Simek & Jarros
[2024] FedCFamC1F 128
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Simek & Jarros [2024] FedCFamC1F 128
File number(s): [BRC 3116 of 2022] Judgment of: JUSTICE JARRETT Date of judgment: 8 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal for default – Applicant continually failed to follow directions to file material – Applicant on notice of application for dismissal – Applicant did not appear to resist the application – Applicant did not seek leave to appear remotely – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.26(1), 10.27(1)(a)
Cases cited: Penfold v Penfold (1980) 144 CLR 311 Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 8 February 2024 Place: [Brisbane] Solicitor for the Applicant: No appearance Counsel for the Respondent: Mr North Solicitor for the Respondent: Holt Lawyers ORDERS
[BRC 3116 of 2022] FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SIMEK
Applicant
AND: MR JARROS
Respondent
ORDER MADE BY:
JUSTICE JARRETT
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application for final orders filed on 18 March, 2023 be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application to be agreed between the parties within thirty (30) days of the date of this order and failing agreement to be assessed according to Chapter 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JARRETT J:
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provide that an applicant is in default if the applicant fails to comply with an order of the Court or fails to file and serve a document required by the Rules, fails to produce a document required by the Rules, fails to do an act required to be done under the Rules, or fails to prosecute the proceedings with due diligence. If a party is found to be in default, and specifically if an applicant is found to be in default, the Court can make an order staying the proceedings or dismissing the whole or any part of them. This is an application for that relief.
These proceedings commenced as long ago as 18 March, 2022. The applicant contends that there was a de facto relationship between she and the respondent and, by reason of that relationship and its subsequent failure, she is entitled to a property adjustment order. The proceedings originally commenced in the Federal Circuit and Family Court of Australia (Division 2) and were supported by a financial statement and what I will describe as a rudimentary affidavit. It was less than a page long and did not deal with any of the relevant issues. Subsequently, as counsel for the respondent has pointed out, there have been a number of orders made requiring the applicant to file an affidavit of evidence and, more recently, an affidavit of herself and all of her witnesses upon which she intends to rely in these proceedings to establish her case.
When the matter was last before me on 14 November, 2023, the present application in a proceeding was extant, but I made an order that the application for dismissal for default be in fact treated as an application for summary dismissal in the event that the applicant filed and served no later than 4.00pm on 15 January, 2024 an affidavit by herself and each witness that she intended to rely upon. If she did that, then the hearing today would proceed as an application for summary dismissal of the proceedings on the usual understanding of such an application. However, the court record reflects that the applicant has not filed anything since that order was made, and so order 3 of the orders I made in November of last year is not operative. I will deal with the application on the basis it was originally framed.
I refer to a number of orders made by other judges in relation to the filing of evidence by the applicant. That series of orders commences with an order made on 14 November, 2022 by Judge Lapthorn in the Federal Circuit and Family Court of Australia (Division 2). Nothing was done pursuant to that order and the order was repeated on 20 February, 2023. It required the filing and service of an affidavit by the applicant, and the matter was adjourned to 8 May, 2023. An affidavit was filed on 7 May, 2023, the day before the matter returned to Court. Counsel, in his written submissions, describes that affidavit as incoherent. I would agree with that assessment of the affidavit. The body of the affidavit is just over two pages long. It is largely bereft of any grammatical sense and consists mainly of annexures which run for a great number of pages. I accept that the affidavit goes nowhere towards establishing that there was a de facto relationship between the applicant and the respondent as she contends. Much more would be needed.
Notwithstanding the filing of that affidavit, on 8 May, 2023 Judge Lapthorn made another order, seemingly listing the matter for a preliminary hearing on the question of whether there was de facto relationship and directing the parties to file affidavits of evidence in chief by themselves and one by each of their witnesses by 4.00pm on 18 September, 2023.
The applicant filed nothing. The matter came before Judge Bowrey on 29 September last year and his Honour made this order:
1. The applicant shall advise the respondent’s solicitor and the Court by way of email by no later than 4.00pm on 23 October 2023 the following:
(a) Witnesses she intends to call who will provide affidavits in support of her case; and
(b) Witnesses she intends to subpoena with a brief summary of the nature of the evidence of those persons.
The material before me does not make it entirely clear whether that order was complied with but it seems that it was not, because on 26 October, 2023, Judge Bowrey made another order in these terms:
2. On or before 4 pm on 10 November 2023, the applicant provide to the court and the respondent’s legal representatives further details in accordance with paragraph 1 of the order dated 29 September 2023 with respect to the persons detailed from and including number 9 in the list, provided by the applicant on 23 October 2023.
That order suggests some compliance by the applicant, but compliance that was nonetheless inadequate.
The next order in the chain is my order that I have already recited. The upshot is that the applicant has filed nothing apart from her affidavit of 7 May, 2023 despite being asked to file her evidence in support of her claim on numerous occasions.
I am satisfied that she is in default for the purposes of rule 10.26(1) of the Rules. I am satisfied and I find that she has failed to prosecute the proceedings with due diligence. As a mark of her failure to prosecute the proceedings with due diligence, she fails to appear today. Her failure to appear today follows upon a series of emails exchanged between she and my chambers since 30 January, 2024.
On 30 January this year my associate emailed the parties, pointing out that the matter was listed for an interim defended hearing today and that appearances in person were required. It seems that, on 2 February, the applicant emailed my chambers in these terms:
Thank you for your email. I have received some tragic news back home in [City B], [Country C] about a week ago. Due to [an incident], the situation seems grave […]. I’m not well enough to travel without my carer, who is my son, [Mr D]. Besides my ex-partner […], we don’t have any other family here in Australia. We don’t have the money for the tickets et cetera, but we are asking for a small loan from friends at present. The respondent was notified directly as soon as we knew but I thought I might still be able to attend the hearing via MC Teams or Zoom. Your request to appear in person, however, changes that. Would it be possible to be granted leave for this unforeseen circumstance?
