Pimbletts and Carlyle

[2009] FamCA 1230

FAMILY COURT OF AUSTRALIA

PIMBLETTS & CARLYLE [2009] FamCA 1230

FAMILY LAW – PRACTICE AND PROCEDURE – application by the husband seeking the dismissal of the proceedings – where the proceedings in relation to property settlement commenced in 1983 – where there are ongoing proceedings in Italy – where there was no appearance for or on behalf of the wife – where the wife has failed to comply with orders to prepare the matter for final hearing – just and equitable to dismiss all proceedings

Family Law Act 1975 (Cth) s 75(2)

APPLICANT: Mr Pimbletts

RESPONDENT: Ms Carlyle

FILE NUMBER: ADF 4599 of 1982

DATE DELIVERED: 4 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr A. Di Rosa

SOLICITOR FOR THE RESPONDENT: Cha Di Rosa Lawyers

Orders

1. All outstanding proceedings between the parties in the Family Court of Australia are dismissed and the husband is released from any undertakings given to this Court.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4599 of 1982

MR PIMBLETTS

Applicant

And

MS CARLYLE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In these proceedings I am being asked this morning to make an order dismissing the current proceedings before the Court and releasing the husband from any undertaking he has given the Court.  To have the matter considered it is necessary to understand the context.  The parties were parties to a divorce granted in late 1982 and proceedings in relation to property settlement which commenced in October 1983.

2. There have been documents filed in this Court over the years since with the matter resuming actively only recently.  The Court has been attempting recently to manage the matter so that it could be brought to a conclusion.  Specifically the matter has been in the case management docket now for a considerable period of time.

3. The wife (and I describe her as the wife even though it is clear she is the ex-wife) resides in Italy.  The husband resides in South Australia. 

4. The proceedings concerning the property settlement proceedings here in Australia have been adjourned on numerous occasions for many reasons.  A significant reason in the past has been the failure of the wife to inform the Court about the progress of the Italian proceedings and the failure of the wife to comply with other orders of the Court.

5. Various orders have been made.  In particular, the Court has been attempting to prepare the matter for final hearing, depending upon the outcome of the Italian proceedings. 

6. On 3 August 2009 I made certain orders and adjourned the matter to 11 November 2009.  On 11 November 2009 the matter came on before me.  Counsel for the husband appeared, the husband was present.  There was no appearance for or on behalf of the wife.  At that stage the solicitors previously acting for the wife had filed a Notice of Ceasing to Act.

7. On that occasion, 11 November, I made specific orders that the husband’s solicitors write to the wife at her last known residential address and to her Italian solicitors informing them that if by 4 December 2009 the wife has not filed and served an Australian Address for Service and an affidavit in compliance with the orders of 3 August 2009, then the Court is likely to determine the proceedings in Australia on a final basis in her absence dismissing her proceedings and dealing with the final orders requested by the husband.

8. I further requested that the husband’s solicitors forward a copy of the sealed order to the wife and her Italian solicitors. 

9. I adjourned the matter to today.  Today the matter comes on before me and, again, Mr Di Rosa represents the husband who is also present.  There is no appearance for or on behalf of the wife.  Mr Di Rosa’s affidavit annexes correspondence to the wife and her Italian solicitors informing them of the orders I made on 4 December and enclosing a copy of the order.

10. That letter to the wife is dated 16 November 2009 and the letter to the solicitors is also dated 16 November 2009.  There are documents which indicate the transmission of the documents to the appropriate addresses. 

11. The affidavit of the solicitor for the husband indicates that the correspondence he has received in reply disputes the allegations of the husband made in relation to the ownership or interest (equitable or otherwise) in the property in South Australia and purports to indicate that the wife is seeking, or will be seeking, a division of assets in Australia in the same manner as that sought in Italy namely, that she will be seeking that they be divided “in common”.  I understand that to be a half share each.

12. However, the wife has not filed a Notice of Address for Service, nor has there been an affidavit filed in these proceedings.  I am told from the bar table this morning that the Italian proceedings have been adjourned until April 2010 and that there is no clear indication of when there will be a resolution of the proceedings in relation to matrimonial property in Italy.

13. I am not being asked to make an order by way of final property settlement in these proceedings. I am being asked to dismiss all proceedings. Whilst that would appear, in a way, to have a similar effect, I accept that it is technically different. Having considered all the material before the Court, which has been filed over the years I am also satisfied that the order is just and equitable. It will bring to an end proceedings in this country between the parties in relation to real estate property acquired by the parties many years ago, but transferred into the sole name of the husband many years ago, and which has been his residence for a considerable number of years. I also take into account the section 75(2) factors.

14. However, my main basis for dismissing these proceedings is that the wife has failed to comply with orders to prepare the matter for a final hearing.  Due to her failure to comply with those orders, I am satisfied that it is just and equitable to dismiss all of the proceedings.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  14 December 2009