Cavallio and Cavallio

[2008] FamCA 1137

FAMILY COURT OF AUSTRALIA

CAVALLIO & CAVALLIO AND ORS [2008] FamCA 1137

FAMILY LAW – PROCEDURE – Directions hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms L Cavallio

RESPONDENT: Mr F Cavallio

SECOND RESPONDENT: Ms A Cavallio

THIRD RESPONDENT: Mr M Cavallio

FOURTH RESPONDENT: Mr V Cavallio

FIFTH RESPONDENT: Mr C Cavallio

SIXTH RESPONDENT: L & F Pty Ltd

FILE NUMBER: MLF 3659 of 2005

DATE DELIVERED: 16 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 December 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: O’Connor Sraj Lawyers

COUNSEL FOR THE RESPONDENTS: No appearance

Orders

1. That the final hearing of all outstanding applications be listed before the Honourable Justice Bell as the second case in the list commencing on 14 April 2009 as an estimated one day matter.

2. That the reasons this day be transcribed and be made available to all parties at the addresses shown on the court record or the last know address to the wife.

3. That a copy of the orders made this day be sent to all parties by the solicitor for the wife as soon as practicable after receipt of the sealed copy.

4. That by 4.00pm on 27 March 2009, the wife file and serve on all other parties by post:

   (a)a list of precise orders to be sought;

   (b)any affidavit material upon which she intends to rely; and

   (c)a statement of financial circumstances satisfying the requirements of Order 13 of the Family Law Rules 2004.

5. That by 4.00pm on 3 April 2009, the husband and any other parties seeking orders shall file and serve upon all other parties:

   (a)a response setting out with particularity, any orders to be sought;

   (b)any affidavit material upon which that party intends to rely; and

   (c)a financial statement that satisfies the requirements of Order 13 of the Family Law Rules 2004.

6. That the wife pay the relevant trial fee or obtain a waiver thereof by 4.00pm on 27 March 2009.

7. That there be general liberty to apply.

8. That the matter be listed for mention before me on 11 March 2009 at 9.00am.

IT IS NOTED that publication of this judgment under the pseudonym Cavallio & Cavallio and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3659 of 2005

MS L CAVALLIO

Applicant

And

MR F CAVALLIO

Respondent

MS A CAVALLIO

Second Respondent

MR M CAVALLIO

Third Respondent

MR V CAVALLIO

Fourth Respondent

MR C CAVALLIO

Fifth Respondent

L & F PTY LTD

Sixth Respondent

REASONS FOR JUDGMENT

1. This is the case management hearing that arises as a result of a direction that I gave in November for the matter to be listed for final hearing.  On 24 November 2008, letters were sent by the registrar, indicating that the hearing would be on today, 16 December 2008, at 3 pm, and specifically the case would either be fixed for final hearing in the months from 27 January until 30 April 2009 or possibly some other course of action might be taken.

2. This is a most unusual case in the sense that the marriage is a long one and involves one child.  The application was filed by the wife on 14 December 2005.  It was not filed by her current practitioners.  It sought a variety of orders but importantly, for the purposes of today's exercise, it named as respondents, a number of family relatives of the husband and wife, including their son, who is an adult, and also a corporate entity of which I am told the husband and wife are the directors.

3. The logic behind the joining of those parties was that apparently the husband seems to have lodged caveats in respect of a number of real properties in the names of these parties, asserting that they have a caveatable interest by virtue of a constructive trust.  The wife seems to suggest now that there was absolutely no basis for that and that the husband unofficially concedes that.

4. In any event, the wife filed an amended application seeking relief on 13 September 2006, at which point in time the husband had not filed any responding material.  In her application amended on 13 September 2006, she did not alter the position of the joined parties. 

5. The husband, however, reacted to that amended application by filing his own response, seeking orders on 27 October 2006.  That application was filed on his behalf by a legal practitioner.  The court record shows that that practitioner continued to act for the husband until 26 May 2008. 

6. It is apparent, however, from reading the various documents on the file that the husband has not been an active participant in the proceedings.  Notwithstanding he filed the response in October 2006, he was not seen to have filed anything else of any significance, although he does seem to have filed a financial statement in September 2006 in which he described himself as a pensioner.

