Cavallio & Cavallio and Ors

[2009] FamCA 159

FAMILY COURT OF AUSTRALIA

CAVALLIO & CAVALLIO AND ORS [2009] FamCA 159

FAMILY LAW – PRACTICE AND PROCEDURE – Discontinuance

Family Law Act 1975 (Cth)

APPLICANT: Ms Cavallio

RESPONDENT: Mr 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: 11 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 11 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: NO APPEARANCE

COUNSEL FOR THE RESPONDENTS: NO APPEARANCE

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 CAVALLIO

Applicant

And

MR CAVALLIO

Respondent

And

MS A CAVALLIO

Second Respondent

And

MR M CAVALLIO

Third Respondent

And

MR V CAVALLIO

Fourth Respondent

And

MR C CAVALLIO

Fifth Respondent

And

L & F PTY LTD

Sixth Respondent

REASONS FOR JUDGMENT

1. Today is a mention day of this matter which I had listed to be heard before Bell J in April 2009.

2. When I listed the case on 16 December 2008, I ordered specific documents be filed by the wife setting out with precision the orders she sought.

3. On that day, the wife appeared by her solicitor but there was no appearance of the husband.

4. Today, there has been no appearance by any person.

5. Yesterday, the solicitor on the record for the wife filed a notice of ceasing to act. That notice refers to the fact that the hearing was listed today.

6. To add to the intrigue, someone filed 7 notices of discontinuance on 3 February 2009. One of those notices is filed on behalf of the wife. It is odd that she would personally do that when at that stage, she had legal practitioners acting for her.

7. None of that might appear on its fact to be unusual except for the history of the matter. On 16 December 2008 in the hearing mentioned above, I made the following observation:

   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.

   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.

   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. 

   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.

8. Whilst one might be forgiven for thinking this was a repeat of what happened before, this time, I have the formal cessation of the solicitor for the wife.

9. In the circumstances, there is no proceeding any longer before the Court.

10. All proceedings are therefore removed from the list of cases awaiting a hearing and the hearing before Bell J is vacated.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 March 2009