CAVOUR & CAVOUR

[2018] FamCA 726

FAMILY COURT OF AUSTRALIA

CAVOUR & CAVOUR [2018] FamCA 726

FAMILY LAW – PRACTICE AND PROCEDURE – where the wife seeks that the matter proceed undefended – where the husband seeks that the matter be adjourned – where the husband has not filed any material in compliance with trial directions – where the Court has the ability to re-list the matter in three weeks – order made adjourning the trial for three weeks – orders that the husband file trial material and in the event that he does not comply the matter will proceed undefended.

FAMILY LAW – COSTS – where the wife seeks costs thrown away – order made for the husband to pay the wife’s costs.

Family Law Act 1975 (Cth) s 69ZN, 117
Family Law Rules 2004 (Cth)

APPLICANT: Ms Cavour

RESPONDENT: Mr Cavour

INDEPENDENT CHILDREN’S LAWYER: Victoria legal Aid

FILE NUMBER: BRC 9228 of 2010

DATE DELIVERED: 6 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 6 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

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

Orders

1. That all extant applications for final orders be adjourned for hearing before Johns J on 27 August 2018 as a five-day matter.

2. That the time for the husband’s compliance with Order 4 of the Orders dated 7 May 2018 be further extended to 4.00pm on 13 August 2018.

3. That in the event of the husband’s non-compliance with Order 2 of these Orders the wife have leave to proceed with her Amended Application for Final Orders filed 28 May 2018 on an undefended basis.

4. That by 4.00pm on 20 August 2018 the husband pay the wife’s costs of this day fixed in the sum of $5,890.

5. That the costs of the Independent Children’s Lawyer of this day be fixed in the sum of $2,157 and reserved.

6. That the wife’s Application in a Case filed 20 July 2018 be otherwise 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 Cavour & Cavour 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 MELBOURNE

FILE NUMBER: BRC 9228 of 2010

Ms Cavour

Applicant

And

Mr Cavour

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today for final hearing in relation to both parenting and property matters.  The matter was fixed for hearing as a five day matter pursuant to orders made by me on 7 May 2018.  At the time I made those orders, all parties were represented by counsel, the husband on that occasion represented by Mr Marchetti of counsel.

The Applications

1. The matters raised before me at the commencement of the day are two‑fold. Firstly, there is the Application in a Case filed on behalf of the wife on 20 July 2018.  That application is supported by her affidavit filed the same day.  That application is an application that the matter proceed on an undefended basis.  That is an application that is supported by the Independent Children’s Lawyer, but opposed by the husband who represents himself before me this morning.

2. The second matter that I am asked to consider is the oral application made by the husband that the proceedings be adjourned.  That is an application that is opposed both by the wife and the Independent Children’s Lawyer.  The husband gave no notice of that application to the other parties before commencement of the hearing today.  He has presented to the Court what is described as “a letter to the Court” dated 6 August 2018 which has been tendered for identification purposes only as Exhibit H-1.  In effect, it is the husband’s submissions in support of his application for an adjournment.

Background

1. In order to understand the applications, it is necessary to consider the background to the proceedings. 

2. The parties are the applicant wife who is Ms Cavour.  She is aged 49 years.  She is engaged in temporary employment in administration. 

3. The husband is Mr Cavour.  He is aged 46 years.  He is self‑employed as a tradesman.

4. The parties married in 1997 and separated on a final basis in 2016.

5. There are two children of the marriage, B aged 15 and C aged 13.  Both children currently live with the husband.  Presently they are spending no time with the wife, their last occasion upon which they spent time with her being for a period of about an hour and a half at Easter this year.

6. The dispute in relation to future parenting arrangements for the children is the principal issue in the case, it being the wife’s position that she has been alienated from the children’s lives and that the children have entrenched views and are aligned to the husband.  The husband denies those allegations.

7. The orders sought by the wife on a final basis include an order that the children live with her and that they have a period of three months where they spend no time and do not communicate with the husband. 

8. As I have already noted, there are also property issues to be heard and determined by the Court.

9. The proceedings commenced their life in the Federal Circuit Court almost two years ago, on 8 August 2016. 

10. In May of 2017, the husband sought an adjournment of the final hearing in the Federal Circuit Court and sought a transfer of the proceedings to this Court.  Orders were made to that effect in May 2017.  The effect of the transfer has seen a delay in the proceedings by a period of almost 15 months.

11. As I have already noted, I made trial directions for the listing of this hearing on 7 May 2018.  The orders made by me that day included, at paragraph 4 of the orders, an order that the husband file and serve by 18 June 2018 an amended response and his trial affidavit material.

12. Order 12 of those orders provides that in the event that any party fails to comply with the orders of the Court or the amending directions of the docketed registrar, first the Court may relist the case, requiring the parties to justify why the matter should not be taken out of the list and, second, the party who has complied with the orders may immediately thereafter file an application in a case supported by affidavit seeking for the matter to proceed on an undefended basis.  It is that provision that is relied upon by the wife and which has motivated her to file the application in a case listed before me today.

