Thrussell and Thrussell

[2019] FamCA 344

FAMILY COURT OF AUSTRALIA

THRUSSELL & THRUSSELL [2019] FamCA 344

FAMILY LAW – PRACTICE AND PROCEDURE – Application – where husband has failed to prosecute his application – where there are parenting proceedings on foot in the Supreme Court of Country B – wife and children reside in Country B – the application of the husband dismissed.

Family Law Rules 2004 (Cth), r 11.02

In the Marriage of Gilmore (1993] FLC 92-353
Voth v Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538

APPLICANT: Mr Thrussell

RESPONDENT: Ms Thrussell

FILE NUMBER: MLC 11833 of 2017

DATE DELIVERED: 30 May 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 15 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fuller

SOLICITOR FOR THE APPLICANT: Tischer Liner FC Law

THE RESPONDENT: In Person

Orders

1. The orders made 15 May 2019 be discharged.

2. The husband’s application as contained in his response filed on 24 November 2017 is dismissed.

3. The matter be removed from the list of active cases.

4. The question of the husband’s payment, if any, of the wife’s costs and on an indemnity or other basis from 8 April 2019 be determined by the Court upon a consideration of any written submissions, together with any affidavit evidence sought to be relied upon by the parties. Such submissions are to be filed and served by the wife within 28 days of these orders, and thereafter by the husband within 28 days of service of the wife’s submissions and affidavits, if any, upon him. Proof of such service upon the husband is to be provided to the Court by the wife. Service can be effected by ordinary pre-paid post addressed to Mr Thrussell at N Street Town M.

AND THE COURT NOTES THAT:

A.The husband’s application in a case as to parenting matters filed on 24 November 2017 was dismissed by order of Justice Johns on 23 April 2018.

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 Thrussell & Thrussell 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: MLC11833/2017

Mr Thrussell

Applicant

And

Ms Thrussell

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced in November 2017 upon the Applicant wife (‘the wife’) filing an initiating application seeking final property orders. The Respondent husband (‘the husband’) responded to that application by filing, on 24 November 2017, a response to the initiating application; a notice of child abuse, family violence or risk of family violence; a financial statement sworn 21 November 2017; and an affidavit of evidence sworn by the husband on 21 November 2017.

2. In the husband’s response document he sought both final property and parenting orders.  The parenting orders were in respect of the parties’ two children, Y born in 2011, who is now seven years of age, and X born in 2015, who is now four years of age (‘the children’).  The husband sought, relevantly, the following:-

   a)that he have sole parental responsibility for the children;

   b)that the children live with him in Australia;

   c)that the children spend time and communicate with the wife at such times and on such conditions as agreed between the parties or as ordered by the Court; and

   d)that he retain the children’s passports.

3. In addition to filing his response seeking final parenting orders, the husband filed an application in a case seeking interim parenting orders and an urgent hearing of that matter. The children were, at that time, and continuing, residing with the wife in Town A in Country B.

4. At the time of the husband’s filing of his material he was represented by P Lawyers. That representation ceased upon the filing by that firm of a notice of ceasing to act for the husband, with such notice being filed on 10 January 2018.  Thereafter, the husband became, and remained, a litigant in person.  He filed no further affidavits of evidence despite orders of the Court requiring that he do so.

5. The wife was throughout the proceedings represented by her solicitors at Tisher Liner FC Law.  She complied with orders of the Court and actively participated in the proceedings including, in particular, the prosecution of her application seeking property settlement orders and her further application that the husband’s application for parenting orders be dismissed.

Orders

1. Whilst a number of orders were made in the proceedings, relevantly, for the purposes of these reasons, the following orders were made.

2. On 5 February 2018 Registrar Jenkins ordered, amongst other orders, that the husband appear and/or be represented on the adjourned hearing date of 20 February 2018; that he provide to the wife medical evidence (by 9 February 2018) going to his non-attendance on 5 February 2018 (order three of the orders); and in order four of the orders the wife’s costs were fixed and reserved in the sum of $300. A previous costs order had been made by the Court on 16 January 2018 (order two) which provided that the wife’s costs fixed in the sum of $1,241 be reserved until further hearing. That order for costs was not dealt with on 5 February 2018 and nor was the order for costs made on 5 February 2018 subsequently dealt with on 20 February 2018. 

3. On 20 February 2018 Senior Registrar Field made orders, again, in circumstances where there was no appearance for or on behalf of the husband.  The proceedings were adjourned, to the Judicial Duty List on 10 April 2018.  The husband was required to comply with order three of the orders made 5 February 2018 and by virtue of order four of the orders the husband was to:-

   file and serve any material he seeks to rely upon at the adjourned date in the Judicial Duty List by no later than 4:00pm on 3 April 2018.

4. The orders of 20 February 2018 further provided that in the event the husband failed to comply with his obligations pursuant to those orders, or failed to appear on the adjourned Judicial Duty List date, the wife was at liberty to seek that the matter proceed on an undefended basis on the adjourned date.  The wife’s costs of that day were again reserved.

5. On 10 April 2018, the husband attended the hearing by telephone. Order four of the orders made 10 April 2018 provided that the wife’s costs of that day were reserved. The proceedings were again adjourned, with Johns J ordering in order two of those orders that the husband personally attend on the adjourned hearing date on 23 April 2018. Order three of the orders provided that in the event the husband failed to appear at the adjourned hearing:-

   …the wife have leave to proceed with an application for final property orders and the dismissal of the husband’s parenting application on an undefended basis.

6. On 23 April 2018, the husband attended in person. The wife was represented by counsel.  Final property orders were made by consent.  As a consequence, all extant property applications were dismissed and removed from the active pending cases list. Order 13 of those orders additionally provided that all extant interim parenting applications were dismissed.  Order 14 provided:-

   That all extant applications for final parenting orders be placed in the list of cases awaiting allocation to a judicial docket.

7. On 5 April 2019, the matter was before Johns J.  There was no appearance by the husband. The proceedings were listed to trial as a one day matter, and both parties were required to file any affidavit material on which they sought to rely. In particular, the husband was ordered to file his affidavit material by 19 April 2019.  The husband’s personal attendance at Court was also ordered by virtue of order four which provided that the husband personally attend the hearing on 15 May 2019, and order five of those orders provided that in the event of the husband’s failure to comply with order four:-

   …the wife have leave to seek to proceed with her application on an undefended basis.

The Hearing

1. The husband did appear in person at the trial.  He had not filed any affidavit evidence in accordance with the orders of the Court and had only that material which was initially filed in November 2017.  The husband said as to his failure to prosecute the proceedings that:-

   a)he had received really bad advice; and

   b)he didn’t realise about the paperwork.

2. In the circumstances of the husband’s failure to participate in the proceedings, including the provision of relevant affidavit evidence, the wife sought a dismissal of the husband’s parenting order application on an undefended basis.

Documents Relied Upon by the Wife

1. The wife proceeded on her amended initiating application filed 3 May 2019.  She relied on affidavits of evidence sworn by her on 5 January 2018 and 3 May 2019, together with a financial statement sworn by her on 23 March 2018.  She also relied upon an affidavit of evidence of Mr Aaron Douglas van der Heyden, principal of Tisher Liner FC Law, sworn 23 March 2018.  The orders as sought by the wife in her amended initiating application were,  relevantly, as follows:-

   a)that the husband’s response to initiating application filed on 24 November 2017 be dismissed;

   b)that the matter be removed from the list of cases; and

   c)that the husband pay the wife’s costs on an indemnity basis from 8 April 2019 to the date of final orders.

History

1. The wife was born in 1988 in Town A Country B.  She is now aged 30 years.  The husband was born in 1974 in Melbourne, Australia and he is now aged 44 years.  The parties commenced their cohabitation in 2009, that cohabitation commencing in Country B where the husband worked in hospitality and where the wife lived.  The parties took up residence as a couple in Australia, in or around October 2009.  Despite moving away from Country B, the wife maintained a very close connection with her family which includes three siblings. She communicated with her family by Skype, text message and/or email on an almost daily basis.

2. In late 2012 the parties were married in Australia. 

3. The parties’ children were born in Australia.

4. The parties separated in September 2017 in Country G.  The family had relocated to Country G upon the husband securing full-time employment in Country G. They had been living there from February 2017.  Prior to the parties’ move to Country G, they had lived as follows:-

   a)from around October 2009 the parties lived with the husband’s parents and sister in Suburb H, whilst the parties each looked for employment;

   b)in January 2010 the wife went to live with her aunt in Town K whilst the husband began a new job in Town C, Western Australia, working on a mine site. Shortly thereafter the husband obtained further employment in Town J in Western Australia;

   c)between February 2010 and July 2010, the parties worked in Town J before the husband again changed roles which required the parties to move to Town L in Western Australia where they resided between July 2010 and June 2011;

   d)between June 2011 and February 2017, which included the period in which the children were born, the parties lived in Town M, Victoria.  The husband held a number of jobs during that time in Town M, though none for significant periods of time. In late 2013 and early 2014 the parties sought out employment opportunities in Country B to no avail;

   e)in February 2017, the parties determined to live in Country G for the purposes of the husband obtaining further employment. They were granted a two year working visa and residency for the family in Country G.

5. Following the parties separation in September 2017, the wife returned to Country B with the children.  She had no support network in Country G, having only lived there for approximately seven months. The parties’ home in Australia had been rented out and most of their belongings sold as, at the time of their departure, the parties had no intention of returning to Australia in the foreseeable future.

