Lomas and Constantinou

[2013] FamCA 795

FAMILY COURT OF AUSTRALIA

LOMAS & CONSTANTINOU [2013] FamCA 795

FAMILY LAW – Failure to prosecute application; struck out.

Family Law Act 1975 (Cth)

APPLICANT: Ms Lomas

RESPONDENT: Mr Constantinou

FILE NUMBER: MLC 358 of 2010

DATE DELIVERED: 2 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 October 2013

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: No appearance

Orders

1. That all applications are struck out.

2. That the reasons this day be transcribed and be placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lomas & Constantinou 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: MLC 358 of 2010

Ms Lomas

Applicant

And

Mr Constantinou

Respondent

REASONS FOR JUDGMENT

1. On 16 May 2013, Ms Lomas filed an amended initiating application seeking orders that she be at liberty to travel internationally with the child B on the basis that notification was given to the child’s father, who is Ms Lomas’ husband Mr Constantinou.  These proceedings have a long history.  I made final orders by consent of the parties on 3 July 2012, so the application to which I have just referred postdates those orders.  The proceedings came before the Court after the final orders were made in July 2012 on 10 December 2012.  At that stage, both parties were represented by legal practitioners.

2. The Senior Registrar on that day made a variety of orders in relation to the child, whom I note is now seven years of age, which related predominantly to the child being enrolled in Little Athletics.  There were a number of other long-term applications for final orders that the Senior Registrar did not and could not deal with that day, and he placed them in the list of cases awaiting allocation to a judicial docket.  The case came back for hearing on 30 May 2013, again before the Senior Registrar.  On that occasion, despite being called twice, the husband did not appear, but the mother appeared in person.  This application had something to do with allowing the child to travel overseas.

3. The Senior Registrar made orders dispensing with the service upon the husband of the application, and then permitted the child to travel.  The case then came to my notice on the basis that it was climbing the list of cases in the judicial dockets, and on 4 September I listed the matter to today for the purposes of having it listed for final hearing.  The Court’s order on that day is endorsed with the fact that both parties were without legal representation, and their respective addresses were shown on the outside of the order.

4. Searching through the file, I have found an affidavit of service of documents on the husband, and that simply shows that the process server, who happens to live at the same address as the wife, was endeavouring to serve documents on the husband at the same address as the wife.  Needless to say, I have no idea what is happening with this case.  When the wife filed her application in May she described the husband’s address as C Street, Suburb D.  The husband has not filed any material since the proceedings that he was involved in in 2012.  I can only presume that whatever the parties were arguing about, they have now resolved all outstanding issues, because despite having been called today there has been no attendance.

5. As the wife is the applicant and has not attended, and even if the husband’s address is wrong it would certainly seem that the wife’s address is correct, and there is nothing on the file to indicate that the order made on 4 September has come back unclaimed.  On that basis, I will strike out all outstanding applications, and I will have the reasons this day transcribed and be placed on the court file.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 October 2013.

Associate: 

Date:  16 October 2013