Vieri and Coley

[2017] FamCA 1136

FAMILY COURT OF AUSTRALIA

VIERI & COLEY [2017] FamCA 1136

FAMILY LAW – CASE MANAGEMENT – No appearance  - proceeding struck out.

Family Law Act 1975 (Cth)

APPLICANT: Ms Vieri

RESPONDENT:	Mr Coley
FILE NUMBER:	MLC	1366	of		2017

DATE DELIVERED: 7 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 December 2017

REPRESENTATION

THE APPLICANT: No Appearance

THE RESPONDENT: No Appearance

Orders

1. That the application initiating proceedings filed by the applicant on 15 February 2017 is struck out.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vieri & Coley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1366 of 2017

Ms Vieri

Applicant

And

Mr Coley

Respondent

REASONS FOR JUDGMENT

1. On 15 February 2017, Ms Vieri, to whom I shall refer as “the applicant”, filed an application seeking orders for the alteration of property.  The respondent to that application was Mr Coley, to whom I shall refer as “the respondent”.  The file discloses that Mr Coley, the respondent, has not participated in the proceedings at any stage.  The case has been before the Court on 30 May 2017 and again on 14 July 2017.  Both of those hearings were before Registrars. 

2. On 3 October, the matter came before me on the basis that it was referred for final hearing because of the fact that the respondent had not participated and the applicant wanted to proceed on an undefended basis.  On 3 October, the respondent did not appear, but the solicitor for the applicant did.  In discussions with the solicitor for the applicant, it was clear that her client needed to do two significant things.  The first was to file an amended application, and the second was to file evidence-in-chief to support any orders that were to be sought.

3. In respect of the filing, all had to be completed by 4 pm on 17 November 2017.  Curiously, nothing further was filed.  And even more interestingly, nothing further has been heard from anyone, including the solicitor for the applicant.  The application itself, filed in February 2017, could not proceed, on the basis that it did not plead with particularity the nature of the orders sought; hence I made orders on 3 October for that situation to be altered.

4. The affidavit material that was on the Court file was a grab-bag of affidavits by two solicitors and also by the applicant herself, complaining bitterly about the lack of cooperation from the respondent and the difficulties he had created for her in respect of service.  She seemed sufficiently concerned to give instructions to her solicitors to issue a subpoena to the Westpac to obtain details of the mortgage over the property that was in dispute, and also various banking records of the respondent and, indeed, what was described quaintly as “his business”.  I have no idea whether Mr Coley, the respondent, is a sole trader, whether he’s in a partnership with somebody or whether there is a corporate entity.  It looks remarkably to me like this case has not been prepared at all, let alone at all well. 

   ORDERS DELIVERED

5. The reasons will be transcribed and placed on the Court file. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 December 2017.

Associate: 

Date:  5 February 2018