Rybar & Trifonov
[2024] FedCFamC1F 763
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rybar & Trifonov [2024] FedCFamC1F 763
File number: SYC 6989 of 2021 Judgment of: CAMPTON J Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – DISMISSAL – Where the wife has not complied with a series orders and directions – Where there was no appearance by, or on behalf of, the wife at the Compliance and Readiness Hearing – Where the husband seeks the dismissal of the wife’s Initiating Application – Consideration of the overarching purpose of the Court pursuant to the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Orders made on the husband’s application pursuant to r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) dismissing the wife’s Initiating Application. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04 and r 10.27
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 8 November 2024 The Applicant: Did not appear The Respondent: Litigant in person ORDERS
SYC 6989 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RYBAR
Applicant
AND: MR TRIFONOV
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to rule 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Initiating Application of the wife seeking orders as to the adjustment of property between she and the husband pursuant to s 79 of the Family Law Act 1975 (Cth) filed 24 September 2021 as purportedly amended by way of the Amended Initiating Application filed on 8 March 2022, is dismissed.
2.The Response of the husband filed 20 November 2021 is withdrawn and dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rybar & Trifonov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
By way of an Initiating Application filed on 29 July 2021 Ms Rybar (“the wife”) sought orders as to the parenting of the four children of she and Mr Trifonov (“the husband”) and as to the adjustment of property between them pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband, by way of a Response to an Initiating Application filed on 20 November 2021, sought different orders as to the parenting of the children of he and the wife, and for the wife’s Initiating Application for orders adjusting property to be dismissed.
The proceedings have a tortuous history of, including chambers hearings, eight court events before the Division 2 Court, 16 court events before this Court, and one Conciliation Conference. On 29 April 2022 an order was made transferring the proceedings from the Federal Circuit and Family Court (Division 2) to this Court.
The husband and the wife married in 2009. The four children of the marriage are W born in 2011, X, born in 2012, Y, born in 2014, and Z, born in 2016. The husband and the wife separated on 1 June 2019.
On 18 March 2024, final consent orders were made as to the parenting of the four children. Those orders provided for, amongst other things, the husband and the wife to have equal shared parental responsibility for the four children, for the children to live with the father and spend time with the mother on alternate weekends, for half of the school holidays, and on special days, and for the children to have telephone/Facetime communication with the mother two days a week.
BACKGROUND
Sometime in 2009, the husband’s mother purchased a property at B Street, Suburb C NSW (“the Suburb C property”) for $495,000. The husband, the wife, and the children lived in the Suburb C property during the relationship. The wife vacated the property at the date of separation. Shortly after separation, the wife obtained a tertiary qualification and has worked as a customer service officer.
On 13 December 2021 the wife filed an Application in a Proceeding seeking leave to join the husband’s mother, Ms Collette, as the second respondent in these proceedings, and to amend her Initiating Application. That Application in a Proceeding is still, almost three years later, yet to be determined. On 8 March 2022 the wife purported filed an Amended Initiating Application seeking, amongst other things:
…
9.That pursuant to s 106B of the Family Law Act 1975, the transfer of the property situated at [B Street, Suburb C] in the State of New South Wales, being the whole of the land described in Certificate of Title, Lot […] in deposited plan […] (‘the [Suburb C] property’) from the [husband] to the [husband’s mother] be set aside;
10.The [husband’s mother] shall, within 14 days of the date of these Orders do all such things, sign all such documents and pay all such reasonable fees as might be necessary to effect the transfer of the [Suburb C] property to the [husband] free of encumberance.
11.Pursuant to s 106A of the Family Law Act 1975, a Registrar of this Court be appointed to execute all such deeds, transfers or other documents as are necessary to give effect to these Orders;
a)In the case of the [husband’s mother], upon an affidavit being filed by the solicitor of the applicant deposing to non-compliance with paragraph 10 of these Orders, together with an affidavit of service of that affidavit upon the third party.
12.That pursuant to s 79 of the Family Law Act, the net marital assets of the parties be realised and divided 60% in favour of the [wife] and 40% in favour of the [husband]; and
…
Upon the matter coming before a senior judicial registrar on 17 May 2024, each of the wife, the husband, and the proposed second respondent, the husband’s mother, were unrepresented. Consent orders were made:
(a)For the husband’s mother to provide the wife with documents supporting her assertion that she was and remains the beneficial owner of the Suburb C property, and that she and/or her husband had made all the payments in respect of that property, including the purchase or acquisition cost of the property, the mortgage repayments, and any outgoings; and
(b)For the wife to file an Amended Initiating Application on or before 14 August 2024 setting out with precision the order she seeks as against the proposed second respondent, including a points of claim document setting out with particularity the nature of the claim or claims she would prosecute, to include:
a.the precise legal basis and nature of the claim or claims and the relief at least sought in respect of each such claim or claims; and
a.the propositions of law and fact asserted by the [wife] in respect of each such claim or claims and sufficient particulars to enable the proposed Second Respondent to identify what the [wife] alleges against them including the issues to be determined in respect of each such claim.
