Ripley and Gregg

[2014] FCCA 2739

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIPLEY & GREGG [2014] FCCA 2739

Catchwords:
FAMILY LAW – Practice and procedure – adjournment – summary dismissal of proceedings – meaning of ordinarily resident – dispute as to existence of de facto relationship – costs.

Legislation:

Family Law Act 1975, ss.4, 4AA, 90SB, 90SK, 117

Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, rr.11.01, 11.02, 11.05,13.03A, 13.03B, 13.10, 21.02

Arman & Arman [2009] FamCA 8
Crown v Barnett London Borough Council, ex parte Shah [1983] 2 AC 309
Gitane & Velacruz [2007] FamCA 183
Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14; (1996) 136 ALR 251
Jacobs & Vale (2008) FMCAFam 641
Re Vassis: Ex parte Leung [1986] 64 ALR 407
Woodhead & Woodhead [1998] FLC 92-813, (1998) 23 Fam LR 559

Applicant: MR RIPLEY

Respondent: MS GREGG

File Number: SYC 1501 of 2014

Judgment of: Judge Monahan

Hearing date: 16 October 2014

Date of Last Submission: 16 October 2014

Delivered at: Sydney

Delivered on: 16 October 2014

REPRESENTATION

Solicitors for the Applicant: Self Represented Litigant (No Appearance)

Solicitors for the Respondent: Ms Emerson of Pearson Emerson Family Lawyers

ORDERS

THE COURT FINDS THAT:

1. The Applicant was aware of the proceedings today as evidenced by his adjournment request sent via email to Chambers on todays’ date requesting an adjournment until early 2015 due to medical problems and being unable to acquire the legal representation for the purposes of the mention and summary dismissal hearing (Exhibit “A1”). 

2. The Applicant was aware that if he did not appear today, the Respondent had leave of the Court to proceed with the Respondent’s application for Summary Dismissal.

THE COURT ORDERS THAT:

1. The Applicant’s request for an adjournment be refused.

2. The Initiating Application filed 17 March 2014 be summarily dismissed.

3. The Applicant pay the Respondent’s costs fixed in the amount of $4,867.00 such sum to be paid within three (3) months of today’s date.

4. The Respondent cause the Applicant to be served with a sealed copy of these orders, by way of email at the email address: (omitted)

5. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.These Orders were made following an undefended hearing for summary dismissal of the Applicant’s Initiating Application on 16 October 2014.

B.The Applicant was called outside of Court at 10:00 am and 12:35pm today and there was no response to the call.

C.The Respondent was instructed to seek an application for costs on an indemnity basis following the undefended hearing, however the Court determined that given the circumstances, it was appropriate to only award costs on a party/party basis pursuant to the Federal Circuit Court Rules 2001. Should these Orders be set aside then the Respondent is likely to re-agitate that costs should be awarded on an indemnity basis.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1501 of 2014

MR RIPLEY

Applicant

And

MS GREGG

Respondent

REASONS FOR JUDGMENT

1. These reasons are being delivered orally and can be settled when time allows or if specifically requested.

2. These proceedings are between MR RIPLEY (“the applicant”) and MS GREGG (“the respondent”). 

3. The present dispute between the parties was initiated by the applicant in seeking personal maintenance and property orders arising from the breakdown of an alleged de facto relationship.  At this point, I note that there is a factual dispute between the parties as to whether their relationship was indeed a de facto relationship within the meaning of the Family Law Act 1975 (“the Act”) .

4. The matter was listed before the Court today for hearing of the respondent’s application for summary dismissal of the proceedings. 

5. The applicant has not appeared today.  An application was made a few days ago by the applicant to the Registry to appear by telephone at today’s hearing but that application was refused by me for the reasons that he was given.  The applicant also failed to attend when the matter was before me on the last occasion, being 22 August 2014.

6. I note that the applicant has today, nonetheless, caused an email to be forwarded this morning to Chambers, seeking an adjournment of today’s proceedings.  The reasons for the adjournment which is sought “until early 2015”, that is, a period of approximately three to four months, is that the applicant asserts that he suffers from a major depressive disorder and is presently “unmedicated”, causing him to assert that he is “in no position to appear in Court”.  The applicant asserts that he has been “extremely unwell in the past three days” and that his attempts to secure legal representation on a pro bono basis were unsuccessful on this occasion.

7. The applicant also asserts that he will “guarantee” he will be in a position to proceed with “his case with the assistance of a lawyer”, should the adjournment request find favour with the Court.  I note that the respondent opposed the adjournment request. 

8. Having considered the request this morning in light of the circumstances, I formally refused the request. At the time I refused the request, I indicated that I would provide reasons.  Those reasons are included with the delivery of this decision. 

9. As stated, the hearing of the respondent’s summary dismissal application proceeded before me prior to the luncheon adjournment.  Following that hearing, I stood the matter down to consider the Court’s decision.  I am now in a position to rule on the respondent’s request for summary dismissal.

10. Any statutory references I make in these reasons will be to the Family Law Act 1975 (“the Act”) or the Federal Circuit Court Rules 2001 (“the FCC Rules”)

Background

1. The applicant was born on (omitted) 1966 in (country omitted), and is presently aged 48 years.  He has two children from a previous relationship who reside in Australia. 

2. The respondent was born on (omitted) 1975 in (country omitted) and is presently aged 39.  The respondent has resided permanently in Australia, on her evidence, since 1995 and asserts that the applicant ordinarily resides in (country omitted) and entered Australia on a tourist visa in December 2013, which expired on 31 March 2014.  To some extent, the applicant’s evidence confirms those assertions.  Regardless, it would appear that both parties are well-travelled.

3. There is an issue between the parties with respect to the nature and duration of their relationship.  The parties agree that they met in 2009.  The applicant asserts that the parties commenced cohabitation on 1 September 2009 and separated on a final basis on 21 February 2014.  The respondent asserts that they were in what she refers to as a “personal relationship”, characterised by intimacy on an irregular basis, and that existed between the parties and ended on 20 February 2014.  The respondent disputes, as stated, the existence of there being a de facto relationship.

4. The applicant commenced these proceedings by way of his Initiating Application filed on 17 March this year and in that application, as indicated, he seeks orders for spousal maintenance and orders of a property nature.  At the time of filing, I note that the applicant requested an urgent listing of the matter which was refused by a Registrar of this Court on the grounds of there being insufficient urgency.  That, in turn, prompted the applicant to file an Application for Review on 25 March this year, which sought a review of the Registrar’s decision to refuse urgency.

5. That application was referred to me in Chambers on 26 March this year and I thereafter dismissed the application. The reasons for the dismissal included that the application was filed out of time without explanation, I was satisfied that the Registrar considered the application in accordance with the Act, and that I agreed with the Registrar’s decision that there was insufficient urgency to list the application as an urgent application. Therefore, it remained returnable on 5 June 2014.

6. A Response to the Initiating Application was filed by the respondent on 4 June this year, which she subsequently amended on 22 August this year.  The respondent seeks that the Initiating Application be dismissed or, as amended, summarily dismissed and, in the alternative, seeks a declaration that a de facto relationship never existed between the parties. The respondent also seeks her legal costs.

7. The matter came before me for the first time in the duty list on 5 June 2014.  The applicant appeared in person and the respondent was represented by Ms Emerson who also appears for her today.  On this occasion, the Court ordered that the matter be adjourned to 22 August last, noting that the respondent was agitating for a hearing in relation to a threshold determination as to the fact and period of a de facto relationship.  I directed the applicant to file and serve an amended Initiating Application by 17 July 2014.  The applicant has not to date filed any such amended application.  Similarly, directions were made for the respondent to file and serve any affidavit material to be relied upon in the proceedings.

