Salt and Salt

[2019] FamCA 203

FAMILY COURT OF AUSTRALIA

SALT & SALT [2019] FamCA 203

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal – where the mother has failed to comply with procedural directions – where the father seeks no further orders – father’s application for dismissal of all extant applications granted and matter removed from list awaiting trial.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Salt

RESPONDENT: Mr Salt

FILE NUMBER: MLC 11354 of 2013

DATE DELIVERED: 29 March 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 19 March 2019

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Mr Pearson

SOLICITOR FOR THE RESPONDENT: Bentleys Barristers and Solicitors

Orders

1. The final hearing listed to commence on 29 April 2019 be vacated.

2. All extant applications for interim and final orders by either party be dismissed and the matter be removed from the list of cases awaiting determination.

3. As soon as practicable the father cause a sealed copy of the orders made this day to be served upon the mother Ms Salt by email addressed to the mother at ….

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salt & Salt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11354 of 2013

Ms Salt

Applicant

And

Mr Salt

Respondent

REASONS FOR JUDGMENT

1. The application listed for hearing before me in the Judicial Duty List is the respondent father’s Application in a Case filed 6 February 2019 in which he sought an order dismissing all extant applications filed by the mother.

2. Counsel for the father filed that application in accordance with paragraph 10 of the orders made by Johns J on 3 December 2018 which provided that, if a party did not comply with those orders, the matter might be relisted and removed from the list, and/or the party who has complied may immediately file an Application in a Case supported by an affidavit seeking for the matter to proceed as an undefended matter.

3. Counsel for the father referred me to r 11.02 of the Family Law Rules 2004 (Cth) (“the Rules”) and in particular r 11.02 of the Rules which provides that, if a party does not comply with the Rules, the Regulations or a procedural order, the Court may inter alia dismiss all or part of the case or determine the matter as if it were undefended. The main purpose of the Rules is to “...ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. In applying the Rules, the Court must have regard to that purpose and actively manage each case in order to achieve that purpose including by making sure that the parties and their legal representatives comply with the Rules, any practice directions and procedural orders.

Background

1. The father and mother in this case were married in 2010, separated in 2013, when the father was served with an Intervention Order removing him from the family home, and were divorced in 2015.  There are two children of the marriage X born in 2011 and Y born in 2012 (“the children”). The eldest child was just three and the youngest child just two when the father and mother separated and they have been the subject of ongoing proceedings since shortly after separation. The children now live primarily with the father and spend time with the mother.  

2. This matter had a long history in the Federal Circuit Court of Australia before being transferred to this Court by Judge Stewart on 13 September 2017, including final parenting orders being made by Judge Stewart on 3 February 2015. Those orders, which her Honour made after a contested hearing, provided inter alia that the father and mother have equal shared parental responsibility for the children, that they live with the father and that they spend time with the mother as follows:

   (a)     Each alternate weekend from after school (or 3.30 pm) on Friday to the commencement of school (or 9.00 am) on Monday and to be extended to Tuesday if the Monday is a public holiday, such time to commence on 13 February 2015;

   (b)      In each other alternate week from the conclusion of school Thursday (or 3.30 pm) to the commencement of school (or 9.00 am) on Friday, such time to commence on 5 February 2015;

   (c)      Each Tuesday from 3.30 pm until 6.30 pm;

   (d)      On each of the children’s birthdays at times to be agreed and failing agreement as follows:-

   (i)          From 3.30 pm to 6.30 pm if a school day;

   (ii)  From 12 noon to 4.00 pm if a non-school day.

   (e)      From 3.00 pm on Christmas Eve to 3.00 pm on Boxing Day 2015, and each alternate year thereafter;

   (f)       From 3.00 pm on Christmas Day to 3.00 pm on Boxing Day 2016, and each alternate year thereafter;

   (g)      The Mother spend time with the children over the Easter period as follows:-

   (i)       From 6.00 pm on the Thursday prior to Good Friday to 6.00 pm on Easter Saturday in 2015, and each alternate year thereafter;

   (ii)      From 6.00 pm on Easter Saturday to 6.00 pm on Easter Monday in 2016, and each alternate year thereafter.

   (h)      During school holidays at times to be agreed and each of the parties have liberty to apply as and from 2017 with respect to school holiday time (AND THE COURT NOTES THAT in the event that this occurs there shall be no need to raise a change of circumstances argument at that time);

   (i)From 5.00 pm on the Saturday evening before Mother’s Day to the commencement of school on the Monday following Mother’s day;

   (j)       On the Mother’s birthday as follows:-

   (iii)     From 3.30 pm to 6.30 on school day;

   (iv)     From 12 noon to 4.00 pm on a non-school day.

   (k)      At such further and other times as may be agreed between the parties from time to time.

3. On 22 April 2016 the mother applied to vary the final parenting orders and Judge Stewart noted when providing reasons for the transfer of the matter to this Court that her application had been dismissed largely on the basis that there had not been a sufficient change in circumstances to warrant revisiting the final orders made in February 2015.

