Virgilac and Sutin

[2010] FamCA 898

FAMILY COURT OF AUSTRALIA

VIRGILAC & SUTIN [2010] FamCA 898

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

APPLICANT: Ms Virgilac

RESPONDENT: Mr Sutin

FILE NUMBER: MLC 11139 of 2009

DATE DELIVERED: 5 OCTOBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 5 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: NO APPEARANCE

SOLICITOR FOR THE APPLICANT: SHIFF & COMPANY

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT: DELLIOS WEST & CO

Orders

1. That the application in a case filed 1 July 2010 by the wife and the response filed 14 July 2010 by the husband are struck out.

2. That the parties have liberty to apply.

3. That the substantive applications of the parties be placed in the pool of cases awaiting a determination with priority from 9 March 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11139  of 2009

MS VIRGILAC

Applicant

And

MR SUTIN

Respondent

REASONS FOR JUDGMENT

1. In this matter, I propose to return the case to the pool of cases awaiting a determination before a trial judge. 

2. On 11 December 2009, Ms Virgilac (“the wife”) filed an application seeking predominantly that a financial agreement made pursuant to s 90C of the Family Law Act 1975 (Cth) (“the Act”) be set aside.

3. On 16 March 2010, Mr Sutin (“the husband”) filed a response seeking that the wife’s application be dismissed.  That response was filed some days after the case assessment conference.

4. The case assessment conference was held by Registrar Russell on 9 March 2010.  Both parties were represented.  The matter did not resolve and it was placed in the pool of cases awaiting a determination with priority from 9 March 2010.  The registrar noted on her order that the parties intended to attend private mediation “within two months from today’s date”.

5. The court heard nothing further about the matter until an application in a case was filed by the wife on 1 July 2010.  It came into the Judicial Duty List on 14 July 2010.  On that day, the husband filed a response to the application. 

6. The wife’s application sought an order that the matter be given a “priority listing” due to “the special circumstances of this case”.

7. The husband’s response simply sought that the parties agree on valuations and the proceeding be referred to mediation.

8. In the Judicial Duty List on 14 July 2010, both parties were again represented by the same practitioners. On that day, the matter was adjourned to 5 October 2010 for mention. Again, mention was made of the fact that the parties were attending a mediation and if it did not resolve at that time, the mention hearing would consider the issue of an expedited hearing because of the fact that the application was under s 90K of the Act.

9. On 1 October 2010, both parties advised the Court that they had made progress in the resolution of the matters in dispute and were in the process of negotiating a settlement.  They noted in the letter that “a mediation will be convened in the coming weeks for the purposes of negotiating the terms of settlement”.

10. The parties then sought an adjournment for four weeks.

11. There is no basis for this matter to be given priority having regard to the fact that the parties are negotiating.  The Court’s resources are finite.  If the parties resolve the matter, they can have orders made by a registrar.

12. No reason was advanced why the application in a case should be continued as the urgency appears to have evaporated.  In those circumstances, I propose to strike out the applications for interim orders and to place the matter back in the pool awaiting final determination.  The parties can clearly make a further application if they can justify their respective positions for some urgency.  It is clearly not apparent on the basis of the material on the file.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 October 2010.

Associate: 

Date:  6 October 2010