8. When the matter returned before me on 22 August 2014, there was no appearance by or for the applicant and the respondent was again represented by Ms Emerson.  I note that the applicant did make, however, a request to appear by phone that day prior to the mention hearing, which was refused for the reasons that I gave at that time. 

9. Given the applicant’s non-attendance, I acceded to a request by the respondent to list the matter for a hearing of summary dismissal at the earliest opportunity.  I determined it should be listed to today for that purpose.

10. The applicant was also ordered to pay the respondent’s costs of 22 August in the fixed sum of $271.00, pursuant to the FCC Rules. As stated, the matter is listed today for the hearing of that summary dismissal application.

Issues

1. Apart from providing the parties with the benefit of the Court’s reasons for refusing the applicant’s adjournment request today, the sole issue to be determined is whether the applicant’s proceeding should be summarily dismissed at this stage of proceedings.

Submissions

1. The solicitor for the respondent provided the Court with a written outline of argument and provided the Court with oral submissions.  The transcript for the hearing that was conducted prior to the luncheon recess will of course reflect those reasons. 

2. As stated, the applicant caused an email to be forwarded to the Court, outlining his reasons for the seeking the adjournment.  In the circumstances, I agreed to consider that email as part of today’s decision.  In light of that, I will admit that email into evidence today and it can be admitted and marked Exhibit “A1”.

Documents and evidence

1. The respondent relies upon the following: 

   ·Amended response filed on 22 August 2014;

   ·Her affidavit, sworn on 3 June 2014 and filed on 4 June 2014; and

   ·Her subsequent affidavit sworn and eFiled on 15 October 2014. 

2. In addition to her written outline of argument the respondent provided the Court with a hard copy of the decision of the Full Court of the Family Court of Australia (the Full Court) in Woodhead & Woodhead [1998] FLC 92-813, (1998) 23 Fam LR 559 (“Woodhead”).  That decision, I note, deals with the meaning of “ordinarily resident” for the purposes of a divorce application that was being considered by the Court at that time.

Relevant law

1. I will canvass the law relevant to an adjournment request before moving on to consider the law relevant to summary dismissal of proceedings.

Adjournment request

1. The Court has an implied power to adjourn proceedings where it is necessary to do justice between the parties.  The Court’s discretion in determining adjournment requests is wide.  While the fundamental consideration is to do justice between the parties, the relevant authorities would suggest that the Court should take into account:

   ·Firstly, the reasons for the adjournment; 

   ·Secondly, the period of delay in making the application;

   ·Thirdly, the capacity of the Court to relist the matter; and

   ·Fourthly, any prejudice or disadvantage to the other party which cannot be compensated for or by way of costs. 

2. In this case, I note that the applicant is a self-represented litigant who appears to be presently living in Queensland and appears not to have complied with an earlier order to pay costs in respect of his non-attendance on the last occasion.

Summary dismissal

1. The Court has the necessary inherent power to summarily dismiss or permanently stay particular proceedings.  The useful summary of the considerations which must dominate in a judicial mind in any exercise of such discretion was discussed by Kirby J in the High Court decision of Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14; 136 ALR 251 At paragraph 14 of that decision, his Honour stated:

   “It is a serious matter to deprive a person of access to the courts of law.”

2. Generally speaking, the power to summarily dismiss proceedings is only an exercise of caution.  Its usual application is where proceedings are considered to be an abuse of the processes of the Court in that they do not disclose a reasonable cause of action; that  is, where the Court is satisfied that the application is due to fail as distinct from weak or unlikely to succeed.  It is not a preliminary trial of the action. 

3. That all said, it is also noteworthy that s.17A of the Federal Circuit Court Act 1999 makes specific provision for summary judgment:

   “(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a) the first party is prosecuting the proceeding or that part of the proceeding; and

   (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

   (2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a) the first party is defending the proceeding or that part of the proceeding; and

   (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

   (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a) hopeless; or

   (b) bound to fail;

   for it to have no reasonable prospect of success.

