Baird and Baird

[2007] FamCA 104

FAMILY COURT OF AUSTRALIA

BAIRD & BAIRD [2007] FamCA 104

FAMILY LAW - PRACTICE AND PROCEDURE - Non-appearance of a party - Property settlement - Potential interest of third party

Family Law Act 1975 (Cth)

HUSBAND: Mr Baird

WIFE: Mrs Baird

FILE NUMBER: MLF 38 of 2006

DATE DELIVERED: 27 February, 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 27 February, 2007

REPRESENTATION

SOLICITOR FOR THE HUSBAND No appearance

COUNSEL FOR THE WIFE: Ms Wheeler

SOLICITOR FOR THE WIFE: Cater & Blumer

Orders

1. That as soon as practicable the wife serve the husband’s former wife, H, and the husband’s daughter, G, with :

   (a)copy form 1 application filed 9 May, 2006;

   (b)a letter setting out with specificity the final property orders sought by the wife;  and

   (c) sealed copy of this order.

1. That in the event the husband’s former wife or daughter seeks to intervene in these proceedings, she or they file and serve a form 1A response and statement of financial circumstances no later than 19 March, 2007.

1. That the wife have leave to issue a subpoena addressed to L Pty. Ltd., returnable on 22 March, 2007.

1. That the further hearing of the wife’s application for final property orders be otherwise adjourned to a registrar’s list at 10:00 am. on 22 March, 2006, in Albury.

1. That the wife serve the husband with a sealed copy of this order by sending it :

   (a)to Mr B, solicitor, with a request that he forward it to the last known address of the husband;  and

   (b)by serving it on the husband’s daughter when serving her with documents pursuant to paragraph (1) hereof.

1. That the reasons for judgment this day be transcribed and copies made available to the parties. 

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 38  of 2006

Mr Baird

Husband

And

Mrs Baird

Wife

REASONS FOR JUDGMENT

1. These proceedings commenced on 9 May, 2006 when the wife filed a form 1 application seeking final parenting orders.  Despite a number of directions, the husband has filed no document in the proceedings.  On occasions, a solicitor (Mr B) has appeared to mention the case for the husband, but he has never filed a notice of address for service.  Nor has the husband. 

1. In these circumstances, the Court would usually hear the wife’s application on an undefended basis today.  However, the evidence raises the possibility that someone other than the husband and wife may have an interest in relevant assets.  One asset is the sum of about $9,000 held in trust in Queensland, being the proceeds of sale of a property there.  That property was registered in the name of the husband and his adult daughter from an earlier marriage. Further, another property in dispute remains registered in the name of the husband and his first wife.  As the husband has failed to file any material the Court cannot know what his evidence is in respect of those two assets. 

1. In the circumstances, I propose to order that the husband’s former wife and daughter both be served with a copy of the wife’s application for final orders, together with a letter setting out with specificity the orders that she seeks.  Obviously, she will need to state with precision the orders sought in respect of the relevant land and cash held in trust.  If either or both of the women seek to intervene, they must file a response and statement of financial circumstances by 19 March.

1. The application will otherwise be adjourned to a registrar’s list in Albury at 10:00 am. on 22 March, 2007. The wife has leave to issue a subpoena addressed to the former mortgagee in respect of the Queensland property, being L Pty. Ltd. That will be returnable on 22 March, 2007.

1. I note that Mr B appeared to mention the case at the callover held prior to the commencement of this circuit.  This morning Mr M advised the Court that Mr B could not act for the husband, that relating to work previously done for Cater and Blumer (the solicitors for the wife).  He advised the Court that Mr B was trying to arrange for someone else to mention the matter for the husband.

1. In my view this case has gone far beyond a solicitor “mentioning” the matter.  Either the solicitor is on the record for the husband, or is not.  The case cannot be left in limbo.  To date, the husband has made no attempt to play any role in the proceedings.  I appreciate that the solicitor who has appeared has done so as a courtesy to the Court, as well as the husband.  However, in my view that practice cannot continue, leading as it has to inevitable adjournments.  Either the husband instructs a solicitor to appear for him, or appears himself.  If he does neither, he must face the risk that the matter will be heard on an undefended basis, without any input from him. 

I certify that the preceding
6 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BAIRD & BAIRD