Liddell and Liddell

[2009] FamCA 387

FAMILY COURT OF AUSTRALIA

LIDDELL & LIDDELL [2009] FamCA 387

FAMILY LAW – PRACTICE AND PROCEDURE – Application and Response struck out – No appearance by parties

Family Law Act 1975 (Cth)

APPLICANT: Mr Liddell

RESPONDENT: Ms Liddell

FILE NUMBER: MLF 1290 of 2006

DATE DELIVERED: 14 MAY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 14 MAY 2009

REPRESENTATION

THE APPLICANT: NO APPEARANCE

THE RESPONDENT: NO APPEARANCE

Orders

1. That the application of the wife filed 13 April 2006 and the response thereto by the husband filed 26 May 2006 are struck out.

2. That all proceedings are removed from the list of cases awaiting a hearing.

3. That the respective applications of the parties only be relisted upon the filing of an application in a case supported by an affidavit indicating:

   (a)       Why the parties have not complied with the orders made to date;

   (b)       Why they did not attend the hearing on 14 May 2009; and

   (c)That they are in a position to immediately proceed to a judicial determination with evidence that all valuations are completed and affidavits of evidence in chief are ready to be filed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1290  of 2006

MR LIDDELL

Applicant

And

MS LIDDELL

Respondent

REASONS FOR JUDGMENT

1. In this matter, I propose to strike out all extant applications and remove all proceedings from the list of cases awaiting a hearing.  I further propose to make orders providing for the matters to be relisted only upon an affidavit being filed justifying why orders have not been complied with.

2. On 13 April 2006, the wife filed an application for final orders.  That was filed by solicitors acting on her behalf seeking parenting orders in relation to a child who was born in October 1989 and contrary to the rules of court, the property held by the parties be “divided in accordance with the principles of just and fairness in all the circumstances”.

3. On 26 May 2006, the husband filed a response to the application of the wife.  He represented himself.  He sought orders that he have contact with the child taking into account her wishes and otherwise that there be injunctions in relation to the disposal of the home and “full and frank disclosure of all property legally and beneficially owned” by the wife.  He agreed that there should be a property order made in terms of those sought by the wife.  As she had not sought specific orders, he obviously felt he did not need to do so either.

4. A case assessment conference was conducted on 6 June 2006 and the matter did not resolve.

5. Subsequent to the case assessment conference there have been appearances in this Court on 13 September 2006, 21 September 2006, 9 October 2006.  Those hearings were generally adjournments to enable the parties according to the letter from the solicitor for the wife to “enable finalisation of the agreement between the parties”.

6. On 16 October 2006, the husband filed a Notice of Discontinuance of the application in a case that he had filed pursuing orders relating to the removal of caveats.  On the face of the record therefore, the property dispute was still alive.

7. On 15 June 2007, the parties were called upon to attend for a trial notice listing at which point, orders were made for the filing of amended applications, affidavits and the like.  The affidavit material was to be filed by 17 October 2007.  Nothing was filed.

8. On 31 October 2007, the parties were back before the Court.  The note of the registrar on the pre-trial conference order shows that the parties were in the process of determining some dispute with Vicroads and that was unresolved.  Accordingly, the registrar adjourned the matter to a date to be fixed not before 30 April 2008.

9. On 14 May 2008, no party appeared before the same registrar and he adjourned the matter to 4 August 2008. 

10. On 4 August 2008, the parties attended before Registrar Mestrovic who in turn adjourned the matter for further case management.  The registrar attached to her order a signed agreement by the parties in relation to the sale of various properties.

11. On 16 February 2009, the parties attended again before Registrar Mestrovic and as nothing had advanced and the earlier orders had still not been complied with, the registrar transferred the case to me.

12. There are substantial properties owned by the parties in this case.  Some of them are owned by the husband and others by the wife. 

13. The matter came before me on 14 April 2009.  Both parties appeared unrepresented.  Each told me their difficulties about trying to resolve the matter.  The husband’s view was that there was an agreement but the wife was not keeping it.

14. I indicated that the Court could not continue to allow the parties to use up valuable court time in the way they were. Accordingly I adjourned the matter for mention before me at 9.00am on 14 May 2009. I directed the wife to file and serve an amended application seeking precise orders by 5 May 2009 together with a financial statement complying with Chapter 13 of the Family Law Rules 2004. I ordered that the husband do likewise by 11 May 2009. The parties indicated that they may have some discussions about settlement and I made provision for them to transmit consent orders by 13 May if they were able to do so.

15. Late in the afternoon of 13 May, the Court received a fax transmission and on the coversheet of an order made 14 April 2009 were written the following words:

    I [the husband] Here (sic) by give notice to the FamilyLaw Court to discontinue proceedings at this stage as mutual agreement with my wife. (emphasis mine)

16. I find it disconcerting that only one party contacts the Court whilst asserting there is some mutual arrangement.  Equally troublesome is the use of the words “at this stage”.  That dismissive approach is inappropriate.

17. The matter was called at 9.00am on 14 May 2009 and there was no appearance of the parties. 

18. These parties have made little attempt to resolve the litigation problems.  They may very well be endeavouring to sort out their financial dispute but they are using the court process inappropriately.  The case is delaying other matters in the list whilst resources are devoted to it.  That is inappropriate in the current climate.

19. Accordingly, I propose to strike out all extant applications.  The parties or either of them are also only permitted to relist the applications on the basis that they can show good cause why they have not attended to any of the orders made previously and in particular by orders of 14 April 2009.  Importantly, the material if at all will have to show that they are ready for a judicial determination.  I am not going to allow the matter to be case managed any further.  They can organise that amongst themselves or through their own legal advisors.  Upon the certification by the parties and/or their lawyers that the matter is completely ready for trial, the registrar may relist the matter.

20. I make orders accordingly.

I certify that the preceding Twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 May 2009