   (4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”

4. Indeed, Regulation 13.10 of the FCC Rules provides a rule-based power to summarily dismiss:

   “The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   (b) the proceeding or claim for relief is frivolous or vexatious; or

   (c) the proceeding or claim for relief is an abuse of the process of the Court.”

5. In the Full Court decision of Gitane & Velacruz [2007] FamCA 183, Kay J, with whom Coleman and Boland JJ agreed, summarised the principles that should be applied with and when contemplating the exercise of the power of summary dismissal in the Family Law jurisdiction and stated the following at [25]:

   “I paraphrase the salient points as follows:

   (1) that relief for summary dismissal is rarely and sparingly provided;

   (2) that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;

   (3) that it is not enough to attain summary dismissal to show that it is a weak case;

   (4) that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and

   (5) that one only summarily dismisses if it is clear that the case is doomed to fail.”

6. Despite his Honour’s comments, I note that in the decision of Jacobs & Vale (2008) FMCAFam 641, Federal Magistrate Jarrett, as his Honour then was, considered a range of authorities and said the following at [20] of that decision:

   “Section 17A [referring to section 17A of the Federal Circuit Court Act, as it is now] is a provision of general application to all proceedings in the Federal Magistrates Court [the Federal Circuit Court, as it is now]. So too rule 13.10 [of the now Federal Circuit Rules] is a rule that applies to all proceedings commenced in this court.”

7. His Honour then said:

   “There is nothing in the [Federal Circuit Court Act] or the [Federal Circuit Court Rules] or the Family Law Act to suggest to the contrary.”[1]

   In other words, the Federal Circuit Act 1999 and the FCC Rules apply to determine this issue regardless of whether the matter is a Family Law case or not.

   [1] Jacobs & Vale (2008) FMCAFam 641, 20.

8. Before going any further, I note the argument of the respondent that as the applicant is arguably in breach of the orders made on 5 June 2014 and entered no appearance on 22 August last, regs.13.03A(1) and 13.03B of the FCC Rules are also of relevance.

9. Regulation 13.03A(1) states as follows:

   (1)  For rule 13.03B, an applicant is in default if the applicant fails to:

   (a)  comply with an order of the Court in the proceeding; or

   (b)  file and serve a document required under these Rules; or

   (c)  produce a document as required by Part 14; or

   (d)  do any act required to be done by these Rules; or

   (e)  prosecute the proceeding with due diligence (emphasis added).

10. And I note that reg.13.03B(1) states:

    (1)  If an applicant is in default, the Court may order that:

    (a)  the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant (emphasis added); or

    (b)  a step in the proceeding be taken within the time limited in the order; or

    (c)  if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

Costs

1. Pursuant to reg.21.02 of the FCC Rules, the Federal Circuit Court has the power to make an order for costs at any stage in a proceeding. Regulation 21.02 states:

   “(1)     An application for an order for costs may be made:

   (a)     at any stage in a proceeding; or

   (b)     within 28 days after a final decree or order is made; or

   (c)      within any further time allowed by the Court.

   (2) In making an order for costs in a proceeding, the Court may:

   (a)     set the amount of the costs; or

   (b) set the method by which the costs are to be calculated; or

   (c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or

   (d) set a time for payment of the costs, which may be before the proceeding is concluded.”

2. Generally speaking, a costs order is not intended as some form of punishment for engaging in litigation “but rather to act as a compensation for the party who has had to participate when they probably ought not to have been there”.[2]

   [2] Arman & Arman [2009] FamCA 8 at [16] (per Cronin J).

3. In family law matters, the Court also needs to consider s.117(1) of the Act which states the principle that each party shall pay their own costs. The exception to that rule is contained in s.117(2) of the Act, which relates to circumstances where the Court finds there is justification for departing from the principle. This exception is subject to the matters referred to in s.117(2A) of the Act.

