Vestri & Vestri (No 3)
[2024] FedCFamC1F 229
•8 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vestri & Vestri (No 3) [2024] FedCFamC1F 229
File number(s): CAC 405 of 2022 Judgment of: GILL J Date of judgment: 8 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant did not appear – Where this is in the context of egregious non-compliance by the applicant – Hearing to continue on an undefended basis Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.33 Division: Division 1 First Instance Number of paragraphs: 3 Date of hearing: 8 April 2024 Place: Canberra Solicitor for the Applicant: Litigant in Person (did not participate) Counsel for the Respondent: Mr Haddock Solicitor for the Respondent: Neilan Stramandinoli Family Lawyers Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid ACT ORDERS
CAC 405 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VESTRI
Applicant
AND: MS VESTRI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 APRIL 2024
THE COURT ORDERS THAT:
1.These proceedings will continue on an undefended basis in respect of the applicant husband.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vestri & Vestri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
This matter was listed for final trial to commence today, 8 April 2024 at 10 am. Mr Vestri was not in attendance at the commencement of the trial at 10 am. Attempts were made to contact him via his email address and via a telephone number from the Notice of Ceasing to Act filed by his previous lawyers and from the telephone number provided in his Initiating Application. There was no response to either as identified in exhibit C1. The matter was called on multiple occasions and as at 10:21 am Mr Vestri is still not in attendance at the registry. He has been invited to make contact via the chambers telephone number.
The non-attendance of Mr Vestri comes against a background of egregious non-compliance on his part with the preparation of the matter for trial. Mr Vestri has failed to file any material in respect of the trial of this matter, despite giving multiple opportunities to do so, and despite having multiple extensions granted to him to enable him to file trial material. The last of those extensions occurred under circumstances where, when previously represented, Mr Vestri’s lawyers indicated they were unable to be ready for the trial and, against the resistance put forward by the wife, the vacating of the trial date was permitted with a short adjournment to today's date to enable Mr Vestri to file material and to participate fully in the trial. He has still not done so and now his lawyers have filed a Notice of Ceasing to Act. He has provided no explanation for his non-attendance today and as far as can be discerned has made no contact with the court in respect of such.
In the face of the non-compliance and his non-attendance today it is appropriate, pursuant to rule 1.33, to determine the proceedings as if they were undefended in respect of Mr Vestri, noting that he has been granted every opportunity to participate in the hearing of the matter, but has not availed himself of those opportunities. Accordingly, in the procedures leading up to the setting of the matter down for trial I am satisfied that Mr Vestri has been given adequate procedural fairness and that the matter may now proceed in his absence.
I certify that the preceding three (3) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 April 2024
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