   The orders made by Judge Stewart on 3 February 2015, subject to some minor adjustments with respect to school holiday time, prior to the proceedings being transferred to this Court pursuant to orders by consent made by her Honour on 13 September 2017, remain the operative orders.

4. On 30 November 2016 the father filed an Initiating Application seeking orders that the mother pay child support for the children. It was that application that was ultimately transferred to this Court. On 20 October 2017, following that transfer, Registrar Sudholz made orders requiring that the father file and serve an Amended Initiating Application and affidavit in support of that application by 3 November 2017, that the mother file and serve a response to that Amended Initiating Application and an affidavit in support of the orders she sought by 17 November 2017 and that otherwise that matter b adjourned for hearing in the Senior Registrar’s Duty List on 21 November 2017 for an interim defended hearing. It appears that this was in anticipation of the father’s application to travel overseas with the children.

5. The father filed his Amended Initiating Application and an affidavit in support on 6 November 2017. The father sought an order permitting him to travel to Europe with the children for two weeks in January 2018 and child support. 

6. When the matter came on for hearing before Senior Registrar Fitzgibbon on 21 November 2017 the mother had not filed a response as she was ordered to do, although she did tender an affidavit sworn on 17 November 2017. In that affidavit the mother foreshadowed re-opening the parenting issues. The father indicated he would oppose this on the basis that there had been no change in circumstances and that this should be dealt with as a threshold issue so as to avoid the having to prepare the matter for a trial. On that date the Senior Registrar made orders discharging the order made 20 October 2017 and requiring the mother to file and serve a Response to Initiating Application by 24 November 2017 and contemporaneously file her affidavit sworn on 17 November 2017. He otherwise dismissed the interim applications and placed the matter in the list of cases awaiting allocation to a judicial docket with directions with respect to any application for priority.

7. On 24 November 2017 the mother filed a Response to Initiating Application in which she sought in summary orders for the children to live primarily with her and spend time with the father.

8. On 3 October 2018 the father filed an Application in a Case seeking orders permitting him to apply for passports for the children and that he be at liberty, subject to providing details of the proposed travel, to travel to Country B for two weeks with the children in the 2018/2019 summer school holidays. The mother in her response to that application filed 31 October 2018 sought orders with respect to the children’s time with her during the summer and term school holidays, and that she be permitted to travel to Country A with the children in April 2019 pending her treating medical practitioners certifying her fitness to travel.

9. That matter came on for hearing before Senior Registrar Fitzgibbon on 14 November 2018, where he made orders inter alia that the children’s names be placed on the airport watch list but that the father be permitted to travel overseas with the children for two weeks in January 2019. He otherwise dismissed the interim applications.

10. On 3 December 2018 the matter was listed for hearing before Johns J. Her Honour listed the matter for final hearing before Benjamin J on 29 April 2019 and made various orders with respect to the preparation of the matter for that hearing. In setting the matter down for final hearing, her Honour noted that the father would be seeking that the mother’s application for change of primary residence be dismissed on the basis that there had been no change in circumstances.

11. Her Honour ordered that the mother be treated as the applicant for the purposes of the proceedings and that, as the applicant, she file and serve an amended application setting out with precision the orders sought together with her affidavits of evidence in chief by 4.00pm on 14 January 2019.

12. The mother did not comply with the orders made by Johns J on 3 December 2018 requiring her to file an amended application and her affidavits of evidence in chief, and the father subsequently applied to the Court to have the all extant applications filed by the mother dismissed. It is that application that the father filed on 6 February 2019 that was listed before me in the Judicial Duty List. The father relied upon an affidavit of service filed 28 February 2019, and I am satisfied that the father’s application and the supporting affidavit were served upon the mother by email on 11 February 2019 using the email address identified by the mother as her address for service.

13. The mother did not file a response to the father’s Application in a Case filed 6 February 2019 and did not appear at the hearing before me.

Discussion

1. The father gave brief evidence in relation to the current arrangements for the children. It was his evidence that the children are living with him and spending time with the mother in accordance with the final orders made by Judge Stewart on 3 February 2015, albeit from time to time those arrangements are varied by agreement to accommodate the parties and the children’s requirements. He also said the children were doing well and that the current arrangements were working. Pursuant to the orders made by Johns J, the father is now the respondent and in circumstances where he initiated proceedings for the purpose of being permitted to travel overseas with the children, and he has now done so, he seeks no further orders.

2. The father’s Application in a Case filed 6 February 2019 that all extant applications filed by the mother be dismissed is unopposed. The reality is that, in circumstances where the mother has failed to comply with the orders made by Johns J on 3 December 2019, there is in effect no current application by the mother for final orders. In circumstances where the mother has not filed an Initiating Application for Final Orders, and the father seeks no orders, there is nothing to be determined and no utility in retaining the hearing date. The father is entitled to have the matter concluded and without having to incur any further expense and without the prospect of a final hearing and I propose to accede to his application. For completeness, although the mother has not filed an Initiating Application, I will dismiss all extant applications made by both parties and vacate the final hearing of the matter on 29 April 2019.   

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 29 March 2019.

Associate: 

Date:  29 March 2019