4. Section 117(2A) of the Act states:

   “In considering what order, if any, should be made under subsection (2), the Court will have regard to:

   (a)     the financial circumstances of each of the parties to the proceedings;

   (b)     whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)     the conduct of the parties to the proceedings in relation to the proceedings, including, without limiting the generality of the foregoing,  the conduct of the parties in relation to the pleadings, particulars, discovery, inspection, directions to answer questions, admission of the facts, production of documents and similar matters;

   (d)     whether the proceedings were necessitated by a failure of a party to the proceedings to comply with the previous orders of the Court;

   (e)     whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)      whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)     any such other matters as the Court considers relevant.”

Quantum of costs

1. Unless the Court otherwise specifies, costs are paid on a “party/party” basis.

2. “Party/party” costs are costs necessarily incurred, and paid at a reasonable rate. The FCC Rules incorporate a schedule of costs as a guide to party/party costs in family law proceedings. Party/party costs would not ordinarily cover all the legal costs incurred by a party.

3. “Indemnity” costs are ordered when the Court intends the costs order to cover all the legal costs reasonably incurred by that party. When a costs agreement is involved, the charges to be imposed on the other party are subject to the requirement of reasonableness. I note that “indemnity costs” are not defined in the FCC Rules.

Discussion

1. I will consider the adjournment request made by the applicant before considering the summary dismissal request made by the respondent.

Adjournment

1. I’ve already noted the reasons for the adjournment request made by the applicant today.  While the applicant does include a document from a Dr C, dated 30 January 2014, in his affidavit filed on 17 March 2014, no evidence to support his assertions in his email today has been provided or no independent evidence of a medical or any other nature has been provided to the Court. 

2. With respect to the affidavit filed on 17 March, I note that in the relevant document from Dr C, part of that document appears to have been removed deliberately by the applicant.  This is clear from the respondent’s sealed copy of that particular exhibit or annexure.  Why that part of the document has been removed by the applicant, it is not clear. 

3. It is curious that the applicant’s request for an adjournment was made following the refusal to allow him to attend today’s hearing by phone. 

4. As stated, there is no recent medical evidence or any independent evidence before the Court today to support the applicant’s assertions.  He failed to attend when the matter was before the Court on 22 August last.  It was a direct result of his failure to attend on the last occasion that the court was persuaded to list the respondent’s application for summary dismissal today. 

5. The applicant has been on notice for some six weeks or so that the summary dismissal application had been listed.  In any event, even if the Court had agreed to the request for an adjournment, it would be most unlikely that it would have considered an adjournment of three to four months appropriate given that it was listed today to consider having the proceedings summarily dismissed. 

6. The prejudice to the respondent is obvious. I have already made a costs order in her favour given the applicant’s non-attendance on 22 August last. I note the respondent’s recent evidence, and I accept that evidence, that that cost order remains unpaid. Despite the strong and persuasive arguments that these proceedings should be dismissed pursuant to reg 13.03B(1)(a), I will go on and consider the balance of the arguments raised relevant to the issue of summary dismissal in the context of the Act and the FCC Rules.

Summary Dismissal   

1. At all times during the proceedings, the respondent has argued that these proceedings are without jurisdiction. Clearly, for the orders or types of orders sought by the applicant to be made, there must have at some point been a de facto relationship for the jurisdiction to be enlivened. The definition of de facto relationship is contained in s.4AA of the Act. The definition provided in s.4AA is as follows:

   Meaning of  de facto relationship

   (1)  A person is in a  de facto relationship with another person if:

   (a)  the persons are not legally married to each other; and

   (b)  the persons are not related by family (see subsection (6)); and

   (c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2)  Those circumstances may include any or all of the following:

   (a)  the duration of the relationship;

   (b)  the nature and extent of their common residence;

   (c)  whether a sexual relationship exists;

   (d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (e)  the ownership, use and acquisition of their property;

   (f)  the degree of mutual commitment to a shared life;

   (g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h)  the care and support of children;

   (i)  the reputation and public aspects of the relationship.