(Orders 17 May 2024) (As per the original)
Further orders were made by the senior judicial registrar as follows:
3.In the event that the Applicant Wife files an Amended Application in accordance with Order 2, leave is granted to the Applicant Wife to email the Chambers of [the] Senior Judicial Registrar […] seeking to relist the matter for determination of the joinder application.
4.In the event that the Applicant Wife fails to comply with Order 2, the Wife’s Application in a Proceeding filed 13 December 2021 may be dismissed in Chambers in the absence of the parties.
5.The Application in a Proceeding filed 13 December 2021 is otherwise stood out of the list.
The wife failed or neglected to file her further Amended Initiating Application in compliance with the orders. She remains in default of that order today.
The matter was listed before a judicial registrar on 24 June 2024. The wife attended with the benefit of an interpreter. Orders and notations were made as follows:
Next Court Event (Compliance and Readiness Hearing)
1.The proceeding is listed for a Compliance and Readiness Hearing on 24 October 2024 at 9.30 am in the Sydney Registry of the Federal Circuit and Family Court of Australia (Division 1) before the Honourable Deputy Chief Justice McClelland.
Material to be filed
2.In accordance with the FCFCOA Central Practice Direction: Family Law Case Management, no less than 7 days prior to the listing, each party must file and serve:
a.an Amended Application or Response as appropriate, setting out the precise orders sought, if the most recently filed Application or Response is not current;
b.an undertaking as to disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
c. a Certificate of Readiness in the approved form.
3.No less than 5 days prior to the listing, the parties or their legal representatives confer in order to be able to advise the Court of the following matters at the Compliance and Readiness Hearing:
a. the factual issues requiring determination at a Final Hearing;
b.the main legal and factual contentions advanced in relation to each issue in dispute;
c.the proposed witnesses (including expert witnesses) and their availability;
d. whether interpreters are required;
e. whether the matter is appropriate to be heard by videoconference;
f. whether expert evidence can be given by videoconference;
g. the estimated length of the Final Hearing and proposed trial plan; and
h.whether any other step is required in order for the matter to proceed to a Final Hearing.
4.No later than 4pm one business day prior to the Compliance and Readiness Hearing, the parties provide a draft minute in Microsoft Word format setting out with precision any procedural orders sought to aid the limiting of issues or time required for the Final Hearing, by email to the Chambers of the Compliance and Readiness Hearing Judge.
Interpreter
5.IT IS REQUESTED THAT the Registry Manager arrange for an interpreter […] to assist the [wife] for the listing at 9.30 am on 24 October 2024.
6.IT IS REQUESTED THAT the Registry Manager arrange for an interpreter […] to assist the [husband] for the listing at 9.30 am on 24 October 2024.
IT IS NOTED THAT:
General
A. This matter is listed for directions hearing today.
B.There is no appearance by or on behalf of the proposed second respondent before the Court today.
C.On 17 May 2024 [a] Senior Judicial Registrar […] made orders by consent, in summary, for the proposed second respondent to provide documents by way of disclosure and for the [wife] to file and serve an Amended Initiating Application setting out with precision the orders sought against the proposed second respondent and Points of Claim by 14 August 2024.
D.The joinder application proposed by the [wife] is otherwise to be dealt with by the orders of [the] SJR […].
Notations where the proceedings progress to Compliance and Readiness Hearing
E.The parties attended a Conciliation Conference with a Registrar on 25 October 2023 and a court-based dispute resolution conference on 22 February 2024 and the property proceedings has not resolved.
F. Final parenting consent orders were made on 18 March 2024.
G.Where the parties have engaged in dispute resolution the substantive proceedings must Pathway and where the Initiating Application has been outstanding since 24 September 2021.
H. The Court is advised that:
Current Applications
(a) The current applications are:
i.Initiating Application filed on 24 September 2021, as amended on 8 March 2022; and
ii. Response filed on 20 November 2021.
Valuations
(b) The parties will need to obtain updated single expert valuations for:
i.Potentially the property at [B Street, Suburb C], NSW (subject to whether the proposed second respondent is joined and/or whether the property is to be included on the balance sheet);
Witnesses
(c) The witnesses in the [wife’s] case, at this stage, will be:
i. The [wife];
ii. To be advised.
(d) The witnesses in the [husband’s] case, at this stage, will be:
i. The [husband];
ii.The [husband’s] mother [Ms Collette], if not joined to the proceedings;
Interpreters
(e)The Court is informed that the [wife] and the [husband] will both require the assistance of an interpreter […].
Estimated duration of hearing
(f)The final property hearing will take approximately two (2) hearing days.
Section 102NA Family Law Act 1975 (Cth)
(g)Section 102NA of the Family Law Act 1975 (Cth) does not apply for the purpose of the final hearing, should either party become self-represented.
Appropriateness of a Remote Hearing
(h)A hearing conducted in person would be preferred given both parties are self-represented and require the assistance of separate interpreters.
