initiating application or amended response as filed by the party in default will be struck out, and the matter will proceed on an undefended basis as against the party in default.
4.The wife, on behalf of she and the husband, be at liberty to do all things as are necessary to instruct a single real property valuation expert to undertake a report as to the value of the property at B Street, Suburb C, the parties to equally meet the cost of that valuation, and in the event the husband fails or neglects to contribute to 50 per cent of that cost, the wife be at liberty to seek recovery of those funds as against the husband at the trial, the wife to provide the solicitors for the husband with a…
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- [2023] FedCFamC1F 1003
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CaseChat Overview and Summary
The court was required to determine whether to vacate the trial dates and amend the trial directions due to the ongoing non-compliance by both parties. The court found that the parties' habitual non-compliance with court orders and procedural requirements warranted vacating the trial dates and imposing stricter compliance measures. The amended directions now permit the party not in default to proceed on an undefended basis if the other party fails to comply with the specified deadlines for filing affidavits and a joint draft balance sheet. The court also ordered the parties to equally share the cost of a single real property valuation expert and mandated the preparation of a joint draft balance sheet to be updated and amended upon completion of the valuation.
The court ordered the listing of the matter for trial over five days commencing 5 February 2024 to be vacated and extended the time for filing affidavits until 13 December 2023. If a party fails to comply with the new deadlines, their amended initiating application or amended response will be struck out, and the matter will proceed on an undefended basis. The court also ordered the parties to equally meet the cost of a single real property valuation expert, mandated the preparation of a joint draft balance sheet, and set deadlines for filing the final version of the balance sheet. The court further ordered that if the husband fails to comply with the orders regarding the joint draft balance sheet, his relief in relation to property will be struck out, and the wife will be permitted to proceed on an undefended basis. The court confirmed the trial directions made on 23 February 2023, save and except as varied by these orders, and listed the proceeding for possible urgent allocation of trial dates subject to compliance with these directions and the directions made on 23 February 2023.
Orders
Orders of the court
SYC 8096 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR RIKKI
Applicant
AND:
MS RIKKI
Respondent
AND:
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1. The listing of this matter for trial over five days commencing 5 February 2024 is vacated.
2. The time for each party to file and serve a single consolidated affidavit relevant to their case and a single affidavit from each other witness upon which they intend to rely at trial is extended until 13 December 2023.
3. In the event a party fails or neglects to comply with Order 2 as to filing affidavit evidence for trial, the amended initiating application or amended response as filed by the party in default will be struck out, and the matter will proceed on an undefended basis as against the party in default.
4. The wife, on behalf of she and the husband, be at liberty to do all things as are necessary to instruct a single real property valuation expert to undertake a report as to the value of the property at B Street, Suburb C, the parties to equally meet the cost of that valuation, and in the event the husband fails or neglects to contribute to 50 per cent of that cost, the wife be at liberty to seek recovery of those funds as against the husband at the trial, the wife to provide the solicitors for the husband with a copy of the letter of instruction to the expert.
5. The wife cause the affidavit exhibiting the report of the single real property valuation expert to be filed and served as soon as it is available.
6. On or before 30 November 2023, the wife shall serve upon the husband’s solicitors a proposed joint draft balance sheet to include all assets, liabilities, superannuation interests and financial resources as she understands are suggested to be relevant and to include values as she understands are alleged by each party.
7. The husband shall, on or before 7 December 2023, make such entries to the wife’s draft joint balance sheet as he considers appropriate to reflect his contra-allegations and any values that he asserts or as are agreed, and he shall return the draft joint balance sheet to the wife’s solicitors before 7 December 2023.
8. Wheresoever controversy exists as the inclusion of an item or value of an item in the draft balance sheet, a footnote shall be appended by the party to explain the controversy.
9. Upon completion of the single expert valuation, the balance sheet will be updated and amended to reflect any determined or agreed value.
10. The wife shall cause a final settled version of the draft joint balance sheet to be filed and served on or before 14 December 2023.
11. In the event the husband fails or neglects to comply with the orders as to the preparation of the draft joint balance sheet, the relief sought by the husband in his amended response as to property filed 12 May 2023 shall be struck out and the wife shall be permitted to proceed with the property adjustment proceeding on an undefended basis as against the husband.
12. The trial directions made 23 February 2023 save and except as varied by these orders are otherwise confirmed.
13. The proceeding is listed before me by Microsoft Teams at 9.30 am on 30 January 2024 for possible urgent allocation of trial dates subject to compliance with these directions and with the directions identified in the orders made 23 February 2023.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
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