   (3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   (4)  A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

2. The respondent asserts that there was no de facto relationship between the parties.  She argues that the parties had a personal relationship at times over a period stretching from September 2009 that was at times, she acknowledges, intimate.  The parties, on her evidence, spent time in hotels but lived in different countries. 

3. The evidence would also support the respondent’s argument that she works and lives in Australia and that the applicant was at all times during their “relationship” resident overseas, more specifically in (country omitted), and during the course of their friendship or relationship, only entered Australia on one occasion, being 30 December last year. 

4. If there is no de facto relationship, then the Act will not apply to the relationship as there would be no de facto financial cause as defined by s.4(1) of the Act. The definition of de facto financial cause as provided in s.4(1)(a) is as follows:

   “Proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship.”

5. If the parties were found to have been in a de facto relationship, the Court can only make a de facto property order or declaration if the following are met:

   ·one of the ‘gateway’ requirements of s.90SB; and

   ·the geographical requirement of s.90SK.

6. As stated, one of the four gateway requirements set out in s.90SB must be established. Section 90SB provides as follows:

   “A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:

   (a)  that the period, or the total of the periods, of the de facto relationship is at least 2 years;

   (b)  that there is a child of the de facto relationship; or

   (c)  that:

   (i)  the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and

   (ii)  a failure to make the order or declaration would result in serious injustice to the applicant; or

   (d)  that the relationship is or was registered under a prescribed law of a State or Territory.”

7. In addition, the geographical requirement under s.90SK of the Act must be satisfied:

   “(1)  A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:

   (a)  that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and

   (b)  that either:

   (i)  both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

   (ii)  the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

   in one or more States or Territories that are participating jurisdictions at the application time;

   or that the alternative condition in subsection (1A) is met.

   (1A)  The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.”

8. I accept the respondent’s arguments that the applicant has far from satisfied the geographical requirement; that is, the geographical requirement relevant to make these applications and, in turn, some property adjustments.

9. Whilst it is clear that the respondent was resident in the jurisdiction pursuant to s.90SK(1)(a), there is no evidence pursuant to s. 90SK(1)(b) that:

   ·Firstly, the parties were resident together in Australia for at least one-third of their alleged relationship (and as stated, the applicant only came to Australia in late 2013); 

   ·Secondly, that the respondent has made “substantial” contributions to the acquisition, conservation or improvement of the property of the parties, or, the welfare of the family allegedly constituted by the parties (noting again that there is no child of their relationship);  and

   ·Thirdly, that the parties were in a participating jurisdiction when the relationship broke down.

10. Moreover, the evidence would suggest that the applicant was not ordinarily resident in a participating jurisdiction - that is New South Wales – when the application for the order was made.  I agree with the submission that the expression “ordinarily resident” means more than just resident; the words have plain meaning in the sense that it would not include temporary resident or extraordinary resident and so forth; in this case it will support that proposition.

11. On the date that the relationship between the parties broke down, the evidence would suggest that the respondent was ordinarily resident in New South Wales but the applicant was not.  The applicant was in Australia on a tourist visa only and had no right to stay in Australia beyond the 31^st of March 2014.  The applicant is only now in Australia because he’s the subject of a departure prohibition order in respect of an unpaid child support relating to the children he has from an earlier relationship; those children would appear to reside in Queensland with their mother.

12. The applicant was in Australia at the time the application was filed as a result of the departure prohibition order only.  It is understood this took effect when the applicant entered Australia on 30 December 2013.  To be ordinarily resident, the residence must be voluntarily adopted and there must be a degree of settled purpose.  The authority for that would be the case of Crown v Barnett London Borough Council, ex parte Shah [1983] 2 AC 309, and I note in that decision at 343, Lord Scarman said the following:

    “Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.”

13. This interpretation of ordinarily resident by Lord Scarman was cited with approval by Justice Burchett in a case of Re Vassis: Ex parte Leung [1986] 64 ALR 407 at 413-414 (“Re Vassis”), and in addition stated the following:

    “If a man's home is in Australia, a merely temporary absence will not prevent his being “ordinarily resident in Australia”. It is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent its being proper to continue to regard him as ordinarily resident in Australia.”

