Hillier and Hillier (No 3)

[2010] FamCA 1241

FAMILY COURT OF AUSTRALIA

HILLIER & HILLIER (NO. 3) [2010] FamCA 1241

FAMILY LAW – PRACTICE AND PROCEDURE – Proceedings struck out

Family Law Act 1975 (Cth)

APPLICANT: Mr Hillier

RESPONDENT: Ms Hillier

FILE NUMBER: MLC 4502 of 2009

DATE DELIVERED: 17 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 December 2010

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: Zolis Lawyers

THE RESPONDENT: No appearance

Orders

1. That all extant applications are struck out with a right of all parties to have those applications reinstated upon satisfying the Registrar that the matter is ready to proceed.

2. That reasons this day be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4502  of 2009

MR HILLIER

Applicant

And

MS HILLIER

Respondent

REASONS FOR JUDGMENT

1. This is an application which was adjourned to today from some months ago when I determined, on a final basis, the various parenting orders leaving the financial issues between the parties incomplete.  The matter was specifically adjourned to today so that the financial matters could be resolved.

2. One of the problems then, and still appears to be the case now, is that the husband is in the United States of America and somewhat reticent about returning to Australia on the basis that, upon his arrival, he may be arrested.  I think that warrant is, in fact, now stale so there is no reason for the husband not to be here.

3. The problems are now compounded because on 18 November a sequestration order was made against the husband and his affairs are in the hands of the trustee in bankruptcy.  I am aware of that by virtue of a certificate that has been sent to the court by the Insolvency and Trustee Service of Australia, signed by the official receiver.

4. That may solve one side of the problem because from my recollection and understanding of the case there is little property.  What property the husband might have an interest in now belongs to the trustee in bankruptcy.  My recollection also is that the wife is likewise bankrupt.  There would seem to be a limited amount of involvement in any proceedings by her as well.

5. I have a letter from the solicitors, or former solicitors, for the husband indicating that the wife contacted them yesterday to advise that she has now lost her job, has to relocate her family from the rented accommodation and has particular school commitments for one of the children. 

6. There are also other problems in this case in that there are proceedings before the Supreme Court of Victoria listed for early February 2011.  The solicitors for the husband have suggested that perhaps the solution might be to adjourn the matter for two or three months but I think that is overly optimistic.  I do not know what the wife’s position is save for the reference in the letter from the husband’s solicitor and, it seems to me, that this case should simply be taken out of the list with a right of reinstatement on the basis that the parties can convince me, and/or the trustee as well, that it is in a position where it needs some judicial intervention.

7. So in the matter of Hillier all extant applications are struck out with a right of all parties to have those applications reinstated upon satisfying the registrar that the matter is ready to proceed.

8. I further order that the reasons be transcribed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 December 2010.

Associate: 

Date:  19 January 2011