ROET & ROET

[2010] FamCA 168

FAMILY COURT OF AUSTRALIA

ROET & ROET [2010] FamCA 168

FAMILY LAW – PROCEDURE – Dismissal of proceedings for want of prosecution – Application made ex parte for airport watch list order

APPLICANT: MS ROET

RESPONDENT: MR ROET

FILE NUMBER: MLC 1676 of 2010

DATE DELIVERED: 25 FEBRUARY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 25 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr INGLEBY

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT the Initiating Application of the Wife filed by her former solicitor on 24 February 2010 be dismissed.

2. THAT the former solicitors for the wife, Moores Legal, file a Notice of Ceasing to Act as the legal practitioner for the Wife on or before 2.00 p.m. Friday 26 February 2010.

3. THAT the extempore reasons for judgment be transcribed, placed upon the court file and be sent to the former solicitors for the Wife and to the Wife at her residential address.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1676 of 2010

MS ROET

Applicant

And

MR ROET

Respondent

REASONS FOR JUDGMENT

1. The matter of Roet was listed before me as a matter of urgency yesterday, 24 February.  Dr Ingleby, with his instructing solicitor, then appeared for the applicant wife and there was no appearance by or on behalf of the husband.  The application before the court was filed, as a matter of urgency and on an ex parte basis, and with time abridged by a Registrar as to paragraphs 11 and 12 (only) thereof. 

2. What was then before the court for ex parte hearing was an order sought by the wife to restrain either the husband and wife and/or the children or any of them from removal from the Commonwealth of Australia and for names to be placed on the airport watch list and otherwise for an order by way of restraint over assets and possessions of the husband not to sell, charge, mortgage or otherwise deal with his Westpac Bank account or other assets within Australia.  Otherwise time was not abridged for the hearing of the orders identified in paragraphs 1-10 therefore (inclusive) and orders sought in paragraphs 13-19 (inclusive) thereof.

3. The initiating application was supported by an affidavit of the wife, a corroborating affidavit of her mother, and a financial statement of the wife filed pursuant to Rule 13.05.  I have read all of those documents as of yesterday.  The orders that I yesterday pronounced were simply to adjourn the further hearing of paragraphs 11 and 12 of that application before me at 11.30 am this day.  I directed forthwith that the solicitors for the wife serve upon the husband all documents filed with the court.  I made no airport watch list or surrender of passport order or any other order.  I did however note upon the file the fact that the three children of the marriage were currently living in the T home of the wife’s mother and that an airport watch list order was sought by the wife’s counsel.  But on the basis of what was deemed appropriate by the court, the matter was stood over for hearing this day, that is, Thursday, 25 February 2010.

4. It is not now relevant for the court to further examine the facts and issues arising in this case.  What had been before the court was a circumstance where the wife had travelled independently from Singapore to Melbourne. Subsequently, the husband and three children of the marriage, whose ages are seven, five and four years, had travelled to Melbourne.  The parties, according to the wife’s affidavit, had a family wedding to attend this coming weekend.  The husband was in Sydney yesterday and was not at court and had not been served with any proceedings.  The wife deposed to the fact that the husband had return airfares to Singapore for himself and the three children departing Sunday, 28 February.  The parties had not formally separated according to the wife’s material, though the indication for her to separate from the husband was clearly contained within her affidavit. 

5. What has occurred this morning is that, as a matter of courtesy to the court and on an amicus curiae basis Dr Ingleby has appeared at 11.30 a.m. to advise that his client has withdrawn instructions to act from his instructing solicitors.  On that basis he has no ongoing instructions to represent the wife in the matter and his appearance therefore is as a matter of courtesy as the matter was listed this morning.  Dr Ingleby has informed the court and I accept that he has no knowledge of service of the documents upon the husband and is unable to wholly inform the court as to whether there would be any appearance by either of the wife pursuant to her application or the husband with any other response thereto.  I accept those circumstances outlined by Dr Ingleby.

6. The situation is therefore that the wife was in court yesterday.  She heard and was aware of the adjournment of this matter until 11.30 a.m. this day.  She has not appeared and is thus not present in court to prosecute her application or otherwise has not contacted the court or made any other arrangement for the hearing of her application upon which time had been abridged and it was listed only as to paragraphs 11 and 12 thereof as a matter of urgency.  It would seem that all such urgency has now expired.  The court cannot allow this matter to remain both unresolved and not prosecuted. 

7. What I intend to do, it now being 11.47 am and there being no further appearance, is to dismiss the initiating application and that will mean that all proceedings before the court in this matter are concluded.  I will be over the next few hours in chambers and available to take any urgent and properly formulated application to restate this proceeding or any like proceedings, but I emphasise that must be upon proper material filed and served and proper grounds.

8. The intent of providing short extempore reasons is that they will be transcribed and placed upon the court file and there will be this formal record of the events in court yesterday and of my actions in dismissing the application this day.  For those brief reasons and on the basis of there being no appearance by the wife or no other approach to the court, I formally dismiss the initiating application filed by her previous solicitors on her behalf yesterday.  I require the solicitors to file a notice of ceasing to act immediately, that is, prior to 4.00 p.m. tomorrow.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: