DYLAN & GOSS

[2015] FamCA 737

FAMILY COURT OF AUSTRALIA

DYLAN & GOSS [2015] FamCA 737

FAMILY LAW – DE FACTO RELATIONSHIP – Where the threshold issue of whether a de facto relationship exists has not been determined by the Court – Where the applicant has been notified that in the event of no appearance by or on her behalf her application may be dismissed – Where the applicant has failed to appear – Application dismissed.

Family Law Rules 2004 (Cth) r 12.13

APPLICANT: Ms Dylan

RESPONDENT: Mr Goss

FILE NUMBER: WOC 322 of 2014

DATE DELIVERED: 19 August 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 August 2015

REPRESENTATION

SOLICITOR FOR THE RESPONDENT: Sachs Gerace Lawyers

Orders

1. The Initiating Application filed by the Applicant on 8 April 2014 be dismissed and the proceedings be removed from the list of active pending cases in the Registry.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dylan & Goss has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: WOC 322 of 2014

Ms Dylan

Applicant

And

Mr Goss

Respondent

REASONS FOR JUDGMENT

1. The present proceedings were commenced by the applicant de facto wife by application filed on 8 April 2014. 

2. In that application, the applicant sought various orders in relation to property adjustment as between herself and her purported de facto partner. There has been issue and remains an outstanding issue between the parties as to whether there was in existence a de facto relationship sufficient to ground jurisdiction. 

3. In his amended response filed on 27 August 2014, the respondent “de facto” husband sought an order that the applicant’s application be dismissed. 

4. The proceedings have had somewhat of a convoluted history, but more recently the matter was before the Registrar on 24 March 2015. On that date, both parties appeared in person, and a series of directions were made by the Registrar in relation to an endeavour to further progress the matter. 

5. Notwithstanding the absence of any finding as to a de facto relationship such as to found jurisdiction, it appears the matter has continued for some time without addressing that threshold question. 

6. Previous directions have been made in relation to obtaining valuations, filing of balance sheets, and filing of financial questionnaires. As at 24 March 2015 neither party had attended to complying with those directions. 

7. On 5 May 2015, a Notice of Address for Service was filed by a firm of solicitors on behalf of the applicant “de facto” wife, and shortly thereafter, on 15 May 2015, that firm filed a Notice of Ceasing to Act on behalf of the applicant. 

8. On 19 May 2015, the matter was listed again before a Registrar. On that date, there was no appearance by or on behalf of the applicant “de facto” wife, and the respondent on that date was represented by his solicitor. The respondent’s costs on that date were reserved, and the matter was adjourned to 1 July 2015.  Otherwise time for compliance with previous directions by both parties was extended, and it was intended that in the absence of any appearance by or on behalf of the applicant the matter would be listed for undefended hearing or the applicant’s application be dismissed. 

9. On 1 July 2015 before the Registrar the respondent was represented by his solicitor, and again there was no appearance by or on behalf of the applicant “de facto” wife. The Registrar ordered as follows: 

   a)That proceedings be listed before the Court on 19 August 2015 for judicial case management, and, if applicable, to be set down for undefended hearing or the application be dismissed; 

   b)That the applicant “de facto” wife pay the respondent “de facto” husband’s costs in the sum of $2,400 by 19 August 2015; 

   c)That the solicitors for the respondent “de facto” husband notify the applicant “de facto” wife forthwith in writing at her last known address of the directions made and the possible consequences of her failure to appear. 

10. Before the Court today and marked as Exhibit A  are the  Affidavits of Service as to letters forwarded to the applicant on both 23 June 2015 and 7 July 2015 in compliance with the Registrar’s directions.  Before the Court and marked as Exhibit B are copies of the correspondence forwarded undercover of those letters. 

11. The applicant was put on notice firstly as to the costs order made by the Registrar on 1 July 2015, and that proceedings were listed today at 9.30 am and in the absence of any appearance by the applicant, the Court may dismiss the proceedings or proceed to hear them on an undefended basis. 

12. The matter was listed at 9.30 am today, and the applicant was again called just before 10.00 am, and there was no appearance by or on behalf of the applicant. 

13. The Family Law Rules provide, pursuant to rule 12.13, that if an applicant does not attend a case assessment conference or procedural hearing, the Court may (a) dismiss the applicant or (b) make an order for the future conduct of the case. 

14. The solicitor for the respondent seeks relief in terms of rule 12.13, and in the circumstances referred to above it is appropriate that such relief be granted. 

15. Accordingly, the Court orders that the application filed by the applicant on 8 April 2014 be dismissed and that otherwise the proceedings be removed from the pending cases list. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 August 2015.

Associate

Date:  19 August 2015