ZEEGER & BLACK

[2014] FamCA 952

FAMILY COURT OF AUSTRALIA

ZEEGER & BLACK [2014] FamCA 952

FAMILY LAW – PRACTICE AND PROCEDURE - Application - Striking Out.

APPLICANT: Mr Zeeger

RESPONDENT: Ms Black

FILE NUMBER: MLC 5323 of 2012

DATE DELIVERED: 31 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 31 October 2014

REPRESENTATION

SOLICITOR/ADVOCATE FOR THE

APPLICANT:

Mr Schetzer

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

SOLICITOR/ADVOCATE FOR THE

RESPONDENT:

Mr Kaufman

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. All extant applications are struck out with a right of the parties to have the application(s) reinstated upon one or more such parties certifying to the docketed Registrar that the issues are unresolved and require a determination by a judge and that the matter is otherwise ready to proceed to a final hearing.

AND THE COURT NOTES THAT:

A.The parties are continuing to attend upon Ms S for reportable therapeutic assistance

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5323  of 2012

Mr Zeeger

Applicant

And

Ms Black

Respondent

REVISED REASONS FOR JUDGMENT

1. This matter came before me for a first day of hearing today.  The matter involves a young child, M, who is four years and three months of age.  The parties have been embroiled in litigation since the child was around two years of age. 

2. Today, the parties’ representatives have informed the Court that they are seeking to advance and finalise this matter without any court intervention.  The parties’ representatives submit that the parties have embarked on a procedure whereby, with the assistance of Ms S and the child’s psychologist, they are taking things “very cautiously and advancing the matter at an appropriate rate”.  They accordingly seek that the matter be adjourned for a period of six months to enable them to do so.

3. I have determined that as there are very many cases before this Court that are awaiting urgent hearings.  I am reluctant to have this matter adjourned and carried over for a further six months and hold a place in my docket which could be being used for matters which are ready to proceed.

4. The representatives for the parties emphasised their concern that having the matter struck out could exacerbate, delay, hinder or frustrate the advancement of the discussions.  Mr Schetzer, for the applicant, submitted that the Court should allow the parties the benefit of the case remaining before the Court so as to facilitate and ensure, to some extent, that the progress the parties have made so far continues.

5. However, I am of the view that it is not appropriate for the Court to adjourn the matter for a period of six months, because when matters are placed in the judicial docket to be listed for trial, they should be ready to proceed.  I cannot justify holding a matter in the list and setting aside time for the Court when the parties have indicated that they might well be able to sort this out for themselves and the matter therefore does not require any court attention or time.

6. I note that striking a matter out with a right of reinstatement does not strike the matter out completely; it does not mean that the parties have to, essentially, start all over again and refile a plethora of material.  Rather, what I would be proposing to do is make an order that strikes it out with a right of the parties to have the application reinstated upon one or more such parties certifying to the registrar that the issues are unresolved and require a determination by a judge.  Then the matter is otherwise ready to proceed to a final hearing and it can be returned to my docket.  The matter is still sitting there waiting to be resurrected in the event that you need the matter brought on and I am happy to expedite the matter if I am in a position to do so. 

7. In summary, when a matter is allocated to a judicial docket, it should be ready for trial.  This is not the case here and I therefore will make an order striking this matter out with a right of reinstatement.

I certify that the preceding seven (7) paragraphs are a true copy of the revised reasons for judgment of the Honourable Justice Thornton delivered on 31 October 2014.

Associate: 

Date:  6 November 2014