Hayden and Hayden

[2008] FamCA 474

FAMILY COURT OF AUSTRALIA

HAYDEN & HAYDEN [2008] FamCA 474

FAMILY LAW – PROCEDURAL – Abridgement

APPLICANT: Mr Hayden

RESPONDENT: Mrs Hayden

FILE NUMBER: MLC 4701 of 2008

DATE DELIVERED: 3 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 3 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Panayi

SOLICITOR FOR THE APPLICANT: Hallett West

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all times shall be abridged so that the husband’s Application in a Case filed 23 May 2008 shall be listed before me today and adjourned to the original hearing date of 20 June 2008.

2. That reasons given by me this day shall be transcribed and made available to each party.

3. That all questions of costs shall be reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 4701 of 2008

MR HAYDEN

Applicant

And

MRS HAYDEN

Respondent

REASONS FOR JUDGMENT

1. This matter was before me yesterday in the duty list.  There were no appearances.  At 10.16am the court received a facsimile from the solicitor for the applicant saying:

   In relation to the above matter, as the sequestration has already occurred there is no purpose to today's proceeding. Hallet West therefore will not be appearing today, June 2, 2008.  If you have any queries please do not hesitate to contact us.

   On the basis of that communication, I struck out the application filed on 30 May 2008. 

2. The matter has been brought back on before me this morning because despite that communication to the court, and as mystifying as it is, during the course of yesterday afternoon the applicant solicitor sought to bring that application on. 

3. In any event there is still some process on foot, in the sense that the applicant husband's Application, filed 23 May is alive. 

4. Mushin J made final property orders in this case on 15 March 2007.  The husband was to pay various sums to the wife and to their children's educational account.  On the husband's version, he made all the payments except for a sum of $47,000-odd which the manager of his superannuation fund mistakenly paid to the children's education fund, rather than to the wife.  On his account, which is the only account I have at the moment, the wife somewhat inexplicably refused to sign a simple document in order to correct the error and to obtain the funds to which she was entitled and that she then sought to enforce.

5. The husband says that on 22 April 2008 he received Notice of a Sequestration order, obtained by the wife in the Magistrates Court.  He says that thereafter he paid the sum outstanding.  He still needs to get the $47,000 returned to him that is sitting in the children's educational account, but he paid the outstanding sum in full, and on his account, another two sums of $6500 each have since been sequestered from him, so that he urgently needs money on which to live. 

6. The wife is not here today.  I have an affidavit of service, but it shows that a message was left with her solicitor very late yesterday as to the matter proceeding today.  It is a case where I would need to be satisfied that she had appropriate notice to attend court today.  The case has some curious features.  I am not satisfied that within the time-frame available, I can be confident that she has known about today and has exercised a decision not to participate.

7. I have on affidavit the husband's solicitor's account as to the attempts that have been made to get this matter back on before the Magistrate who made the Sequestration Order so that a stay of the order could be made, and permission granted to appeal to this court.  I have been told by counsel for the applicant husband that I have the power to stay or vary the Magistrates Court order, but it is clear that the permission to appeal, an order that is required from the Magistrate, is a forerunner to the appeal going ahead in this court.

8. The case is due before the Magistrate in the Hamilton Magistrates’ Court tomorrow.  In the circumstances, particularly with the lack of clarity around the service on the wife, it would be inappropriate and potentially unjust for me to deal with just a part of the issue today. 

9. The wife needs urgent notice that the case is going ahead in the Magistrates Court, and the Magistrate can then look at the stay of the order, and the permission to appeal.  Most importantly, the husband can produce proper material to the Magistrate in relation to the payments he says he has made.  I have his assertions on oath about it, but I do not have any primary documentation.

10. The application of 23 May is returnable in this court on 20 June 2008.  I need to abridge times to have it listed before me, to list it back to 20 June.  Otherwise there is no process before me today. 

11. All questions of costs shall be reserved. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  3 June 2008