ZIDANE & AOITA

[2014] FamCA 1245

FAMILY COURT OF AUSTRALIA

ZIDANE & AOITA [2014] FamCA 1245

FAMILY LAW – PRACTICE AND PROCEDURE – Striking out – discontinuance filed by mother – no appearance by father or instructions given to counsel appearing on his behalf –response struck out with right of reinstatement.

Family Law Act 1975 (Cth)

APPLICANT: Ms Zidane

RESPONDENT: Mr Aoita

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8605 of 2011

DATE DELIVERED: 15 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bayliss

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Soldatos

SOLICITOR FOR THE RESPONDENT: Noble House Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDER THAT

1. The father’s response to the mother’s further amended initiating application filed 21 July 2014 be struck out and removed from the list of cases awaiting hearing.

2. The father have liberty to apply to have his response to further amended initiating application filed 21 July 2014 reinstated conditional upon him filing an affidavit in support of that application setting out the reasons for his failure to attend or give instructions this day.

3. The order for the appointment of the Independent Children’s Lawyer’s be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zidane & Aoita 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 8605 of 2011

Ms Zidane

Applicant

And

Mr Aoita

Respondent

And

Independent Children’s Lawyer

REASONS

1. In this matter, there have been various applications and responses to application filed since the matter commenced on 22 September 2011.  The matter was set down for final hearing before me this day, and orders were made for the filing of affidavits in preparation for the hearing.  On 9 July 2014, the mother filed a further amended initiating application and an affidavit in support of that application, and on 21 July 2014 the father filed a response to that further amended initiating application. 

2. On 4 August 2014, the matter was set down for final hearing and the mother was to file and serve an amended application setting out with precision the orders to be sought, her affidavits of evidence-in-chief and a financial statement by 4.00 pm on 26 September 2014.  Pursuant to those orders of 4 August 2014, the father was required to file and serve an amended response setting out with precision the orders to be sought, his affidavits of evidence-in-chief of all witnesses relied upon and a financial statement by 4.00 pm on 17 October 2014. 

3. On 7 October 2014, the mother filed an initiating application, an affidavit and a financial statement.  However, on 18 November 2014 she filed a notice of discontinuance.  She is not present today, and I am told by Mr Bayliss, who appears on her behalf today, that she is in Country B attempting to see the eldest child of the marriage, who lives in Country B with the paternal grandparents. 

4. The father has not filed a response, his affidavits of evidence-in-chief or a financial statement as he was required to do, nor has he appeared today.  Mr Soldatos, who appears on his behalf today, although perhaps that could be loosely described as appearing on his behalf – and that is not a criticism of Mr Soldatos – has not been given any instructions by the father as to where he is, why he is not appearing and whether he wishes to proceed with his application contained in his response filed on 21 July 2014.

5. A report has been prepared in some detail by Ms C, although I note that the mother did not attend her appointments for the purposes of the preparation of that report.  There are orders in force, and although Ms C suggests some variation to these orders, she generally recommends a regime not dissimilar to that that the parties have at present.  In all of the circumstances, including that the mother has no proceedings on foot because she has discontinued those proceedings and the father is not here to prosecute his application, I am satisfied that the appropriate course is to strike out the father’s response.  I will allow him the liberty to apply to reinstate that application, but in so doing he will need to explain why he did not appear today or give instructions to Mr Soldatos in order to proceed with his application today. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice MacMillan delivered on 15 December 2014.

Associate: 

Date:  12 March 2015