SALMON & SALMON

[2013] FCCA 814

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALMON & SALMON [2013] FCCA 814

Catchwords:
FAMILY LAW – Property – application for property settlement – where parties did not attend conciliation conference – where application not ready to proceed – where respondent did not attend Court.

FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility.

FAMILY LAW – Children – parenting orders – Court has no jurisdiction to make a parenting in relation to a person who is aged 18 or over.

COSTS – Where respondent did not attend Court for final hearing.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65H, 79

Federal Circuit Court Rules 2001, Schedule 1, Part 1

Applicant: MS SALMON

Respondent: MR SALMON

File Number: SYC 4929 of 2011

Judgment of: Judge Scarlett

Hearing date: 10 July 2013

Date of Last Submission: 10 July 2013

Delivered at: Sydney

Delivered on: 10 July 2013

REPRESENTATION

Counsel for the Applicant: Ms Snelling

Solicitors for the Applicant: Drexler & Partners

Counsel for the Respondent: Mr Mockler

Solicitors for the Respondent: Stewart Cuddy & Mockler

ORDERS

1. The hearing date of 11 July 2013 is vacated.

2. The Respondent is to pay the Applicant’s costs of the day fixed in the amount of $2,991.00.

3. The Respondent is to file and serve an Amended Response and any affidavit in support within twenty-eight (28) days.

4. The parties are to attend a Conciliation Conference before a Registrar at 9:30 am on Friday 23 August 2013.

5. The Respondent is permitted to attend by telephone.

6. The Court requires the assistance of an interpreter in the (country omitted) language for the purpose of the Conciliation Conference.

7. The parties are to attend a Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act 1975 and as provided by s.11C of the Act the Conference is to be reportable.

8. The Respondent is permitted to attend the Child Dispute Conference by telephone.

9. The Court requires the assistance of an interpreter in the (country omitted) language for the purpose of the Child Dispute Conference.

UNTIL FURTHER ORDER:

1. The Applicant Wife is to have sole parental responsibility to make long-term decisions about the care, welfare and development of the child of the marriage X born (omitted) 2006.

2. The said child X is to live with the Applicant Wife.

3. The Respondent Husband may communicate with the child X by telephone from 5.00pm to 7.00pm EST on each Saturday, or any other time as agreed between the parties in writing, while the child is with the Wife and the Wife is to do all acts and things to ensure the Husband is able to contact the child and is to ensure that the child has privacy and is free from distractions during this time.

4. The Applicant Wife may communicate with the child Y born (omitted) 1996 by telephone from 5.00pm to 7.00pm EST on each Saturday, or any other time as agreed between the parties in writing, while the child is with the Husband and the Husband is to do all acts and things to ensure the Wife is able to contact the child and is to ensure that the child has privacy and is free from distractions during this time.

5. The Applicant Wife is to be the custodian of the Australian passport of the child X.

6. Both parties will do all acts and things and sign all documents and authorities as are necessary to apply for and thereafter renew the Australian passport and the (country omitted) passport of the child X within fourteen (14) days of receiving the completed application and a request by the other party to do so from time to time and shall not unreasonably withhold consent for such renewal and the Husband shall pay the full cost of obtaining the passport of the child X in accordance with these Orders.

7. UNTIL FURTHER ORDER each party MS SALMON born (omitted) 1972 and MR SALMON born (omitted) 1951 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X born (omitted) 2006 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child X on the Airport Watch List otherwise known as the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until the Court orders its removal.

8. The Application is adjourned to 23 August 2013 for further mention at 2:00 pm and the Respondent is excused if represented.   

AND THE COURT NOTES THAT

A.     The Respondent’s solicitor has instructions to consent to Orders (10) to (16) above.

B.The Court has no jurisdiction to make a parenting Order in relation to Z born on (omitted) 1994 as he is over the age of 18 years.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 4929 of 2011

MS SALMON

Applicant

And

MR SALMON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for property settlement which has been set down for final hearing. It is not ready to proceed for several reasons.

2. The first and most obvious reason is that the Respondent Husband is not present, although his solicitor, Mr Mockler, has attended Court and tendered two affidavits by his client. The Respondent resides in (country omitted), with two of the parties’ three children. He has remained in (country omitted).

3. In a short affidavit sworn on 9^th July 2013 and forwarded electronically to his solicitor, the Respondent deposes:

   2.I regret to inform that I cannot attend the hearing in Sydney. My son is undergoing a surgery and my presence as a parent is required here. In addition, both my sons have just passed their school exams and are preparing to continue their education. My son Y received the results of his matriculation examinations late last Friday, he has only one or two weeks (depending on the institution) to prepare and lodge applications for a tertiary education and as his father I see it as my role to be here and support him. Also, my present overall financial situation does not allow me the expense of attending the hearing in Australia. Please accept my apologies.[1]

   [1] Affidavit of Mr Salmon 9.7.2013 at paragraph [2]

4. Whilst it was suggested that the Respondent could perhaps give evidence by telephone, counsel for the Applicant has not agreed with this proposal and considers it necessary for the Respondent to give evidence in person for cross-examination.

