KENDALL & DIAZ

[2014] FamCA 326

FAMILY COURT OF AUSTRALIA

KENDALL & DIAZ [2014] FamCA 326

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Application to dismiss substantive proceedings because, although the affidavit material was filed in time, it was not served properly – No prejudice – Application refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kendall

RESPONDENT: Mr Diaz

FILE NUMBER: DGC 2493 of 2014

DATE DELIVERED: 2 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McGregor

SOLICITOR FOR THE APPLICANT: Fiona R McGregor

THE RESPONDENT: No Appearance

Orders

1. That the application in a case filed 30 April 2014 is dismissed.

2. That the costs of the mother this day are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kendall & Diaz 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 MELBOURNE

FILE NUMBER: DGC 2493 of 2014

Ms Kendall

Applicant

And

Mr Diaz

Respondent

REASONS FOR JUDGMENT

1. On 30 April 2014, Ms Kendall (“the applicant”) filed an application in a case seeking an order that the application by Mr Diaz (“the respondent”) be dismissed.

2. In the substantive proceedings in this Court, the respondent was the applicant. 

3. On 5 March 2014 at a hearing in which the respondent attended, the case was set down for trial to commence in the defended list in June 2014.

4. A specific order was made by the Court that the applicant file and serve her amended application with evidence in chief by 2 April and the respondent was to respond with an amended response and affidavits of evidence in chief by 30 April 2014.

5. It was the non-compliance with those orders that brought the matter back before the Court. 

6. At the hearing before me on 2 May 2014, the respondent did not appear.  Ms McGregor appeared on behalf of the applicant mother seeking to have the parenting application of the respondent dismissed.

7. I indicated at the time that I would not grant the application because although the respondent may have been late with the service of the documents he intended to rely upon, he had filed them within the time in the Registry.  It seems that the applicant for the dismissal of the proceedings has not been prejudiced by the respondent’s lethargy in service.

8. For reasons that I canvassed at the time, my greater concern was that there was little (if any) material upon which the respondent father could proceed but he had no doubt been advised of what obligations he had to present material to the Court and how the Court would determine the issue.

9. This is not a case in which the Court is simply ignoring its orders but rather, no real prejudice has been caused and the parties need a resolution.  The respondent will need to be very careful about how he proceeds with the case from this moment onwards.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 May 2014.

Associate: 

Date:  2 May 2014