Yenger & Wilbert

[2023] FedCFamC2F 331

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Yenger & Wilbert [2023] FedCFamC2F 331

File number(s):	PAC 4459 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	24 February 2023
Catchwords:	FAMILY LAW – Property – Dismissed for default – Ex tempore judgment
Cases cited:	Aon Risk Services Pty Ltd v Australian National University (2009) 238 CLR 175
Division:	Division 2 Family Law
Number of paragraphs:	24
Date of last submission/s:	24 February 2023
Date of hearing:	24 February 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Roberts
Solicitor for the Applicant:	Khalil Family Lawyers Pty Ltd
Counsel for the Respondent:	Ms Bridger
Solicitor for the Respondent:	Bray Jackson & Co
Counsel for the Independent Children's Lawyer:	Ms Rutkowska
Solicitor for the Independent Children's Lawyer:	Ark Law Lawyers

ORDERS

PAC 4459 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS YENGER

Applicant

AND:

MR WILBERT

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE OBRADOVIC
DATE OF ORDER:	24 FEBRUARY 2023

THE COURT ORDERS THAT:

1.By consent and on a final basis, in respect of the parenting proceedings, orders are made in accordance with the Minute of Order signed by the parties, initialled and dated by the Court today, placed on the Court file as attached hereto.

2.The Applicant and Respondent are to pay $2,035 each on account of the Independent Children’s Lawyer’s costs within 14 days.

3.Pursuant to rule 10.27(1) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court dismisses the Amended Initiating Application filed 26 October 2020.

4.Pursuant to rule 10.27(2) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court dismisses the Response to Application for Final Orders filed 14 September 2020.

THE COURT NOTES THAT:

A.Neither the Applicant or the Respondent, or the solicitors for the Applicant and Respondent, complied with Court orders dated 2 December 2022.

B.In all circumstances the Court is not satisfied as to the explanation of delay, the non-compliance with Court orders, and.is not satisfied that further indulgences should be granted.

C.The Court is satisfied that each party was in default pursuant to rule 10.26 when they came before the Court on 2 December 2022 and are in default today in respect of the Court orders made on 2 December 2022.

D.The Court is satisfied these orders are just in relation these proceedings and in relation to the other applicants before this Court.

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 the pseudonym Yenger & Wilbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Delivered Ex Tempore, Revised from Transcript

JUDGE OBRADOVIC:

1. This matter is before me today for a show cause hearing, having been listed by the Court on 2 December 2022, following both parties’ non-compliance with Court orders made on 11 August 2022.

2. The applicant in the proceedings is the former de facto wife of the respondent. At the time that she commenced these proceedings by way of Initiating Application on 27 August 2020, she sought both property and parenting orders. The financial orders that were sought are as follows: 

   (a)That there be a just and equitable division of the assets of the parties inclusive of superannuation pursuant to section 90SM of the Family Law Act 1975 (Cth) (“FLA”);

   (b)That the applicant de-facto wife be excused from further particularising final orders sought pending the completion of discovery and valuations; and

   (c)Such further or other orders as this honourable Court deems fit.

3. Part of that Initiating Application included relief sought on an interim basis, including that leave be granted pursuant to s.44(3) of the FLA to institute proceedings against the respondent under s.90SM, as at that point in time the parties were some six months or so out of time for the commencement of proceedings.

4. The respondent filed his Response to Application for Final Orders on 14 September 2020. Even though on the face of the document he says that he seeks orders on a final basis in relation to both parenting and financial, the document that was filed by him does not set out any financial relief sought.

5. The matter was before the Court on a number of occasions between the commencement of the proceedings in August 2020 up until today. The matter has been before the Court for close to two and a half years. In that time, the parties have had ample opportunity to work out their respective cases and ascertain the matters that they needed to ascertain in order to be able to prosecute the relief that each of them sought in respect of the financial aspect of the relationship.

6. On 29 March 2021, an order that was made by consent, that the respondent, within 14 days, file and serve an Amended Response. He has not done so. Indeed, he has not filed an Amended Response at any point in time.

7. On 29 March 2021, the Court by consent of the parties, granted leave for the applicant for alteration of property interests pursuant to s. 90SM to be commenced out of time.

8. On 11 August 2021, the Court directed the parties to attend family dispute resolution. That order was not complied with.

9. On 9 June 2022, the Court was advised that the parties had reached final resolution in respect of parenting issues and, again, the Court was advised that in respect of property issues, the parties were obtaining valuations and were proposing to attend a private mediation in the adjourned period.

