VUKOJA & VUKOJA

[2020] FamCA 614

FAMILY COURT OF AUSTRALIA

VUKOJA & VUKOJA [2020] FamCA 614

FAMILY LAW – PRACTICE AND PROCEDURE – Where application for adjournment of undefended hearing – Where applicant had failed to comply with previous orders and directions – Where application refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Vukoja

RESPONDENT: Mr Vukoja

FILE NUMBER: PAC 129 of 2018

DATE DELIVERED: 16 June 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Nikola Velcic & Associates

SOLICITOR FOR THE RESPONDENT: Mr Putrus

Orders Made on 16 June 2020

1. The Application by the Respondent husband to vacate the undefended hearing is dismissed.

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 Vukoja & Vukoja 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 PARRAMATTA

FILE NUMBER: PAC 129 of 2018

Ms Vukoja

Applicant

And

Mr Vukoja

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the applicant mother filed an Initiating Application on 16 October 2019 seeking both final and interim orders in relation to the three children of the parties’ relationship.

2. Those children are presently aged eight, six and three, and have remained in the primary care of the mother since the parties’ separation in early 2017.  By way of context, the parties commenced cohabitation at the time of their marriage in 2010 and separated in 2017.

3. The mother’s Initiating Application came before a Registrar of this Court for directions on 9 December 2019.  It was noted on that date that the respondent husband was served with the mother’s application on 20 October 2019, sometime before the matter came before the Registrar. 

4. The husband at that time was in occupation of the matrimonial home that had been transferred to the applicant pursuant to property orders made by consent in January 2018, with those property orders now the subject of an application by the husband’s trustee in bankruptcy to be set aside under section 79A of the Family Law Act 1975 (Cth) (“the Act”).

5. The Registrar on 9 December 2019 ordered the husband to file and serve his Response, a Financial Statement and affidavit by 9 January 2020.  The matter was then adjourned for further directions on 16 January 2020 in respect to the mother’s interim application for interim parenting orders.

6. On 16 January 2020, the interim application came before the Court in the Registrar’s judicial list callover.  The mother was represented by her solicitor and there was no appearance on that day by or on behalf of the respondent husband and he had not complied with the directions of the Registrar to file and serve documents.

7. The Registrar noted that the interim application was for callover and the mother sought urgent interim parenting and protection orders.  The Registrar further noted that the wife’s solicitor advised that she had filed all material upon which she relies save for a copy of the apprehended violence order made in October 2019.  The proceedings were transferred by the Registrar to the judicial duty list, 10.00 am on 20 January 2020, noting that it may proceed undefended.

8. The Registrar further directed that the mother forthwith notify the father in writing to his last known address of the orders made on 16 January and possible consequences of his non-attendance at the next court event; namely that the matter may proceed on an undefended basis.  The applicant was required to forward a text message to the father informing him of the directions and the consequences of his failure to appear.  That text message was duly forwarded.

9. The mother’s interim application came before the Court on 20 January 2020, on which date the mother was represented by Ms De Vere of counsel and the husband appeared unrepresented.  On that date:

   a)the proceedings were adjourned for judicial case management to 28  February 2020;

   b)the father was again ordered to file and serve a Response setting out with particularity the final and interim parenting orders sought by him by no later than 21 February 2020;

   c)by consent, orders were made providing:

   i)that the mother have sole parental responsibility for the three children of the relationship;

   ii)that the children live with the mother and that the children spend no time with the father; 

   iii)that pursuant to 68B of the Act that there be certain restraints on the father; that he be restrained from causing or threatening to cause bodily harm to the mother and he be restrained from harassing, molesting or stalking the mother and/or the children; and

   iv)that the restraining orders were orders for personal protection of the mother and the children under section 68C of the Act, to which the power of arrest without warrant applies.

   d)a sealed copy of the orders was forwarded by the Court that day to the father’s address at B Street, Suburb C; 

   e)the Court noted the father informed the Court on 20 January 2020 that he will shortly be consulting a solicitor seeking legal advice in relation to parenting orders sought by him; and

   f)the mother was granted leave to issue subpoenas returnable 27 March 2020.

10. The proceedings again came before the Court on 28 February 2020 and the mother was represented again by Ms De Vere of counsel and the husband appeared in person, although there was no appearance by him at 10.00 am when the matter was called, but he appeared before the Court at 10.44 am.

11. On 28 February 2020, the Court ordered:

    a)the mother’s application for final parenting orders be adjourned for undefended hearing today 16 June 2020 at 10.00 am.  The mother was granted leave to issue subpoenas; 

    b)the mother was ordered to file one consolidated affidavit in support of her application for final parenting orders;

    c)the time for the father to comply with orders made on 20 January 2020 requiring him to file a Response was extended to no later than Friday, 27 March 2020;

    d)that for the purposes of service of documents, the father’s address for service was by email at ...; and

    e)the Court reserved the costs of the mother.

12. Today, 16 June 2020, the mother, at significant expense, has prepared her consolidated affidavit in support of orders sought by her, a tender bundle of other documents relied upon in the course of the proceedings and has instructed counsel to appear on the undefended hearing. 

13. When the matter was called at 10.00 am, a Mr Putrus, solicitor, sought leave to appear on behalf of the husband notwithstanding that no documents have been filed and the Court has not received any Notice of Address for Service filed by Mr Putrus.  Mr Putrus sought that the undefended hearing not proceed and the father be given yet another opportunity to engage in these proceedings.

14. The Court is cognisant of the evidence of the mother in terms of the abhorrent behaviour of the father during the course of their relationship, including Apprehended Domestic Violence Orders that have been made and objective evidence as to damage and other behaviour by the father. 

15. In the circumstances, the Court is not prepared to vacate the undefended hearing, the application for adjournment is refused. The matter will proceed to undefended hearing.

16. The matter proceeding on an undefended basis does not preclude the father from making such further or other application as he may be advised.  So in all of the circumstances, the Court is not prepared to grant any further extension to the father. The undefended hearing will proceed today. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 June 2020.

Associate: 

Date:  16 June 2020