14. It would appear from the comments of Lord Scarman in Re Vassis, that the husband’s presence was neither for a settled purpose, nor a voluntarily, and could not become voluntary while he was imprisoned. 

15. I note that the solicitor to the respondent provided me with a copy of a case called Woodhead, which I referred to earlier in these reasons.  The Full Court’s decision in Woodhead involved a question as to whether a husband who had been extradited to Australia and imprisoned in Australia for conspiracy to import cannabis was ordinarily resident in Australia. The husband submitted that notwithstanding the compulsory nature of his presence in Australia, the Court should find that he was ordinarily resident. The husband’s application for divorce, however, was dismissed by the Court as the Court found it did not have jurisdiction to entertain his application because he was not at the relevant time ordinarily resident in Australia within the meaning of the Act.

16. I agree with the respondent’s submission that the current situation is an analogous one.  The applicant’s presence in Australia is a result of a departure prohibition order and it is neither settled nor voluntary and cannot become, for so long as he is subject to a departure prohibition order. 

17. I refer to the respondent’s submission that if a de facto relationship was found to exist, and the geographical consideration had been satisfied, the relationship was also not of sufficient length and there was no substantial contribution that he made to the acquisition conservation or improvement of the property of the parties either together or to the respondent.

18. I now turn to the orders sought in the Initiating Application where the respondent raises the issue of the applicant’s failure to provide notice of these proceedings to relevant third parties.

19. The Initiating Application I note seeks the following orders:

    ·An order requesting the sale of a Mercedes Benz (model omitted) and a split of net proceeds; and

    ·A further order seeking, “10 percent of all (company omitted) revenue from January 1, 2010 to February 21 2014.” 

20. The evidence would suggest that the company referred to as “(company omitted)” is a company in respect of which the respondent is director and secretary.  There appears to be nine ordinary shares relevant to that company; only three of which are held by the respondent; the other six being held by Mr E. 

21. I agree with the respondent’s submissions that third parties must be afforded procedural fairness or given notice of an application that may affect them. I note and agree that Reg.11.01 of the FCC Rules requires as follows:

    “(1) Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding, must be included as part of that proceeding.”

22. I also note that Reg.11.02(2) of the FCC Rules states that the applicant needs leave to include a person as a party after the first return date. The Court may require an affidavit from the applicant as to why that party has been included, pursuant to Reg.11.02(3).

23. I also note Reg.11.05 of the FCC Rules states that:

    “The Court may at any time order a party or a person applying to be included as a party to notify any person of:

    (a) the proceeding; or

    (b) the application of the person to be included as the party.”

24. There is no evidence before the Court that there has been any notification of any relevant third party in respect to the Initiating Application filed by the applicant, and certainly no leave has been sought to include (company omitted) as a party to the application. 

25. I will now turn to the spousal maintenance claim sought by the applicant. 

26. Among the interim orders sought, the applicant seeks an order as follows:

    “1. I am seeking an urgent lump sum payment of 10,000AUD to pay my child support debt to my nominated bank account.”

    The applicant also states that:

    “I am seeking an urgent payment of 6,000AUD for interim relocation costs.”

    In addition, the applicant seeks payment of a lump sum on an interim basis. 

27. There is merit in the respondent’s submission that these proceedings amount to an abuse of process, in that they are conducted to allow the applicant to pay his child support liability to a third party – namely, the mother of his two children or to the Child Support Agency.

28. The orders sought are not in the nature of maintenance payments, but instead amount to a partial property settlement.  The applicant has no ability on the evidence currently before the Court to repay this amount to the mother of his two children or to the Child Support Agency.  Indeed, he asserts that his financial circumstances are dire. 

29. The power to make interim orders must, of course, be exercised conservatively or cautiously.  The Court must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at a final hearing, or, that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so. 

