AYDIN & AYDIN

[2015] FamCA 802

FAMILY COURT OF AUSTRALIA

AYDIN & AYDIN [2015] FamCA 802

PRACTICE AND PROCEDURE – Where proceedings have been extant since 2010 – where the parties failed to comply with procedural orders – where there is no matter that requires a hearing – ordered that proceedings be struck out.

Family Law Act 1975 (Cth)

APPLICANT: Mr Aydin

RESPONDENT: Ms Aydin

FILE NUMBER: MLC 10611 of 2010

DATE DELIVERED: 27 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 27 March 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Meier

SOLICITOR FOR THE APPLICANT: Meier Denison Guymer Pty Ltd

Orders

IT IS ORDERED THAT

1. All extant applications be struck out with a right of the parties to have the applications reinstated upon one or more of such parties certifying to the Registrar that that there are unresolved parenting issues that require a determination by a Judge and that the matter is otherwise ready to proceed to a final hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10611 of 2010

Mr Aydin

Applicant

And

Ms Aydin

Respondent

REASONS

1. These proceedings commenced in the Federal Circuit Court of Australia on 16 November 2010.  It is a somewhat unusual file in that, whilst it has been on foot for many, many years and although numerous orders have been made, both in the Federal Circuit Court and in this Court, very limited material has been filed by both parties.  The matter was transferred to this Court, as the father was at that time facing serious criminal charges.  I have been told by Mr Crabtree, appearing as a friend of the Court for the father this day, that some of those charges were dropped and he was found not guilty of others. 

2. The matter was transferred to this Court on 5 August 2013.  It was listed for a first day of hearing before me on 4 August 2014  and, on the urging of the parties, on that occasion I made an order for a Children’s and Parents Issues Assessment to ascertain the children’s wishes with respect to spending time with the father, which is the issue which lies at the heart of these proceedings.  The matter was otherwise adjourned for mention before me on 11 November 2014. 

3. The Court was then notified that the parties wished to attend mediation or were considering doing so through Victoria Legal Aid, and when the matter was further mentioned for hearing before me on 11 November 2014 orders were made by consent that the parties would attend for counselling with Family Life in Suburb B, and that the father would enrol in and complete a parenting after separation course and a parenting program for communicating effectively with teenagers.  The mother also consented to an order that she would enrol in and complete a parenting after separation course.  The matter was further adjourned for mention before me this day, and I made orders with respect to the father filing an amended application setting out with precision the orders that he seeks, and the mother filing an amended response. 

4. The current situation is that  that the father has completed the parenting after separation course and the further parenting program for communicating effectively with teenagers.  He has not filed an amended application and seeks to rely upon his application which was filed on 16 December 2010.  The mother has neither enrolled in nor completed a parenting after separation course and has not filed an amended response. 

5. When the matter was before me on 11 November 2014, I raised at that time the possibility of striking the matter out with a right to the parties to apply to have the matter reinstated at some later date should there be a matter to be tried.  The parties are continuing the counselling or the therapeutic process at Family Life Service at Suburb B.  There has now been some time spent between the father and the youngest child, and that the two older children, who are 14 and 11 years of age respectively, at this stage want nothing to do with the father and have not been spending any time with him. 

6. In my view, it is not appropriate that this matter simply remain in the list, nor in my view is it appropriate for it to be transferred back to the Federal Circuit Court, it having been transferred to this Court from that Court. It is not, in my view, a question of in which court the matter is dealt   but whether there is a matter that requires a hearing.  Whilst the therapeutic process is continuing, it would appear that there is no purpose in the parties proceeding to a final hearing at this stage.  That does not mean that, if they are unable to resolve matters by way of that therapeutic process to the satisfaction of either party, the matter will not be listed and that there will not be a trial. So, in all of the circumstances, I propose to strike the matter out with a right to the parties to have the matter reinstated.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 27 March 2015.

Associate: 

Date:  23 April 2015