Relevant Considerations / Issues
(i)Whether the [Suburb C] property is an asset to be included on the balance sheet;
(j)Whether the proposed second respondent has any equitable interests in the [Suburb C] property;
(k)Assessment of the financial and non-financial contributions of the parties during the relationship;
(l)Where the [husband] asserts that the [wife] made no financial contributions as she was a student during the relationship and that the respondent made the sole financial contributions during the relationship, which is denied by the [wife];
(m)Where the [wife] asserts that she worked in the [husband’s] family business without wages during the relationship, which is denied by the [husband];
(n)Where the [wife] says that she was the primary carer of the four children during the relationship;
(o)Where the [wife] asserts that she made a greater parenting and homemaker contributions;
(p) Assessment of the parties’ respective future needs;
Background
(q) The parties’ relationship was approximately 9 years;
(r) The parties separated 1 June 2019;
(s) There are four (4) children:
•[X] born […] 2012
•[W] born […] 2011
•[Y] born […] 2014
•[Z] born […] 2016
(t)The [wife] was born [in] 1992 and is currently 31 years and the [husband] was born [in] 1991 and is currently 32 years.
Compliance and Readiness Hearing
I.If the Compliance and Readiness Hearing does not proceed or the matter is unable to be listed for Final Hearing as a consequence of the non-compliance of one party, consideration will be given to a grant of leave to the complying party or parties to proceed on an undefended basis and to orders for costs.
J.If the contents of a Certificate of Readiness are found not to be accurate, consideration will be given to a grant of leave to the non-defaulting party or parties to proceed on an undefended basis and to orders for costs.
K.Any adjournment of the Compliance and Readiness Hearing event is at the discretion of the presiding Judge, and such requests must be made in writing jointly to the presiding Judge's chambers no less than 7 days prior to the Compliance and Readiness Hearing.
(Emphasis in original) (Hyperlink removed)
On 23 October 2024, I made the following orders in chambers:
THE COURT NOTES THAT:
A.The parties are directed to the orders and notations made by [the] Senior Judicial Registrar […] on 24 June 2024 and specifically Orders 2-6 inclusive made on that day, the requirement to comply with those orders, and the consequences of a failure to comply.
B.The applicant wife has failed or neglected to comply with Order 2 as made by [the] Senior Judicial Registrar […] on 17 May 2024. The wife will be invited to make submissions on 8 November 2024 as to why her Application in a Proceeding filed on 13 December 2021 ought not be dismissed.
THE COURT ORDERS THAT:
1.On or before 30 October 2024 the wife shall serve upon the husband a joint draft collaborative balance sheet to include all assets, liabilities, superannuation interests and financial resources as she understands to be suggested to be relevant and to include values as she understands to be alleged by each party.
2.On or before 5 November 2024 the husband shall make any additions to the balance sheet as required to reflect his contra allegations and any values that are agreed (if applicable).
3.Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy.
4.On or before 7 November 2024 at 12 noon, the wife is to file a final, settled version of the joint collaborative draft balance sheet.
CONSIDERATION
There was no appearance by or on behalf of the wife when the matter was called this morning prior to 10.00 am. There was no appearance by her or on her behalf when the matter was called again at 10.30 am.
I am satisfied that the wife is aware of the listing today in circumstances where she forwarded an email to chambers yesterday, 7 November 2024, inquiring:
Hi
I am [the wife]
And I don't know which order I do not follow. There are the all documents I send before, please check all again.
Any documents do I need to fill in?
Please let me know and thank you.
Interpreters have attended today to assist both the husband and the wife in the conduct of the litigation. The husband’s mother, although not a party to the proceedings, has also attended court today. The Court meeting the cost of an interpreter for the wife has occasioned a waste of money and resources.
The wife has failed or neglected to comply with any of the orders made on 17 May 2024, 24 June 2024, and 23 October 2024.
Section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides:
67 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
The section sets out the overarching purpose of the Court and imposes a duty to promote that overarching purpose in applying the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Section 68 of the FCFCOA Act obliges the parties to act consistently with this overarching purpose. Rule 1.04 of the Rules requires the Court to facilitate the just resolution of the proceedings “according to law and as quickly, inexpensively and efficiently as possible”.
The Court is required to efficiently use judicial and administrative resources to ensure the efficient disposal of the Court's overall case load, and as to determining proceedings in a timely manner. Modern case management provisions are directed to fairness and finality to all parties. The High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 provides authority for courts to take into account case management principles when exercising discretion in procedural applications, even to the prejudice of a party in a particular proceeding. The High Court has made it plain that parties are not entitled to consume an unlimited quantity of public resources in the pursuit of their own interests.
The wife has had ample opportunity to amend and articulate her case. She is in default of multiple orders and directions over an extended period, failing to implement the overarching purpose of the FCFCOA Act and the Rules. There is no apparent reason for her failure to attend today.
In all the circumstances, it is appropriate on the application of the husband, by operation of r 10.27 of the Rules, to dismiss the Initiating Application of the wife seeking relief by way of property adjustment, or ancillary thereto, as filed on 24 September 2021 and as purportedly amended on 8 March 2022. The wife is not foreclosed, by operation of the legislation and specifically by way of r 10.13, from bringing such further application in the future as to the adjustment of property between she and the husband as she may be advised. The husband’s Response filed 20 November 2021 will be withdrawn and dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 12 November 2024
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