30. I would agree with the submission of the respondent that the orders sought by the applicant are not capable of reversal on a final basis if it is subsequently considered necessary to do so.  The interim orders sought by the applicant are to allow the applicant to pay his child support debt so that he may have the departure prohibition order lifted;  that order presently preventing him from departing Australia.

31. The interim orders sought would also enable him to depart Australia with no certainty that he would ever return.  Particularly, the order in respect of seeking 75,000 Qantas Frequent Flyer points so that he may “return home to (country omitted).”  That order is curious for two reasons:

    ·Firstly, it only adds confirmation to the reality that the applicant considers his home to be in (country omitted) and not in Australia, and

    ·Secondly the Frequent Flyer Points sought are clearly for a one-way trip.

32. I am satisfied or I otherwise agree that the proceedings appear to have been conducted by the applicant for an ulterior purpose; namely to obtain sufficient funds to enable him to discharge his debt and gain his liberty to leave the jurisdiction.  The respondent also raises the failure of the applicant to provide financial disclosure. 

33. I note that his Initiating Application filed on 17 March 2014 was accompanied by a financial statement and I would agree with the submission of the respondent that this financial statement is inadequate by way of financial disclosure.  The respondent refers to no bank accounts or other means of support or income.  The applicant’s child support debt is curiously not disclosed, other than to contain a reference in the table at item G31 to an obligation that he has to pay child support to a “Ms K” of $135, which there is evidence to suggest has not in any event been paid. 

34. Consequently, on the material before the Court, it would be appropriate to find that the applicant has not made proper disclosure of his financial circumstances despite orders being made that would have enabled him to do so some time ago. 

Conclusion

1. Having considered the relevant principles in light of the available evidence and the relevant statutory provisions and the relevant Court rules, I am satisfied and find as follows. 

   ·Firstly, that it was appropriate to deny the applicant’s request for an adjournment today; and

   ·Secondly, that it is also appropriate to summarily dismiss the Initiating Application filed by the applicant on 17 March 2014. 

2. Included in the orders today will be a direction for the respondent to cause her solicitors to forward a sealed copy of today’s order to the Applicant at his last known email address.

3. Given the applicant’s failure to properly prosecute the application he caused to be filed, the Court does find it appropriate to make a costs order in favour of the respondent and against the applicant.  That said, it would appear that the applicant’s financial circumstances may be, on his evidence, desperate. 

4. Nevertheless, the respondent has been put to considerable expense by the actions of the applicant.  The applicant has failed to attend on two occasions.  He commenced these proceedings and has not been back to agitate them any further. 

1. In this case, I note that the mother seeks costs on an indemnity basis but acknowledges that an adjournment would be required to further facilitate that argument. In light of the costs of the adjournment, and in light of the reality that the applicant has thus far failed to pay earlier costs orders, in the circumstances, the reality of this matter would be that a party/party costs order should be made today and that that costs order be referable to the FCC Rules, rather than having the matter assessed by a Registrar of this Court at further cost.

2. The Court is satisfied that the lump sums claimed under the FCC Rules would provide some compensation to the respondent by way of costs. I fix the costs pursuant to Schedule 1 of the FCC Rules in the sum of $4,867.00

3. That amount is calculated as follows:

Date	Item	Amount
16 October 2014	Item 2: Initiating or opposing an application which includes interim orders (other than procedural orders) up to the completion of the first court date	$2,494.00
16 October 2014	Item 13: Daily hearing fee	$1,994.00
4 June 2014	Item 14: Disbursements—Court fees and other fees and payments to the extent that they have been reasonably incurred – Filing Response.	$310.00
Item 15: Disbursements - photocopying allowance of 100 pages at $0.69 a page	$69.00
TOTAL	$4,867.00

1. As stated, the costs will be fixed in that amount.  In the circumstances, I will allow the applicant three months in which to pay the amount ordered.

2. There will be Orders of the Court to reflect this decision.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Date:  5 January 2015