5. The Respondent’s second affidavit, also sworn on 9^th July 2013, refers in some detail to property matters, but also covers parenting matters concerning the parties’ youngest son, X. The Respondent has not filed a Response seeking any parenting orders for him, but deposes that:

   I strongly believe that it will be in X’s best interest to be reunited with myself and his brothers here.[2]

   [2] Further affidavit of Mr Salmon 9.7.2013 at paragraph [50]

6. There is a further difficulty in that the Applicant now seeks parenting orders in respect of the parties’ son, X. This is only a comparatively recent development, as it was only in a Further Amended Initiating Application filed on 18^th June 2013 that the Mother amended her Application to seek parenting orders.

7. However, the Applicant has now filed another Further Amended Initiating Application on 1^st July 2013 in which she seeks further and different parenting orders. The Applicant’s counsel has now handed up an Amended Minute of Orders Sought by the Applicant Wife, containing both parenting and property orders.

Litigation History

1. The Applicant filed an Application on 9^th September 2011, seeking interim and final property orders in respect of property in Australia, being a superannuation entitlement and a house in (omitted), New South Wales. The Application was returnable on 21^st November 2011.

2. However, on 14^th September 2011, only 5 days later, the Applicant filed an Amended Application seeking injunctive orders relating to the Respondent’s superannuation fund. That Application came before Federal Magistrate Altobelli[3] on 10^th October 2011 and his Honour made the Orders sought on an ex parte basis. His Honour adjourned the proceedings to 5^th December 2011.  

   [3] As his Honour then was

3. On 27^th October 2011 the Respondent’s solicitor filed a Notice of Address for Service. The Respondent filed a Response on 23^rd January 2012.

4. On 13^th April 2012 the parties entered into interim Consent Orders releasing an amount of $30,000.00 from the Respondent’s superannuation fund to pay outstanding mortgage payments on the property at (omitted). The parties also agreed to list the property for sale.

5. On 8^th October 2012 the property proceedings were listed for final hearing on 10^th and 11^th July 2013. the parties were directed to file and serve all affidavits upon which they sought to rely by 28^th June 2013.

6. For some reason, no direction was made that the parties should attend a conciliation conference before a Registrar.

7. On 18^th June 2013, the Applicant filed a Further Amended Initiating Application along with an affidavit sworn the day before and a Financial Statement. For the first time, the Applicant sought parenting orders relating to the parties’ son X as well as property orders.

8. On 1^st July 2013 the Applicant filed a Further Amended Initiating Application, in which she sought property orders and parenting orders which were different from the earlier parenting orders sought. She also filed an affidavit sworn 30^th June 2013.

9. The Respondent did not file any documents within the time prescribed. He has not filed a Response relating to the Application for parenting Orders.

10. On the first day of the hearing, 10^th July 2013, counsel for the Applicant filed in Court an affidavit of one Mr N, sworn 6^th July 2013. Mr N deposes that he is a registered Real Property Valuer based in (country omitted). His affidavit annexes valuations of a number of properties apparently owned by the Respondent in (country omitted).

11. The Respondent’s two affidavits were handed up in Court on 10^th July 2013.

Readiness for Final Hearing

1. The Respondent has done very little to prepare for the final hearing of the Application for parenting and property Orders. His affidavits have been provided at the last minute, on the morning of the hearing. The Respondent has chosen not to attend and he appears not to have conveyed this information to his solicitor until a few days ago. 

2. At the same time, the Applicant is not entirely blameless. It is regrettable, to say the least, that she chose to expand the proceedings to include final parenting orders

3. It does not appear that this matter is at all ready for hearing, with one party choosing to be absent.

4. Again, the fact that the parties did not attend a conciliation conference before a Registrar in respect of the property proceedings seems to be an unfortunate oversight, especially as it now appears that the Respondent has considerably more assets, being real property in (country omitted), than was previously thought. It does not appear that s.79(9) of the Family Law Act 1975 applies to the Federal Circuit Court, as it refers specifically to “the Family Court, or a Family Court of a State”, but it appears that there was good reason for Parliament to enact that:

   The Family Court, or a Family Court of a State, shall not make an order under this section in property settlement proceedings (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless:

   (a)the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or Deputy Registrar of the Family Court, or a Registrar or Deputy Registrar of the Family Court of that State, as the case may be;

   (b)the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

   (c)the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).

5. Whilst the section does not apply to this Court, it appears that, due to the nature of the property in contention, a Conciliation Conference would be a useful and desirable step, either to assist the parties to reach a settlement of the financial matters between them, or to establish the parameters of the property proceedings. Whilst the Respondent resides in (country omitted), I am not satisfied that it is not practicable for a conference to be held. The Respondent is represented by an experienced solicitor based in Sydney. He apparently speaks English well and, notwithstanding the time difference between Sydney and (country omitted), the Respondent should be able to participate in a Conciliation Conference by telephone and give instructions to his solicitor who can attend the conference in person.

6. My view is that a Conciliation Conference should be held before the property Application proceeds to a final hearing.

Parenting Orders

1. The Applicant Wife seeks the following parenting Orders, as set out in the Minute handed up by her counsel:

   10.The Wife be granted sole parental responsibility for the child, X, born (omitted) 2006.

