Holcombe & Holcombe
[2021] FedCFamC1F 328
•7 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Holcombe & Holcombe [2021] FedCFamC1F 328
File number(s): MLC 7879 of 2017 Judgment of: JOHNS J Date of judgment: 7 December 2021 Catchwords: FAMILY LAW – PROPERTY – application to vary final orders – application struck out – failure to comply with trial directions – failure to appear for listed final hearing Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 7 December 2021 Place: Melbourne Solicitor for the Applicant: Ben Von Einem & Associates Pty Ltd The Respondent: No Appearance ORDERS
MLC 7879 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HOLCOMBE
Applicant
AND: MR HOLCOMBE
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
7 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Amended Initiating Application filed 25 March 2021 be struck out.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Holcombe & Holcombe is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This matter comes on today for final hearing in respect of the Application made by Ms Holcombe for orders to set aside final orders made by the Federal Circuit Court (as it then was) in December 2019.
The Application made by the wife came into my docket earlier this year, on 14 May 2021 when the matter was listed for trial directions. That day I made trial directions fixing the matter for final hearing. Initially, the matter was listed for final hearing on 23 November 2021. Subsequently, it was administratively adjourned to this day.
Those trial directions also required that the Applicant file by 23 June 2021 her trial documents which include an Amended Application and her affidavits of evidence-in-chief, as well as her financial statement. Further directions were also made for the Respondent to file and serve trial documents. Those orders also required the Applicant to file by 18 November 2021 a Case Outline document.
None of those orders have been complied with.
There has been no communication with the Court by the Applicant, either personally or through her lawyers in relation to her position since those trial directions were made.
The Respondent husband has not participated in the proceedings. He has not filed any material in response to the wife’s Application.
Neither the Applicant wife nor the Respondent husband has appeared at Court this day.
The wife is represented by a lawyer who did not appear initially today when the matter was called on. Inquiries were made of that firm of solicitors by my Associate and the matter was stood down to this afternoon to enable that lawyer to appear.
The matter has been listed and I have had the benefit of an appearance from Mr Epstein on behalf of the Applicant this afternoon.
He informs the Court that he does not hold current instructions for his client. Mr Epstein submits that the wife has been served with a notice of bankruptcy, that Mr Epstein’s firm is owed significant sums by her, and that the notice of bankruptcy relates to other law firms to which it is alleged the Applicant owes significant sums. That bankruptcy notice is listed for hearing on 22 December 2021.
The reality is that the Applicant has taken no active steps to prosecute her claim since the matter was listed before me for trial directions in May 2021. The matter was listed before me today for a final hearing, having been allocated a hearing of four days.
In circumstances where the Applicant has not complied with my trial directions, has not filed an Amended Application, any trial affidavit material or an updated financial statement and, further, where she has not appeared at Court to prosecute her claim this day, I am satisfied that the appropriate course is to strike out the Application before the Court.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 20 December 2021
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