Czarkozvy and Czarkozvy

[2008] FamCA 1138

FAMILY COURT OF AUSTRALIA

CZARKOZVY & CZARKOZVY [2008] FamCA 1138

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Czarkozvy

RESPONDENT: Mr Czarkozvy

FILE NUMBER: MLC 6745 of 2008

DATE DELIVERED: 13 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

Orders

1. That the wife have leave to proceed with her application in a case filed 5 September 2008 notwithstanding the absence of the husband and service upon him of the affidavit filed 5 September 2008.

2. That the wife’s application for property settlement filed 12 November 2003 and the husband’s response filed 16 January 2004 be reinstated.

3. That the reasons for judgment this day be transcribed and be placed upon the court file.

4. That by Friday 24 October 2008, the husband be served by the wife by post to his address c/- T Company Headquarters, …, Melbourne, with the following:

   (a)a copy of these orders;

   (b)a copy of the affidavit of the wife filed 5 September 2008; and

   (c)a copy of the reasons for judgment referred to in paragraph 3 of these orders.

5. That all extant applications be transferred to the Federal Magistrates Court of Australia for listing in the duty list of that Court as soon as practicable to facilitate the final determination of the outstanding property proceedings between the parties.

6. That by 4.00pm on 31 October 2008, to facilitate the Federal Magistrates Court of Australia listing of the said application, each party file and serve an affidavit of evidence in chief as to the property matter and a financial statement.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6745 of 2008

MS CZARKOZVY

Applicant

And

MR CZARKOZVY

Respondent

REASONS FOR JUDGMENT

1. This is an application in the duty list by the wife.  It was filed on 5 September 2008 along with an affidavit.  As a result of a letter sent by the registry on 6 October a copy of the application was served on the husband on 9 October at 12.30 pm at the T Company head office in Melbourne.  The server seemed satisfied with the identification of the recipient of the documents because she sighted an identification card.  It seems from what I have heard this morning that the husband lives in regional Victoria and has no postal address there but all of the mail that is relevant goes to the T Company head office in Melbourne.

2. These parties had commenced property proceedings in 2003.  The track record of various orders shows that by July 2005 the proceedings were adjourned to enable the parties to "negotiate further".  When the matter came back for hearing on 5 December 2005 there was no appearance of any person and the registrar dismissed all extant applications but with a right of reinstatement.  The only condition for reinstatement was that there be liberty to apply by way of an application in the case supported by an affidavit.  It is that process that the wife has now issued.

3. For reasons which do not really matter, the wife did not serve a copy of the affidavit that she had filed.  I propose in the orders I am about to make to direct that that be served for no other reason than the fact that if the husband ever searched the file he would find a copy of it and would have access to it.  The fact that the registrar in 2005 made an order that one of the conditions of reinstatement was the filing of the affidavit has been fulfilled but clearly it has not been served as it should have been. 

4. Having regard to what is in that affidavit, however, I am not troubled about the fact that the husband has not received a copy of it.  I have had the husband called at 10 past 11 this morning and there was no answer to the call.  That may be because the husband thinks that the application was going nowhere, having regard to the way it was filed, or an alternative explanation could be as the wife says, that he never bothers to read his mail.  If that is the case then he will quickly learn that he has to get on with things and sort this matter out.

5. I have been told by the wife that the only asset between the parties is the former matrimonial home, although I do note that the financial statements show that there is superannuation and those issues need to be addressed.  The wife was represented by lawyers in 2005, ultimately filing a notice of address for service for herself in July of that year.  She now says that she is going to go back to get some legal advice.

6. Because of the delays in this court I could not possibly expect a hearing of this matter for quite some months and having regard to the nature of the application if what the wife says is right, it ought not to be very difficult to sort out.  However, that depends a little bit on the cooperation that we receive from the husband. 

7. I propose to transfer the proceedings to the Federal Magistrates Court of Australia on the basis that that court is much more appropriately equipped to deal with matters on a streamlined basis rather than go through the process that I would be obliged to put the parties through if it remained in this court.

8. I propose also that the orders that I am about to make together with my reasons for judgment be posted the husband rather than have the wife go to the trouble of having to have him served personally.  It would seem that serving him personally has not had much of an impact upon the husband so perhaps having the letters drawn to his attention might bring about some action.

9. It seems also to me that the parties' evidence is not before the court and as is the custom of the Federal Magistrates Court of Australia when an application is filed the parties also file their affidavit material.  I propose to make orders to facilitate the smooth transition of the matter from a directions hearing in the Federal Magistrates Court to a final hearing as best I can.

10. I am going to make a very tight time frame for these orders.  So that is the reason why I am giving some reasons for judgment this day.  I am hopeful that the Federal Magistrates Court can list the matter quickly and make various orders for valuation if that is necessary.  Accordingly I will make orders in this case.

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

Associate:  Elizabeth Hore

Date:  24 October 2008