Coleman and Coleman

[2019] FCCA 3441

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLEMAN & COLEMAN [2019] FCCA 3441

Catchwords:
FAMILY LAW – Application to set aside property orders made in absence of respondent – consideration of matters relevant to an application under r.16.05 of the Federal Circuit Court Rules – Application dismissed – no order for costs made.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001, r.16.05

Cases cited:

Tate & Tate [2000] FamCA 1040

Xie & Zhao (No.2) [2009] FMCAfam 1303

Applicant: MS COLEMAN

Respondent: MR COLEMAN

File Number: DGC 2628 of 2018

Judgment of: Judge Burchardt

Hearing date: 30 October 2019

Date of Last Submission: 30 October 2019

Delivered at: Dandenong

Delivered on: 30 October 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Taylor

Solicitors for the Respondent: Taylor & Barnes Solicitors

ORDERS

1. The application in a case filed on 27 August 2019 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2628 of 2018

MS COLEMAN

Applicant

And

MR COLEMAN

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The matter before the Court can only be properly understood in the context of its history as an application generally.  On 2 August 2018, the applicant husband filed an application in which he sought property and parenting orders.  He made allegations of significant drug use on the part of the mother and admitted to past use on his part.  Relevantly, for these purposes, he deposed to the fact that there was a relationship from about 2004 to 2017 with two children. 

2. There was a matrimonial home with a net equity of approximately $100,000.  There had been a sale of a business in 2017 which had generated a total sale of $96,000 plus $1000 per month for three years with a balance of $24,000 due to be paid in February 2020, and there was also the building in which the business had previously been conducted which was for sale.  Furthermore, another property, as I understand it, was asserted to have been sold for $80,000 and the funds largely applied to debts. 

3. The husband also deposed to an inheritance of $96,000 that he had received in about 2015 and he deposed that his superannuation had been almost entirely garnished prior to the commencement of the relationship.  The matter was before Judge Harland on 20 August 2018 and the wife was present on that day and self-represented.  She had, indeed, been served.  A s11F series of interviews was ordered for 22 August 2018, but the wife did not attend. 

4. Accordingly and unsurprisingly, Judge Harland reserved the husband’s costs of the day and ordered the mother to attend Court on an adjourned date of 17 September 2018.  She did attend and various procedural orders were made.  On 26 October 2018, the matter was before Registrar Kaur for a conciliation conference.  Orders were made for the relevant…