13. The submission made, and there is no challenge to the position, is that the husband has filed no material in compliance with the orders made by me on 7 May 2018. 

14. The matter came before me again on 8 June 2018.  That day, application was made and acceded to, that there be an extension of time for the filing of the parties’ trial affidavit material.  Paragraph 3 of the orders made on 8 June 2018 provides as follows:

    That time be extended so that:

    (a)The Husband’s trial material is filed and served by 25 June 2018;

    (b)The Wife’s material in reply is filed and served by 6 July 2018; and

    (c)The ICL’s material (other than Mr J’s report) is filed and served by 13 July 2018.

15. The husband, notwithstanding the extension granted to him pursuant to those orders, has filed no trial affidavit material in accordance with those orders. 

16. Following the making of those orders, on 20 June 2018 the husband’s lawyers filed a Notice of Ceasing to Act.

17. In addition to the proceedings before this Court, there are also proceedings that have been on foot in the Magistrates’ Court of Victoria.  The next significant Court event for the parties in those proceedings occurred on 10 July 2018 which was the listed hearing date for the husband’s application seeking an extension of an intervention order against the wife.  The husband appeared in person at Court that day and sought an adjournment of those proceedings, it being his position there that he sought the opportunity to engage legal representation in circumstances where it was said that his lawyers had ceased to represent him.

18. The Magistrate, upon hearing submissions, acceded to the husband’s application for an adjournment and those proceedings were listed on 24 July 2018.  I am told that the husband’s application on that adjourned date was dismissed.

Submissions

1. The matters relied upon by the wife in support of her application for the matter to proceed on an undefended basis are as follows. First, there is the husband’s failure to comply with Court orders and directions, to which I have just referred.

2. Second, she refers to the impact an adjournment may have on other litigants in this Court, the drain on the Court’s resources, which is the effect of an adjournment of the listed trial date.  She submits that this matter has had already more than its fair share of Court resources, both in terms of the listed trial in the Federal Circuit Court which ultimately did not proceed due to the transfer of the proceedings to this Court, as well as the impact of adjourning a five day hearing.

3. The wife also points to the significant legal costs incurred by her to date.  I am told that she has expended more than $374,000 in these proceedings.  It is also submitted that the costs incurred by the husband, who has been represented in these proceedings until today, exceed $172,000.  The sum of $172,000 is the amount claimed by the husband’s first lawyers, who have an application before the Court today in respect of payment of their costs.  There are also costs incurred by the husband with Clark Family Lawyers who were the lawyers on the record until 20 June 2018.

4. The next matter relied upon by the wife is her concern as to the impact upon the children in the event of an adjournment of the proceedings.  The submission made is that, in circumstances where the children are currently not seeing their mother, these issues need to be heard and determined without delay.  The ongoing proceedings and the conflict between the parties is damaging to the children and a determination of those issues needs to be made as soon as possible to minimise the impact of the proceedings upon them and to address issues including whether there should be a resumption of the wife’s time with the children and if so, how to reunify the children with the wife.

5. The husband’s submissions go to two matters. Firstly, he says he has health issues which have impacted upon his ability to properly prepare for these proceedings.  The husband adduces no evidence of a current treating medical practitioner to support that submission.  Rather he places reliance on a letter from his counsellor dated 4 July 2018.  That letter states in part as follows:

   …Currently [Mr Cavour] is experiencing symptoms of post‑traumatic stress and needs to be reassured that his children are safe.  The children have made it clear that they feel safe and supported by their father…

6. In my view, that letter does little to advance the husband’s application for an adjournment.  As I have already noted, the letter is from a counsellor, not from a medical expert, and does little to inform the Court as to the husband’s current state of health, any treatment prescribed or prognosis for the future.  It does little to inform the Court as to the husband’s capacity to engage in these proceedings.

7. The husband also complains as to the conduct of his previous lawyers.  He submitted that he had paid the final bill from those lawyers on 14 June 2018 and was informed by that firm that they were not in a position to continue to act on his behalf, that information having been provided to him on 15 June 2018.

8. He submitted that he had attended upon that firm to collect his file on 19 June 2018, but that the file was not available at that time.  When asked by me as to what steps he had taken since that time to retrieve the file, the husband confirmed that he had done nothing in the month of July 2018 to secure the file to enable him to engage other lawyers.

9. The position of the Independent Children’s Lawyer is that from her perspective, the matter should be heard and determined without delay.  She raises serious concerns as to the position of the two children of the marriage given that they are currently spending no time with the wife and given the concerns as to their circumstances within the husband’s household.  Nonetheless the indication has been made by counsel representing the Independent Children’s Lawyer that she does not support the final orders that are sought by the wife with respect to parenting arrangements.