7. A very disconcerting course of conduct appears to have happened in March of 2008 when the husband, or someone on his behalf, filed a number of notices of discontinuances.  Those discontinuances seem to have been filed in the names of the other respondents to the proceedings.  Why that was done escapes me, having regard to the fact that none of these parties had actually participated in the proceedings or sought to file any material.  The court record shows, however, that they were filed over consecutive days of 3, 4, 5 and 6 March 2008.

8. Importantly for my purposes today, one of those notices of discontinuance is by the husband himself.  That document shows that he was discontinuing any potential proceedings at all and that must include the notice of response that he filed on 27 October 2006.  He has discontinued that application by filing the notice on 5 March 2008.

9. To all intents and purposes therefore, he would no longer be a party to any proceedings and the wife, being the only applicant at that stage, would be entitled to proceed on an undefended basis, obviously still having to prove her case. 

10. Where the issue becomes disconcerting, however, is that on 5 March 2008, there purports to have been filed by the wife a notice of discontinuance.  I am advised by Ms O'Connor on behalf of the wife that she has viewed that document and taken instructions from the wife and the wife not only did not file it, she did not sign it.  That may be an issue that needs to be taken up with the appropriate authorities because I would have thought on the face of it, it amounts to a criminal offence.  Be that as it may, I therefore accept that the notice of discontinuance filed by the wife or in her name on 5 March 2008 was not in fact discontinuing the proceedings at all, and the filing of the document means nothing.

11. As I already said, the husband had been represented by a lawyer at that time and probably sensibly, the lawyer filed a notice of ceasing to act in May of this year.

12. There is a rather blunt and rude set of letters attached to an affidavit filed by the wife in the proceedings.  She says that those documents were sent by the husband.  It does not augur well for a settlement when one sees that sort of behaviour.  Notwithstanding that, the husband attended with the wife's solicitor and counsel on 4 July 2008 in a roundtable conference and consented to orders, the effect of which meant that two properties were to be sold.  I am told today that those properties have not yet settled.  One of them is to settle at the end of January and the other one has not yet been sold.  Registrar Riddiford made those orders on the basis of the signed consents of the husband and wife.  Those orders were made on 7 August 2008.

13. Thus, whilst it is with some trepidation, I am sure, that the wife does not want to prejudice the orders that she has in her possession, it is clear that they are orders of the court and that they can be enforced.  It seems to me otherwise that the parties are treading water and this case has now been sitting in the court's list for three years and nothing has happened with it.  In the circumstances and on the basis that this is the application of the wife, it ought to be heard. 

14. Ms O'Connor for the wife says there is every reason to believe that the husband  may participate in some discussions to resolve the matter but he has indicated to the wife that he will not come to court.  If he does attend in those discussions, there is a prospect that the matter might be resolved and orders can be made or at least the litigation can come to an end.  On the other hand, if he does not participate in the discussions or continues to adopt a view that only he will make decisions, then the wife has every right to pursue her justiciable entitlements.

15. The wife's application therefore today is to set the matter down but with a reasonable amount of time to allow not only the settlement of the sale of the properties in the orders to be completed but also to give the parties an opportunity to sort out the dispute between them.  This is a very long marriage and it seems on what I have heard and read today that there would be little argument about contributions.  Both parties seem to be in parlous income positions, although they have considerable real properties.

16. There does not seem to be any impediment to the matter proceeding on the basis that one of the properties is owned by the parties subject to a caveat by the company because the company is in fact the vehicle of the parties themselves. 

17. What is troubling is the fact that there are a number of parties joined against whom no orders have been sought, other than the removal of the caveats.  There is an alternative route the parties can take in relation to that, but for so long as the people are parties to the proceedings, they must have an opportunity to be heard.  For that reason, I propose to make orders that include them having an opportunity to be heard, notwithstanding the nonsensical documents that were filed in March by them or on their behalf, purporting no longer to be wishing to be participants in the proceedings.  As I said, at that stage they had not filed anything anyway.

18. What I propose to do is to set the matter down as the first case in the list before Bell J on 15 April 2008 when his Honour comes from Queensland to Melbourne for a fortnight.  This will be the first case in his Honour's list.  I propose to make orders that give the husband an opportunity to participate and if he does not, then it will be a matter for his Honour as to whether or not he deems this, and my reasons today, to be sufficient notice to the husband that if he wants to participate, then he has to meet the relevant deadlines.  The same will apply in respect of the other parties.  For that reason, I propose to make some orders.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 Decembr 2008