A couple of observations can be made about that email. First, it comes well after 15 January, 2024 – the date upon which the applicant was to file and serve her evidence. Second, it talks nothing about her default in filing that evidence or her own affidavit. Third, although she talks about an “[incident]” that apparently has occurred in City B, she does not set out in any sense the connection between that incident or those involved in it and her.
On 2 February, 2024 at about 6.00pm, the applicant again emailed my chambers and said this:
Hi again. Anticipated return last week of February.
That does not make it clear whether she is in Australia or not, although perhaps the inference should be drawn that she was not.
On 5 February, 2024 at about 4.00pm, my chambers sent an email to the applicant saying this:
It is unclear from your email when you would be intending to leave Australia. If you are in Australia on Thursday 8 February 2024, your personal appearance before the Court is required.
On 5 February, 2024 at about 6.00pm an email from the applicant to my chambers said this:
Good afternoon and thank you for your email. It is unclear for me too, since I am in the process of raising some funds. I shall endeavour to comply if still in the country. Kind regards.
The next day, on 6 February, the applicant wrote this:
Please be advised that I won’t be here for the hearing on February 8th. Many thanks for your understanding.
It might be the case that the applicant is overseas. Certainly she has been invited on a number of occasions by my associate to say that, and she has not. The emails that she has sent to my chambers are, at best, ambiguous and at worst, misleading. In those circumstances, I do not perceive that there is any injustice to the applicant by proceeding with the application today in her absence. She has notice of it. She knows of her requirement to appear in person and there is really no adequate and satisfactory explanation for her failure to appear.
Proceeding with the application today, and permitting it, will visit some consequences on the applicant. The first is her application may be dismissed. The second might be, subject to argument, an order for costs. But that consequence, significant as it might be, is ameliorated by the effect of the Rules, which permits the Court to set aside an order – such as the one that I might make on this application – on her application. The Rules permit a subsequent judge to set aside orders that have been made in the absence of a party, in circumstances where the party has provided an explanation for their failure to appear and they can demonstrate that it is likely that the court might make different orders to those sought to be set aside if the matter was reinstated.
To adopt that course here achieves a number of objectives. The first is that it releases the respondent from the further vexation of the proceedings. These proceedings will be at an end. Second, although the proceedings are at an end, the applicant has the opportunity to apply to the court to have them reinstated, but to do so she will need to effectively do what she has been asked to do for more than 12 months now. That is to say, she will have to come along armed with her evidence that will demonstrate that it is likely that the court will make a different order than simply dismissing the proceedings if she is allowed to litigate the dispute.
That does not obviate the prospect that these proceedings will never be resurrected and the respondent will always be under that cloud, at least for a reasonable time after the making of such an order dismissing the proceedings, but there is not much else that can be done.
I am satisfied in the circumstances that it is appropriate to dismiss these proceedings and I do so pursuant to rule 10.27(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The respondent now makes an application for costs. Section 117(1) of the Family Law Act 1975 (Cth) says that, ordinarily, parties to proceedings under the Act should bear their own costs. Section 117(2) provides that the Court has a discretion to make a different order as to costs if it thinks, in the circumstances of the case, it is appropriate to do so. In Penfold v Penfold (1980) 144 CLR 311 the High Court of Australia said that all that is required to enliven the discretion under s 117(2) is a finding of justifying circumstances.
The connection between s 117(2A), which is a list of factors that the Court routinely takes into account when making orders for costs and a finding of justifying circumstances is not entirely clear, but counsel here addressed me by reference to s 117(2A) In those circumstances, I will consider those matters and whether they demonstrate justifying circumstances. The first in the list is the financial circumstances of the parties. There is little evidence before me, but I have had regard to the financial statements filed by the parties in these proceedings when they were initially commenced.
The applicant filed a financial statement on 18 March, 2022, somewhat dated now, but in that, she demonstrated a weekly income of some $273 a week, expenses which well exceeded that, assets of a little over a million dollars, some superannuation, and liabilities of $70,000. It could not be said that she was impecunious. The respondent filed his financial statement on 6 May, 2022 and quite cutely, in my view, said in part B of his financial summary that he was unable to complete any of the information at that time. What a contemptuous position to take in a court document. Anyway, that is what it is. So that is the financial position of the parties.
There is no evidence anybody is receiving Legal Aid in this case.
The conduct of the applicant in these proceedings has been appalling. She is a self-represented litigant, but that is frankly no reason to think that she could not have acted with more alacrity than she has. I accept the submission that the conduct of the applicant in these proceedings has increased the costs of the case. There have been numerous appearances before the court where nothing has been achieved other than a repetitive order made requiring the applicant to do something. That, no doubt, added significantly to the costs.
The applicant has been wholly unsuccessful in the proceedings.
Taking all those things together and to the extent that they might be things relevant to take into account in determining whether there are justifying circumstances, I find that there are justifying circumstances here to depart from the ordinary rule set out in s 117(1) of the Act. Should I exercise the discretion to make an order for costs? For the reasons that I have just set out, I think I should. There has been nothing achieved by these proceedings apart from the vexation of the respondent.
The applicant has been given ample opportunity to present a case and she has failed to do so. No adequate explanation has been provided for that failure and to the extent that it might be said that she is in some way prejudiced by the fact that this proceeding has continued in her absence, it is timely to recall that the last order made required her to file and serve her evidence by 15 January, 2024 and, yet, nothing was done. The information provided by her about her inability to appear, if that is what it was, did not come until well after that date had passed. There should be an order for costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 7 March 2024
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