Bologna & Ready [2025] – Property Application Dismissed After Applicant Fails to Appear in Court

EX TEMPORE REASONS FOR JUDGMENT

CAMPTON J:

1. By way of an Initiating Application filed in the Federal Circuit and Family Court of Australia (Division 2) on 23 April 2024, Ms Bologna (“the wife”) sought orders as to an agreement entered pursuant to s 90B Family Law Act 1975 (Cth) (“the Act”) and the Property (Relationships) Act 1984 (NSW) between she and Mr Ready (“the husband”) on 22 September 2006.
2. The agreement records that the wife and the husband commenced cohabitation in 2005. They married in 2006.
3. The agreement regulates the adjustment of property pursuant to s 79 of the Act as between the parties in the event of the breakdown of the marriage. It does not exclude an application pursuant to Pt VIII of the Act.
4. By way of orders made on 31 July 2024, Ms B was appointed as the litigation guardian for the husband.
5. The husband filed a Response on 18 June 2024 seeking that the application of the wife be dismissed.
6. The wife filed points of claim on 28 October 2024. They do not directly engage with the terms of the relief sought in her Initiating Application. The husband filed points of defence on 20 November 2024.
7. The proceedings were listed for case management before Judge Eldershaw in the Federal Circuit and Family Court of Australia (Division 2) on 19 February 2025. Orders were made on 18 February 2025 in chambers listing the matter today in this forum at 12 noon today in person and transferring the proceedings to the Federal Circuit and Family Court of Australia (Division 1).
8. As recorded on the transcript, the husband, by way of his litigation guardian and his legal representative, were present in Court at 12 noon today. The wife did not appear at 12 noon, nor did her legal representative. Upon the matter being called three times outside the Court at 12.09 pm, there was no appearance by or on behalf of the wife.
9. I am told by the husband’s legal representative that the wife’s solicitor forwarded an email to the chambers of Judge Eldershaw at or about 10.40 am this morning advising that she was “stuck in another jurisdiction” and would be 10 or 15 minutes late.
10. Chambers does not read, respond to or engage with unilaterally sent emails. Urgent applications are not to be made to chambers unless specific leave is sought.
11. It is self-evidently not appropriate for any litigant or legal practitioner to communicate directly with chambers. On one view, such conduct may be considered unsatisfactory professional conduct.
12. The matter was stood until 12.30 pm to permit the wife to appear. Neither she or her solicitor appeared when the matter was recalled after that time.
13. Rule 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) identifies the circumstances whereby an applicant may be in default of an order. It includes failing to comply with an order. Rule 10.27 identifies orders that may be made in default of compliance with the whole or part of any order.
14. The wife had every opportunity to appear in person or by way of a legal representative when the matter was listed. She failed or neglected to do so. The husband has made application, having regard to that default, for the Initiating Application filed on 23 April 2024 to be dismissed. In the circumstances, there is no probative reason why that application should not be acceded to.
15. For all of the above reasons, orders are made as set out herein.

Associate:

Dated: 20 February 2025