Discussion

1. The position insofar as an adjournment is concerned is that the Court does have the ability to relist this matter in three weeks commencing 27 August 2018.  That is an unusual position that has arisen recently only as a result of the Court vacating another matter that had been listed to proceed on that date.  But for that fact, it is likely that the matter would not have been able to be accommodated by the Court until 2019.  Had it been that there was no opportunity to relist the matter at the earlier date, it is likely that the husband’s application for an adjournment would have failed.

2. Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) sets out the principles that are to be considered in child‑related proceedings. It sets out how such proceedings are to be conducted. The principles enumerated in that section include, firstly, that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible.

3. The decision to grant or refuse an adjournment is a matter of practice and procedure within the discretion of a trial judge.  Generally speaking, if there is no injustice to any other party and a refusal to grant the adjournment would result in a denial of natural justice to the parties so applying, the adjournment should be granted.  The Court must also consider the effect of an adjournment on Court resources including the displacement of claims by other litigants and as is relevant as there is a public interest in the most efficient use of Court resources. The lack of legal representation may, in an appropriate case, compel an adjournment. 

4. The factors, it seems to me, that support the granting of an adjournment are as follows. Firstly, the husband has been represented in these proceedings throughout the proceedings until today.  I am mindful that English is not his first language and that he may require some assistance with respect to the proceedings having regard to that fact. I note his assertions as to his health issues.  As to what weight can be attached to those matters is questionable given the absence of any evidence to support his assertions.  Nonetheless, I note those matters.

5. I am also mindful of the importance for a parent to be able to litigate in relation to their children.  This is a serious matter that I am required to determine and there would be a significant impact were he to be denied the opportunity to put his case before the Court with respect to those matters.  Having regard to those factors and the ability of the Court to relist the matter within a matter of weeks, I am satisfied that it is appropriate to accede to the husband’s application for an adjournment.

6. Having said that, I am mindful of the fact that he has repeatedly failed to comply with Court orders.  Therefore, whilst he will have a window of time to rectify that situation, it will be a limited window.

7. What I intend to do is provide him the opportunity to file his trial affidavit material by 4.00 pm next Monday, 13 August 2018.  In the event that he does not comply with that order, I will make an order that the wife have leave to proceed with her application on an undefended basis.  There will be no further need to make application for the matter to proceed undefended. In that event the matter will simply proceed on its listed hearing day on an undefended basis.

Costs Application

1. I have also been asked to make orders as to the wife’s costs of this day thrown away.  Given the circumstance of the adjournment, it being an application made and raised by the husband for the first time this day, I am satisfied that there are circumstances justifying an order as to costs.

2. The question of costs is governed by section 117(1) of the Act which provides:-

   Subject to sub-section (2), subsection 70NF(b)(1) and sections 117AA, 117AC and 118, each party to proceedings under this act shall bear his or her own costs.

3. That is, the general rule in proceedings under the Act is that subject to the provisions of s 117(2) of the Act, the parties to the proceedings shall bear their own costs of the proceedings.

4. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to sub-sections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.

5. Section 117(2A) of the Act provides that in determining what order (if any) should be made under sub-section (2) the Court must have regard to the following:-

   (a)the financial circumstances of each of the parties to the proceedings;

   (a)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (b)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (c)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (d)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (e)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

6. The circumstances to which I have already referred that invite an order for costs is those set out at subparagraph (c) of s 117(2A) of the Act which goes to the conduct of the parties to the proceedings.

7. As I have noted, the husband gave no notice of his intention to seek an adjournment, that being announced upon the commencement of this hearing.  The wife has incurred significant costs both in terms of the preparation for the hearing this day, but also costs insofar as she has engaged counsel to appear on her behalf and has incurred the costs of her instructing solicitor.

8. The amount sought on behalf of the wife is the sum of $11,000. It is submitted that that sum is made up firstly of $5,500, being counsel fees and also $5,600 being the costs of her solicitor. The amount sought in respect of counsel’s fees is an amount that falls outside the range allowed for counsel’s fees prescribed under the Family Law Rules 2004 (Cth) (“the Rules”). Part 2 of Schedule 3 of the Rules provides that the scale allows for $2,938 in respect of junior counsel’s fees at Item 205 and I propose to allow that amount in respect of Mr Wilson’s fees. The hourly rate that is prescribed for a lawyer pursuant to Item 108 is currently $246 which, at 12 hours, allowing for preparation as well as attendance at Court, will be $2,952. I am satisfied that it is appropriate that the husband pay the wife’s costs fixed in the sum of $5,890.

1. The Independent Children’s Lawyer also seeks that her costs of this day be fixed and reserved. The amount sought to be fixed is $2,157, which is an amount within the amount prescribed pursuant to Item 205 of Schedule 3 of the Rules. I am satisfied, for the reasons indicated earlier, that it is appropriate that the independent children’s lawyer’s costs be fixed and reserved in that sum.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 August 2018.

Associate: 

Date:  6 August 2018