Satya and Wiyata

[2012] FamCA 308

FAMILY COURT OF AUSTRALIA

SATYA & WIYATA [2012] FamCA 308

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Satya

RESPONDENT: Mr Wiyata

FILE NUMBER: MLC 9519 of 2011

DATE DELIVERED: 24 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Raniga

SOLICITOR FOR THE APPLICANT: RRR Lawyers

THE RESPONDENT: No appearance

Orders

1. That the application filed 21 October 2011 and the application in a case filed 28 December 2011 are both adjourned to 17 February 2012 at 10.00am.

2. That if the husband fails to file and serve a response, financial statement and affidavit (including as to his absence from the hearing thus far and his failure to comply with orders) the wife have leave to proceed on 17 February 2012 as an undefended application.

3. That the husband be forthwith served with a copy of this order by:

   (a)post to the address shown in the Notice of Ceasing to Act filed 15 December 2011; and

   (b)the email address shown in the same document.

4. That the wife file and serve an amended application and affidavit material upon which she intends to rely by 4.00pm on 13 February 2012 which material shall be served by email transmission to the address shown in paragraph 3 of these orders.

5. Reserve the wife’s costs of this day to the return date.

6. That the reason provided this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Satya & Wiyata has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9519 of 2011

Ms Satya

Applicant

And

Mr Wiyata

Respondent

REASONS FOR JUDGMENT

1. This is an application that began property and parenting proceedings on 21 October 2011 by the wife.  The husband was served with the material.  It seems a common ground between the parties that the husband is predominantly living in a country in Southeast Asia, where he has a construction company and has connections with the government.  The matter came on for hearing on 10 November, at which stage the solicitor who had then lodged the notice of address for service appeared for the husband.  The matter had prior to that been listed on 24 October 2011, where Senior Registrar FitzGibbon made orders on an ex parte basis relating to watch list orders.  The Senior Registrar was obviously sufficiently concerned and satisfied to make the orders.  When the matter came back for hearing before the Senior Registrar on 10 November, those orders were not altered, but further orders were made in relation to the husband spending some time with the children, he clearly at that stage and in the foreseeable future thereafter being in Australia. 

2. Importantly for my purposes, procedural orders were made in November that the husband file and serve a response and financial statement together with any relevant affidavit material by 27 November.  The court record notes that no such document was filed.  The period subsequent to that would indicate that the husband is not intending to participate in the proceedings any further nor to return to Australia in the foreseeable future.  On 15 December 2011, the solicitor then acting for the husband provided the Court with a notice of ceasing to act and indicated two addresses, one an email address and one a personal address in the country in Southeast Asia.  The wife filed an application in a case on 28 December which was served in a similar fashion to that which I am now contemplating, effectively suggesting that the husband is not going to participate in any of the proceedings and therefore there is no reason to hold up the case any further.

3. In discussions this morning it has become apparent that there is some problem in relation to the affidavit material of the wife.  I intend to give the wife an opportunity to rectify those matters and let the husband know that if he is not here on the next return date, which is 17 February 2012, and having complied with all of the orders that would enable the Court to deal with the matter properly, the wife may proceed on an undefended basis. 

4. I propose to have all of those documents brought to the husband’s attention to his address set out in the notice that was given previously.  It seems that he reacts to an email, because an email was sent to him setting out that this application was before the Court and he responded the following day.  It is not clear that he responded to the email from the solicitors, but he certainly has got an email address which is active. 

5. On that basis, he needs to understand that if he is not here and is not going to participate in the proceedings, the Court will do the best it can and proceed in his absence. 

6. I will have those reasons transcribed, and I will make the orders that I foreshadowed before.

I certify that the preceding Six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 January 2012.

Associate: 

Date:  17 April 2012