Yashal and Yashal

[2012] FamCA 314

FAMILY COURT OF AUSTRALIA

YASHAL & YASHAL [2012] FamCA 314

FAMILY LAW – PRACTICE AND PROCEDURE – No appearance by respondent

Family Law Act 1975 (Cth)

APPLICANT: Ms Yashal

RESPONDENT: Mr Yashal

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10458 of 2011

DATE DELIVERED: 24 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nisiforou

SOLICITOR FOR THE APPLICANT: Sabelberg Morcos Lawyers

THE RESPONDENT: No appearance

Orders

1. That all applications for final orders be adjourned for hearing before Justice Cronin at 10 am on 8 June 2012 as a one day matter.

2. That by 4 pm on 21 May 2012 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon; and

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

3. That the applicant pay all setting down and trial fees by 4 pm on 21 May 2012.

4. That by 4 pm on 1 June 2012 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon; and

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

5. That no party file any further material other than as provided by these orders without leave of the Court.

6. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

7. That the practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4 pm on 6 June 2012 the following:

   (a)a concise set of orders to be sought if different from those already filed;

   (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

   (c)a list of assets and liabilities; and

   (d)a bullet-point summary of argument in relation to the issues in dispute.

8. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

9. That this order be served forthwith by electronic means to the husband at …@… .com

10. That all documents required to be served for the purposes of the hearing on 8 June 2012 be served electronically upon the husband at …@... .com

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10458 of 2011

Ms Yashal

Applicant

And

Mr Yashal

Respondent

REASONS FOR JUDGMENT

1. This application was administratively adjourned in March to today to be heard in the judicial duty list.  There has been no appearance today by or on behalf of the respondent husband.  The application now before me is to set the matter down as an undefended hearing upon the assumption that the husband has shown no interest to date and, therefore, it is concluded he will not participate in the proceedings.  The application that began the proceedings was filed on 22 November 2011.  It sought orders which the Court could not make in the terms as pleaded and accordingly, I propose to order that the applicant file and serve an amended initiating application setting out with precision the orders she is seeking.

2. To simply ask for the Court to divide property on a percentage basis is not precision.  The proceedings were listed initially on 29 November 2011 before me and at that stage, I declined to make the injunctive orders sought, but adjourned the matter for two days to enable the applicant to at least bring to the respondent’s attention the fact that she was seeking orders.  On 1 December 2011, there was no appearance by or on behalf of the husband and I made a variety of orders restraining the husband and his use of bank accounts in his name and those of some corporate entities.

3. I adjourned the proceedings to 20 December 2011.  I made an order that the wife be at liberty to serve the husband by email to an address that she was then aware of.  Importantly, on 1 December 2011, I made an order that the husband file and serve a response and any affidavit in reply to the affidavit of the wife by 4 o’clock on 19 December.  On 20 December 2011, I was satisfied that the December 1 order had been brought to the attention of the husband.

4. I extended the injunctions and adjourned the proceedings to the registrar to effectively give the wife an opportunity to get herself ready for an undefended proceeding if the husband had not complied with the orders that I made on 1 December.  I made a further order that the husband be served with a copy of the reasons I gave that day to the same email address.  On the file there appear a number of affidavits of service which are a little clumsy, but they make it clear that various documents have been served upon the husband electronically to one email address.

5. Counsel for the applicant has told me today that there is no response to any of those emails.  No doubt that issue will be clarified in the affidavit material that the wife now seeks to file.  I propose to give the husband another opportunity to file material, but it will be after the wife files her material for trial.  It seems to me that the husband has been given ample opportunity to file material.  Leaving aside the fact that he was served with the documents that set out his obligations under the rules, I made a specific order on 1 December 2011 for him to file a response so he could actively participate in the proceedings.

6. To the extent that he fails to comply with his obligations under the rules and to comply with that order, the Court can take the view that he is not going to participate in the proceedings, but, as an abundance of caution, I will make an order again that he files a response.  But to the extent that he reads these reasons, he should be under no misapprehension that if he fails to do so on the next occasion, I shall give the wife an opportunity to proceed on the return date on an undefended basis.

7. Proceeding on an undefended basis is not a default position, as would apply in many of the civil jurisdictions around Australia.  It is often said that proving a case on behalf of an applicant in an undefended case is more difficult than proceeding to prove a case on a defended basis.  This is a warning to the applicant that she needs to ensure that the rules of evidence are followed and that all documents that are filed comply with the necessary Court rules as well as the Evidence Act.

8. To do otherwise would mean that a respondent reading those documents might justifiably conclude that the applicant cannot prove her case and, therefore, would not bother to attend.  In this case, if the case is to proceed, then, I shall deal with it on an undefended basis in the event that the husband fails to comply with the orders of the Court thus far made as well as the orders I now propose to make.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 April 2012.

Associate: 

Date:  4 May 2012