D and D - [2003] FMCAfam 202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & D

[2003] FMCAfam 202

FAMILY LAW – Property – conciliation conference.

PRACTICE AND PROCEDURE – Costs – circumstances justifying order – respondent fails to attend conciliation conference.

Family Law Act 1975, s.117(2)

Applicant:

RAD

Respondent:

JRMD

File No:

ADM 4711 of 2001

Delivered on:

23 April 2003

Delivered at:

Adelaide

Hearing date:

23 April 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms J Belchamber

Solicitors for the Applicant:

Janet Belchamber

The Respondent:

No appearance

ORDERS

The respondent husband is to file and serve a notice of address for service within seven days.
The respondent husband is to file and serve a response, an affidavit stating the facts upon which he relies and a financial statement in accordance with form 17 by 4.00pm on 30 May 2003.
The respondent husband is to give access to a valuer to attend the former matrimonial home at 10 O Avenue, M in the State of South Australia, at 10.00am on Wednesday, 14 May 2003.
All documents filed in these proceedings are to be headed Federal Magistrates Court of Australia at Adelaide and carry the file number ADM 4711 of 2001.
The application is listed for trial not before Tuesday, 16 September 2003, and I note that it is a matter which will require one day or less.
The applicant is to pay the hearing fee or obtain a waiver of that fee by 4.00pm on Tuesday, 9 September 2003.
The parties are to file and serve all further affidavit material upon which they seek to rely by 4.00pm on Tuesday, 9 September 2003.
Both parties are to comply with rule 24.04 by serving upon each other copies of the documents set out in that rule by Friday, 30 August 2003.
The respondent is to pay the applicant's costs of 9 April 2003 in the sum of $200 and of today's proceedings in the sum of $190 within two months from today.
I grant liberty to either party to apply in respect of any issue on seven days' notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADM 4711 of 2003

RAD

Applicant

And

JRMD

Respondent

REASONS FOR JUDGMENT

Application

The proceedings before the court today relate to a property application brought by the wife. That application was filed in this court on 20 October 2002. The application was accompanied by an affidavit by the applicant and a financial statement, as the rules require. The documents had been served on the respondent.
On 2 December 2002, Federal Magistrate Mead made an order that the parties should attend a conciliation conference pursuant to section 26 of the Federal Magistrates Act. That conference was appointed for 9 April 2003.
On 2 December 2002 when the orders were made for the conference, Ms Belchamber, who appears before the court today, appeared for the wife, and one Mr Morgan appeared for the husband. At that stage no pleadings had been filed by the husband.
The orders made on 2 December included a direction that the respondent husband file and serve a response, affidavit and form 17 on or before 13 December 2002. That direction was not complied with. Indeed, on perusing the court file today it is quite clear that there are no documents on the file that have emanated from the respondent. There is no response; there is no affidavit; there is no financial statement; there is not even a notice of address of service.
On 26 March 2003 the matter came back to court. An application was made to Federal Magistrate Ryan relating to directions for valuation. Federal Magistrate Ryan ordered inter alia that the husband give access to the former matrimonial home to the valuer at 10.00am on 4 April 2003. Her Honour also ordered that the husband pay the applicant's costs of the day, which she assessed at $190, within 14 days.
A conciliation conference was appointed for 9 April. On that occasion, at the conference before Deputy Registrar Heuzenroeder, Ms Belchamber again appeared for the applicant wife and Mr Morgan appeared for the respondent husband.
On the conciliation conference report, which is on the court file, the deputy registrar noted that a conciliation conference did not proceed because of the absence of the husband. The report says:
No attendance by husband and valuation not obtained.
Proceedings were adjourned until today, 23 April, at 9.30am. The deputy registrar noted:
Question of the wife and husband's costs of today be adjourned to the FM –
meaning "federal magistrate" –
23 April 2003 at 9.30am.
The matter was called on at 9.30am or shortly thereafter this morning. Ms Belchamber appeared for the applicant wife. There was no appearance by or on behalf of the respondent husband. Indeed, I note from my own notes of these proceedings this morning that the respondent husband was called three times outside the courtroom at 9.55am and did not appear. I stood the matter down in the list and I directed the applicant's solicitor to telephone Mr Morgan, apparently acting for the respondent, and inquire as to whether he had instructions to attend today.
When the matter came back before me, Ms Belchamber advised the court that she had spoken to Mr Morgan, who indicated that he was not attending the court. Ms Belchamber obtained the impression from Mr Morgan that he was not aware that the proceedings were before the court today, which I would comment is somewhat surprising, noting the directions made by the deputy registrar on 9 April. Ms Belchamber informed the court that Mr Morgan had no objection to directions being made for this matter to be heard on a final basis but asked that the question of costs be put off until a later day.
I would make it clear that I will certainly be making directions to list this matter for trial, but I do not intend to put the matter of costs off until another day. I propose to deal with the matter of costs this morning.
As far as the question of this matter being heard on a final basis is concerned, I understand that this matter could be given a marking of "Not before Tuesday, 16 September", as I understand is the practice of this court, and that a matter of this nature would normally be expected to take a day or less.
I propose to make that direction. I also propose to make some directions as to the filing of documents and, indeed, the respondent, amongst other things, is to get on the record the filing and serving of a notice of address of service within seven days. I will be making other directions, but I will turn to the question of costs at this stage.
Section 117 contains the basic provision that parties to proceedings should bear their own costs, but subsection (2) makes it quite clear that if the court is of the opinion that there are circumstances that justify it in doing so, the court may make such order as to costs, whether by way of interlocutory order or otherwise, as the court considers just. I am referred to section 117 subsection (2A), which are matters relevant to the making of a costs order to which I shall have regard.
I note that I am informed that the applicant is not in receipt of a grant of assistance by way of legal aid. I have no information about the circumstances of the respondent. There are two matters which I consider to be particularly relevant. One is that set out in paragraph