10. The matter was adjourned from 9 June to 11 August 2022. On 11 August 2022, when the matter came before me, both parties were represented, and a number of directions were made to prepare the matter for final hearing. The matter was listed for a compliance check and possible allocation of a hearing date. The parties were directed to file 14 days prior to the compliance check any Amended Application, any Amended Response, any Amended Financial Statement, a single consolidated trial Affidavit relevant to their case and any Affidavits by supporting witnesses upon which they rely.

11. The Court ordered as part of those orders on 11 August 2022 that no party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained. The Court further ordered that seven days prior to the compliance check each solicitor with carriage of the matter file and serve an affidavit of compliance confirming that the matter was ready to take trial dates, confirming the trial directions had been complied with, confirming all other directions had been complied with, if there was noncompliance, the reasons for noncompliance, why a costs order should not be made against the party who has failed to comply, and annexing a jointly completed Call-Over sheet.

12. The Court does not need to explain, although it will today, as to why it is important for parties to comply with trial directions. These parties are not the only parties before this Court. They are not the only parties seeking relief. They are one of hundreds of families who come before this Court on an annual basis seeking the Court’s assistance in resolving their dispute. It is upon the party who commences proceedings and upon the litigants in the proceedings to comply with Court orders and to do everything that is within their power to ensure that Court orders are complied with. The same, of course, and even to a greater extent is an expectation of the legal practitioners who represent parties who are before this Court, particularly where those legal practitioners are directed to do something. As officers of the Court, they have particular duties to the Court which go beyond their duties to their clients.

13. Neither the applicant, nor the respondent, nor the applicant’s nor the respondent’s solicitors complied with the Court orders of 11 August 2022.

14. Consequent upon that noncompliance, the Court then listed this matter for a show cause hearing today and granted the parties leave to file and serve an affidavit of no longer than five pages explaining the non-compliance and why the matter should not be dismissed for default by 4pm on 10 February 2023.

15. Neither the applicant nor the respondent complied with that Court order.

16. What the applicant filed was an affidavit that was 43 pages in length, including annexures, and, indeed, the body of the affidavit itself was longer than five pages in length. Not only was there noncompliance in relation to the length of the affidavit, but the affidavit itself actually did not explain the noncompliance with the Court’s orders and why the matter should not be dismissed.

17. The extent of the evidence before the Court seems to be a suggestion that because the parties decided to go to a mediation on 29 November 2022, and that they were focusing their attention on the mediation, that they did not consider it a requirement or did not consider it necessary to comply with Court orders to ready their matter for trial. As has been conceded, the parties ought to have approached the Court for an extension of the trial directions and could easily have done that. The least that they could have done is to explain, by way of an affidavit that should have been filed in accordance with the orders of 2 December 2022, why it is that there has been noncompliance and what the parties have been attempting to do to try and resolve this matter.

18. The respondent did not even file an affidavit in time, that is, within the time that he was granted leave to do so; he did not file an affidavit explaining his noncompliance by 4 pm on 10 February 2023. Instead, he filed an affidavit on 22 February 2023. Once again, that affidavit not complying with the direction as to its length and, indeed, that affidavit not explaining in any meaningful way why it is that there has been noncompliance and why the matter should not be dismissed for default.

19. Both of the parties come today to Court with counsel in tow seeking the Court’s further indulgence and extension of time.

20. Neither party is in a position to file their trial material today or, indeed, within a reasonably short period of time. The respondent says that he needs 28 days to file his trial Affidavit and presumably his Amended Response, which in line with the orders of 29 March 2021, should have originally been filed by or about mid-April 2021. The applicant says that she needs about 14 days to file her Further Amended Initiating Application and Affidavits in support.

21. The Court has not been taken to any evidence why it will take the parties that length of time to file material which should have on the last occasion been filed by about mid-November 2021.

22. In all of the circumstances, the Court is not satisfied as to the explanation of the delay, as to the explanation for noncompliance with Court orders, and the Court is not satisfied that any further indulgence should be granted. The parties are reminded of what the High Court has said in Aon Risk Services v ANU,[1] where the Court set out at length the basic principles regarding the proper conduct of proceedings and the risks of not complying with such principles, including of efficient trial management.

    [1] Aon Risk Services Pty Ltd v Australian National University (2009) 238 CLR 175.

23. The Court is satisfied that each of the parties was in default pursuant to rule 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) when they came before the Court on 2 December 2022 and, indeed, that they are in default today in respect of the orders that were made on 2 December 2022.

24. Pursuant to rule 10.27(1) of the Rules, the Court dismisses the Amended Initiating Application filed on 26 October 2020, and pursuant to rule 10.27(2), the Court dismisses the Response to the Application for Final Orders filed on 14 September 2020. The Court is satisfied that these orders are just not only in relation to these proceedings but also in relation to the hundreds of the other applicants who are before this Court.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       24 March 2023