Larvin and Larvin

Case [2009] FamCA 333

FAMILY COURT OF AUSTRALIA

LARVIN & LARVIN [2009] FamCA 333
FAMILY LAW – PRACTICE AND PROCEDURE – Leave to proceed undefended
Family Law Act 1975 (Cth)
Australian Securities Commission v MacLeod (1994) 130 ALR 717
Brown & Brown [2004] FamCA 1067
State of Queensland v JL Holdings 189 CLR 146
Tate v Tate (2000) FLC 93-047
APPLICANT: Mr Larvin
RESPONDENT: Ms Larvin
INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER: MLF 2557 of 2005
DATE DELIVERED: 4 May 2009
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN
HEARING DATE: 4 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR GEDDES QC WITH MS LANE
SOLICITOR FOR THE APPLICANT: FORTE FAMILY LAWYERS
COUNSEL FOR THE RESPONDENT: NO APPEARANCE
SOLICITOR FOR THE RESPONDENT: IN PERSON
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MS SMITH, VICTORIA LEGAL AID

Orders

  1. That the husband’s amended application for final orders filed 18 December 2008 remain listed as the second case in the list on 25 May 2009 at 10.00am but subject to the notation to these orders below.

  2. That the husband have leave to proceed with his amended application seeking final orders on an undefended basis.

  3. That the wife’s response filed 12 December 2005 as amended by the amended response filed 27 June 2006 and further amended on 19 July 2007 be struck out.

  4. That the wife be at liberty to cross-examine the husband and his witnesses at the final hearing on 25 May 2009.

  5. That the wife be notified by the solicitors for the husband of the making of these orders by forwarding a copy of this order to the wife by prepaid post to her address for service at M.

  6. That the Independent Children’s Lawyer forward to the wife a letter in similar terms.

  7. That my reasons for the orders be transcribed and be made available to the parties and posted by my Associate to the wife at M.

  8. That the husband’s costs of this day be reserved to the final hearing on 25 May 2009.

IT IS CERTIFIED:

  1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

  2. That the letter dated 24 April 2009 from Forte Family Lawyers to the wife be marked as Exhibit A and remain on the court file.

AND THE COURT NOTES

A.That although the case is listed as the second case in the Defended List commencing 25 May 2009, the court is anticipating that the matter is now not proceeding on a defended basis and in those circumstances, it will proceed ahead of the first case in the list subject to time constraints.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2557  of 2005

MR LARVIN

Applicant

And

MS LARVIN

Respondent

REASONS FOR JUDGMENT

  1. This is an application by the husband to proceed with his application for final…

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Details
AGLC
Larvin and Larvin [2009] FamCA 333
Case
[2009] FamCA 333
Decision Date

CaseChat Overview and Summary

In the matter of *Larvin and Larvin*, heard before Justice Cronin, the husband sought final orders in family law proceedings. The wife's response, as amended, was struck out, leading to the husband being granted leave to proceed with his application on an undefended basis. The wife retained liberty to cross-examine the husband and his witnesses at the final hearing.

The central legal issue before the court was whether to grant the husband leave to proceed with his application for final orders on an undefended basis, following the striking out of the wife's response. This also involved determining the appropriate orders to manage the progression of the proceedings, including the wife's ability to participate in the final hearing.

Justice Cronin reasoned that the striking out of the wife's pleadings necessitated proceeding on an undefended basis. The court's orders reflected this determination, allowing the husband's application to be heard without the wife's substantive response. However, to ensure fairness and address potential concerns regarding the wife's understanding and participation, the court specifically preserved the wife's right to cross-examine the husband and his witnesses. The court also made provisions for the wife to be formally notified of the orders and for the reasons for the decision to be made available. The matter was listed for final hearing, with the court noting that it anticipated the proceedings would now be treated as undefended and might be heard ahead of other listed matters.

Orders

Orders of the court

1.

That the husband’s amended application for final orders filed 18 December 2008 remain listed as the second case in the list on 25 May 2009 at 10.00am but subject to the notation to these orders below.

2.

That the husband have leave to proceed with his amended application seeking final orders on an undefended basis.

3.

That the wife’s response filed 12 December 2005 as amended by the amended response filed 27 June 2006 and further amended on 19 July 2007 be struck out.

4.

That the wife be at liberty to cross-examine the husband and his witnesses at the final hearing on 25 May 2009.

5.

That the wife be notified by the solicitors for the husband of the making of these orders by forwarding a copy of this order to the wife by prepaid post to her address for service at M.

6.

That the Independent Children’s Lawyer forward to the wife a letter in similar terms.

7.

That my reasons for the orders be transcribed and be made available to the parties and posted by my Associate to the wife at M.

8.

That the husband’s costs of this day be reserved to the final hearing on 25 May 2009.

IT IS CERTIFIED:

9.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

10.

That the letter dated 24 April 2009 from Forte Family Lawyers to the wife be marked as Exhibit A and remain on the court file.

AND THE COURT NOTES

A. That although the case is listed as the second case in the Defended List commencing 25 May 2009, the court is anticipating that the matter is now not proceeding on a defended basis and in those circumstances, it will proceed ahead of the first case in the list subject to time constraints.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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