(c) of subsection 117(2A), which says:
The conduct of the parties to the parties 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.
Also paragraph (d):
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.
It is quite clear that, despite the directions made by Federal Magistrate Mead on 2 December and by Federal Magistrate Ryan on 26 March, the respondent has effectively done nothing to make these proceedings go anywhere towards resolution. Notwithstanding the fact that he was required to serve his response and supporting documents by 13 December, there are no documents at all on the court file.
I note, as I said, the orders made by Federal Magistrate Ryan on 26 March. I have before me an affidavit affirmed by the applicant on 14 April in which she sets out a conversation by telephone that she had with the respondent on 24 March. She sets out in paragraph 3 that her valuer, Mr B, had been unable to complete the valuation of the former matrimonial home and she says:
I am informed and verily believe that he attended at the former matrimonial home in accordance with the orders of this honourable court on April the 4th 2003 for that purpose but the husband was not in attendance.
The valuation has not been done. The husband is not here. His legal representative is not here. What happened on 9 April was that a conciliation conference was completely wasted. Conciliation conferences are a most important part of the court process, and the Federal Magistrates Court, under section 26 of the Federal Magistrates Act, makes great use of them. When properly conducted, they are a valuable resource for parties and bring about many settlements, and in other cases bring about a partial resolution of a matter, or a substantial narrowing of the issues. They are of no value when one party neither files material nor chooses to attend.
The conferences are a scarce resource and it is most regrettable that the time was wasted when it may well have been that some other parties, who would have been in a position to present their material properly, may have been able to take advantage of that time before the deputy registrar.
I am in no doubt that this is a matter where the costs that have been wasted should be met by the respondent. I am going to list this matter for trial. I am going to make directions that the respondent get his material on, but the respondent cannot adopt an attitude of just not attending and not filing material. These proceedings are not going to go away.
I am of the view that I should make an order for costs not only for the waste of time of the conciliation conference but also for the proceedings before the court today. The amounts sought by the applicant to my mind are modest and well within the range that I would be prepared to order in the circumstances.
I propose to make an order that the respondent pay the applicant's costs of 9 April in the sum of $200 and of today's proceedings in the sum of $190. Accordingly, I make the following orders.
I require a transcript of my reasons for this decision and I advise that a copy of these orders will be forwarded out to the parties or their legal advisers, for those who are on the record, within the next few days.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 10 June 2003