Rowntree and Rowntree

[2008] FamCA 1157

FAMILY COURT OF AUSTRALIA

ROWNTREE & ROWNTREE [2008] FamCA 1157

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal for want of prosecution

Family Law Act 1975 (Cth)

APPLICANT: Mr Rowntree

RESPONDENT: Ms Rowntree

FILE NUMBER: DGF 1337 of 2004

DATE DELIVERED: 3 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance by or on behalf of the applicant

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Orders

1. That the husband's application filed 12 November 2004 is dismissed for want of prosecution.

2. The wife's response filed 10 December 2004 is struck out.

3. That the letter dated 3 November 2008 be marked as Exhibit A and remain on the file.

4. A transcript of my reasons for judgment be placed on the court file.

5. All proceedings be removed from the list awaiting a hearing. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGF 1337 of 2004

MR ROWNTREE

Applicant

And

MS ROWNTREE

Respondent

REASONS FOR JUDGMENT

1. This is a property application filed by the husband seeking final orders on 12 November 2004.  The property orders were quite detailed.  On 10 December 2004, the wife filed a response which was also indicating that there was a dispute and her orders were sufficiently detailed as well.

2. The husband filed a Notice of Ceasing to Act on 30 September 2005.  Before ceasing to act, the husband was represented at a hearing on 10 December 2004 at which procedural orders were made, including for a conciliation conference on 24 March 2005.  Both parties were represented by lawyers.  The matter on that day was not resolved and accordingly the case was placed in the list to be determined on a date to be fixed.

3. On 17 May 2007, the case came for a procedural hearing before Registrar Windebank.  The Registrar noted on the file that there was no appearance at the parties, but that the matter had settled and "a deed will be entered".  The Registrar then adjourned the matter to a further directions hearing on 16 August 2007.

4. The deed to which the Registrar referred seems to have been something to do with bankruptcy, because in her file note she shows that the solicitors for the wife to advise Insolvency Trustee Service of Australia.  When the matter came back for another procedural hearing on 16 August 2007, the wife was represented by her solicitor, but there was no appearance of the husband.  The file record shows that the husband was bankrupt and that the settlement arrangements were waiting finalisation.  Accordingly, the Registrar adjourned the matter to 13 December 2007.

5. On 13 December 2007, again the husband did not appear and the wife was represented by a solicitor.  The Registrar noted that the bankruptcy was still proceeding and that on that basis the case was referred in to the Melbourne registry from Dandenong where it had been since it was issued.

6. The matter came before me on 14 July 2008 and the same solicitor who appeared for the wife previously appeared before on that day and there was no appearance for the husband.  I made an order on that day that the wife have liberty to seek to proceed to have the matters outstanding heard on an undefended basis and I fixed 3. November 2008 for that to occur.

7. That was conditional, however, upon the wife who was the respondent filing an amended response setting out with precision what orders she wanted and serving personally upon the husband care of Mr D Rowntree a copy of the orders that I made.  D Rowntree is noted in my orders as the son of the husband.  I made a provision that the wife file affidavit material by 30 September.  There has been no activity on the file since that order was made.

8. The matter was called this morning and the records shows there is no appearance for anyone.  The fax was received at 8.42 am by the court this morning from Alphastream Lawyers in Mulgrave.  I propose to read into the transcript the entirety of that letter.  It says that the fax is urgent because the hearing was on today.

   The applicant husband is no longer represented and has had a trustee in bankruptcy appointed.  We have not been able to make contact with the applicant husband for a number of years.  The matter has been adjourned by our client for a number of years whilst a deed of settlement was being negotiated with a trustee in bankruptcy.  A deed of settlement has now been entered between our client and the trustee in bankruptcy concerning real property.  There is no superannuation of the parties, and on the financial statements filed by both parties, no personal property of any substance.

9. The letter then goes on to make reference to the order that I made on 14 July and then says,

   In view of there being no superannuation or personal property of  substance, our client has instructed us not to go to the expense of proceeding with the final hearing.  Accordingly, no appearance will be made by our client this morning and we request the matter be struck out.  We do not imagine that any appearance will be made by the applicant husband as he has had no notice of the hearing today, given that our office has not been able to, nor had any further instructions from our client to proceed with serving the orders made on 14 July on the applicant husband.

10. The last sentence is a little troublesome having regard to the fact that I made a specific provision that the husband was to be served care of his son.  The wife makes it clear in that letter that she does not intend to proceed any further, and to some extent that is her prerogative and solves the problem.  Unfortunately, it does not really solve the problem of the fact that the husband was the applicant, so to that extent I need to deal with his application.

11. This is a case where the applicant husband filed in 2004 and we are coming up to the fourth anniversary of the filing.  There has not been any appearance since the husband went bankrupt, although I am not told exactly when that occurred.  It seems to me that the husband, either personally or through the bankruptcy trustee, has had ample opportunity to participate in the proceedings and has chosen not to do so.  This is a case where the applicant's application should be dismissed for want of prosecution rather than simply struck out.

12. The wife's response, as I've indicated, also sought orders and she does not want to proceed with those, having regard to the fact that she has entered into an arrangement with the trustee and she is content for her application to simply be struck out.  I propose to agree with that course of action.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  12 November 2008