6. The wife returned to Country B with the children for her and the children to reside with her parents. They provided the financial and emotional support that she required. She did not tell the husband of her decision to separate from him. It followed an incident which had occurred on 4 September 2017, where, after the husband had consumed a significant amount of alcohol over the course of lunch and become visibly intoxicated, the husband insisted on driving with the wife and children in the car. He firstly drove into a parked car, and then narrowly avoided colliding with another car on a main road. The wife requested that he stop driving and let her drive, at which point, on the evidence of the wife, the husband “swung his arm and struck me across the chest whilst yelling at me to get out of the car”.  The wife refused to exit the car, in circumstances where she was concerned the husband would drive away with the children in the car.  The wife described this incident as the “last straw” for her.

7. Prior to the above episode, the wife had witnessed the husband abuse alcohol and marijuana, over a period of time, which increased whilst the parties resided in Country G. Additionally, the wife was unhappy with the husband’s unpredictable employment and the lack of support she felt she was receiving from him.

8. Upon the wife’s arrival in Country B in September 2017, she notified the husband of her intention to end the marriage.  She applied to the Magistrates Court of Country B for a family violence protection order for herself and the children, which she obtained.  She and the children took up residence in the household of the wife’s parents, where they remain. The husband has provided the wife with no financial assistance in relation to the children’s living expenses since September 2017, and she is assisted in the payment of these by her family members.

9. After moving to Country B with the children, the wife continued to facilitate the husband having regular telephone communication with the children, often daily.  She engaged solicitors in Australia to begin the process of resolving the parties’ matrimonial matters, especially in respect of their outstanding financial commitments in Australia.  She also instructed her solicitors to begin discussions with the husband and subsequently his solicitors, as to the husband having face to face time with the children in Country B, supervised by her and/or her family members.  These proposals were also communicated directly by the wife to the husband.

10. Proceedings were issued in Australia by the wife in respect of the parties’ property and in Country B for urgent interim custody orders (and final custody orders) in respect of the children. The proceedings in Country B, instituted by the wife on 17 November 2017, were in the Supreme Court of Country B (‘the Supreme Court’).  The wife had issued her property proceedings in the Family Court of Australia.

11. Following the commencement of the proceedings in Country B, the husband submitted to the jurisdiction of the Supreme Court and was present at, and actively participated in, two of the Country B proceeding hearings in or around late September 2018 and in or around November 2018.  Earlier orders of 28 June 2018 adjourned the proceedings to 26 July 2018. Orders two and three of the orders of 28 June 2018 were as follows:-

    2. The Respondent be hereby notified of the Applicant’s intention to obtain final custodial orders on 26 July 2018.

    3. The Respondent be served with a copy of this order by the Applicant by substituted service and proof of such service to be filed accordingly.

12. On the subsequent return date of 26 July 2018, a minute was noted by the Supreme Court which included an adjournment of the proceedings to 24 September 2018, the wife’s counsel having no objection to the husband’s request for such adjournment. Note two of the minute said as follows:-

    On 3 July 2018, the defendant sent an email requesting an adjournment in order to get organised.

13. It is clear the husband is participating in the proceedings in the Supreme Court and both parties agreed on the hearing of this matter that the Supreme Court proceedings remain on foot and a final hearing date has yet to be allocated by the Supreme Court.

Husband’s Failure to Prosecute Proceedings

1. The husband’s earlier participation in these proceedings is as set out in the paragraphs under the heading “Orders” above.  Those orders highlight:-

   a)that the husband was, by the orders of 5 February 2018, obliged to personally attend the Court on 20 February 2018. He did not do so.  Further, he was obliged to provide to the wife medical evidence in relation to his non‑attendance at the hearing on 5 February 2018.  No medical evidence was provided by the husband;

   b)pursuant to orders of 20 February 2018, the husband was obliged to file an “affidavit together with any medical evidence with respect to his failure to appear” at the hearings of 5 February and 20 February 2018.  The husband has not filed an affidavit to that effect.

2. The husband also failed to attend a call over on 5 April 2019, having indicated by email to the Court that it had not provided him with sufficient notice of the Court event.

3. The husband has made no proposal to the wife, in respect of his parenting application, since the filing of his response and application in a case documents in November 2017, nor has he responded to the wife’s parenting proposal as forwarded to him by her solicitors on 7 June 2018 which was forwarded with a view to settling the parenting dispute.

4. The Family Law Rules 2004 (Cth) provide as follows:-

   RULE 11.02

   Failure to comply with a legislative provision or order

   (1)  If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

   Note:          A defaulter may apply to the court for relief from this rule (see rule 11.03).

(2)  If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

(a)  dismiss all or part of the case;

(b)  set aside a step taken or an order made;

(c)  determine the case as if it were undefended;

(d)  make any of the orders mentioned in rule 11.01;

(e)  order costs;

(f)  prohibit the party from taking a further step in the case until the occurrence of a specified event; or

(g)  make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

Note:          This list does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.

1. The Court has an implied power to govern its own processes and avoid abuses of process.[1]  That implied power is additional to the specific powers as set out in the Family Law Rules 2004 (Cth).

   [1] Voth v Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538; In the Marriage of Gilmore (1993) FLC 92-353, 79‑728.

2. Since filing his response on 24 November 2017, the husband has not taken any steps in the proceedings to advance his parenting application. Over 18 months have elapsed since the filing of his response.  He has, in that time, participated in two hearings in relation to the custody proceedings in the Supreme Court.

3. I accept the submission of Counsel for the wife that the failure of the husband to comply with Court ordered obligations, his failure to attend hearings, including when ordered to do so, and the absence of any steps taken by him to progress his application as contained in his response document, has the effect of making the maintenance of the existence of the husband’s application before this Court, an abuse of process. Further, his failure to file necessary affidavit evidence and thereby his non-compliance with orders of the Court has rendered the affidavit evidence of the wife unchallenged. It is that evidence which is set out in these reasons.

Other considerations

1. The wife and children are citizens of Country B and Australia. The wife has been the primary carer of the children since their births.  The children are significantly attached to her, both as a result of her role as the primary carer and when taking into account their relatively young age.

2. The wife was born in Country B and she has maintained close connections with her family since she commenced her relationship with the husband in 2009.  The children also have a close connection to their extended maternal family in Country B. The wife and children, and in 2013 (only) the husband, visited Country B for holidays almost yearly with all travel expenses met by the wife’s parents.

3. Following the separation of the parties, most of the wife and children’s living expenses were initially paid by the wife’s parents, and, following the wife becoming employed by Company D of Country B, by the wife. The wife’s parents however continue to contribute to the children’s living and schooling expenses.  The wife’s parents have also assisted her in meeting her significant legal fees with respect to both the proceedings in Australia and Country B. The husband has provided no financial support for the children.

4. The children, from the commencement of the school year in 2018, have attended the Town A School. The wife incurs school fees in the sum of approximately $8,000 per annum for Y and $5,000 per annum for X. The children’s attendance at the Town A School ensures a good education for the children.

5. In the husband’s financial statement filed in November 2017, he deposed to receiving net income in the sum of $2,520 per week and expending only $1,535 per week.  The husband said, from the bar table at trial (which is not evidence) words to the effect that his bank account does not reflect receipt of income in that quantum.  The husband, of course, has placed no evidence before the Court as to what his current receipt of income is and the Court can only look to that which he filed in November 2017 as to what his income was at that time. He was then employed in the transport industry.

6. The parties’ significant debts, accrued during their relationship, meant that the wife received no funds nor assets of any significance consequent upon the making of the final property orders.  The husband was able to retain ownership of the former matrimonial home at N Street Town M in the State of Victoria. Such ownership was subject to encumbrances.

7. The wife does not have the income nor income earning ability to continue to pay legal fees in respect of two parallel proceedings in two jurisdictions. She does not have the financial capacity to travel to Australia for the purpose of the Australian proceedings.

8. Since separation the husband has visited the children in Country B from:-

   a)17 November 2017 until 20 November 2017;

   b)21 September 2018 until 26 September 2018; and

   c)29 November 2018 until 3 December 2018.

   The husband’s financial position has enabled him to so travel. During at least one of those visits, the husband enquired of the wife whether arrangements could be made for him to spend regular time with the children if he were also to relocate to Country B. During those discussions, the husband indicated to the wife that he had been speaking with potential employers and had in fact received a job offer but turned it down as he did not consider the pay to be sufficient. 

9. It is clearly in the children’s best interests that the proceedings continue in the Supreme Court.  The husband has not demonstrated a desire consistent with the maintenance of proceedings in Australia and any number of relevant witnesses for the proceedings in Australia, live in Country B and would need to travel to Australia for a final hearing. That includes the wife and children. That will likely occur at considerable expense to the wife, who is simply unable to meet that expense. It would also involve unnecessary disruption to the children who live in, and attend school in, Country B.

10. The wife’s parenting application in the Supreme Court was filed and served on the husband first in time.  That parenting proceeding remains on foot in the Supreme Court, a court of competent jurisdiction. It is a jurisdiction to which the husband has submitted. Thus additionally, the Supreme Court is the most appropriate venue for the proceedings to continue with Country B being the most appropriate jurisdiction to hear the parties’ matter as to where the children reside.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 30 May 2019.

Associate:

Date:  30 May 2019