   11.    The said, X, shall live with the Wife.

   12.That the Husband may communicate with the child, X, by telephone from 5.00 pm to 7.00 pm EST on each Saturday, or any other time as agreed between the parties in writing, while the child is with the Wife and the Wife is to do all acts and things to ensure the Husband is able to contact the child and is to ensure that the child has privacy and (is) free from distractions during this time.

   13.That the Wife may communicate with the children, Z[4] and Y[5], by telephone from 5.00 pm to 7.00 pm EST on each Saturday, or any other time as agreed between the parties in writing, while the children are with the Husband and the Husband is to do all acts and things to ensure the Wife is able to contact the children and is to ensure that the children have privacy and are free from distractions during this time.       

   14.The Wife is to be the custodian of the child, X's Australian passport.

   15.Both parties will do all acts and things and sign all documents and authorities as are necessary to apply for and renew the child, X’s, Australian passport and (country omitted) passport within fourteen (14) days of receiving the completed application and a request by the other party to do so from time to time and shall not unreasonably withhold consent for such renewal. The Husband shall pay the full cost of obtaining the child, X’s, passport in accordance with these Orders.

   16.That until further order each party Ms Salmon born (omitted) 1972 and Mr Salmon born (omitted) 1951 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, X, born (omitted) 2006, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list until the Court orders its removal.

   [4] Z was born on (omitted) 1994

   [5] Y was born on (omitted) 1996

2. The Respondent’s solicitor told the Court that he had instructions to consent to those orders being made on an interim basis.

3. In the circumstances, I propose to make those Orders until further order in respect of the two younger children, Y and X. The Court has no jurisdiction to make a parenting order in respect of the parties’ eldest son, Z, because he was born on (omitted) 1994 and is therefore an adult. Section 65H of the Family Law Act 1975 provides at subsection (1):

   (1)A parenting order must not be made in relation to a child who:

   (a)     is 18 or over; or

   (b)     is or has been married; or

   (c)     is in a de facto relationship.

4. Z attained the age of 18 years on (omitted) 1994. Consequently the Court has no jurisdiction to make a parenting order in respect of Z.

5. What needs to be done, however, is for the Respondent to file and serve an Amended Response setting out the parenting orders that he seeks in respect of the two parties’ two younger sons. He should do so within 28 days.

6. The parties should also attend a Child Dispute Conference in respect of the two children. In the circumstances, the Respondent can attend by telephone from (country omitted). An interpreter in the (country omitted) language will be ordered, although Mr Mockler is of the view that his client is reasonably fluent in English. The Applicant had the benefit of an interpreter in Court.

Costs

1. Much of the difficulty could have been avoided if the Respondent had filed his affidavit material in time and, more importantly, had attended Court for the hearing. His failure to do so left his solicitor with little in the way of material to work with. If the Respondent did have the difficulties that he set out in his affidavit, he should have sought an adjournment a reasonable time before. There is nothing to show that the Respondent’s failure to attend Court was brought about by a circumstance that arose at such short notice that he could not have arranged to give his solicitor more notice.

2. The Applicant seeks an order for costs of the day. Costs are dealt with by s.117 of the Family Law Act 1975. The Court must be of the opinion that there are circumstances that justify it in making an order for costs (s.117(2), and in arriving at that opinion it must have regard to the matters set out in s.117(2A) of the Act.

3. The financial circumstances of the parties are that the Applicant lives in rented accommodation with the parties’ youngest son, X, who is 7 years of age. The former matrimonial home at (omitted) was sold on 16^th July 2012.

4. The Respondent resides in (country omitted) with the parties’ two elder children. He is a retired (omitted). The evidence shows that he owns a number of properties in (country omitted). He also has an interest in a superannuation policy in Australia.

5. Neither party is in receipt of assistance by way of legal aid.

6. The conduct of the parties to the proceedings shows a degree of fault on both sides, but the Applicant at least filed her material on time, with the exception of the valuer’s affidavit. The Applicant also attended Court with her legal advisers.

7. It is unlikely, to say the least, that the parties would have been able to resolve final parenting orders on a final basis, unless by consent, given the absence of evidence from such processes as a Child Dispute Conference or a Family Report. However, the Respondent’s solicitor, to his credit, was able to obtain instructions to consent to the parenting orders on an interim basis.

8. The absence of the Respondent was in my view the major cause of the failure of the parties to achieve any resolution of the property proceedings between them.

9. The Respondent also failed to comply with previous orders of the Court relating to the filing of affidavits by 28^th June 2013.

10. The other matters in s.117(2A) do not appear to be relevant.

11. I propose to make an order that the Respondent pay the Applicant’s costs of the day on a party and party basis, according to the scale set out in Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001. I will allow the Daily hearing fee under Item 13 together with the Advocacy loading under Item 12, which makes a total of $2,991.00.

12. I will vacate the hearing date of 11^th July 2013 and order that the parties attend a Child Dispute Conference and a Conciliation Conference. The Respondent is to file and serve an Amended Response and any affidavit in support of the Amended Response within 28 days.  

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  15 July 2013