DJ and CJ (No.2)
[2003] FMCAfam 339
•27 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DJ & CJ (No. 2) | [2003] FMCAfam 339 |
| FAMILY LAW – PROPERTY SETTLEMENT – Section 79 proceedings – interim property settlement – compelling circumstances. COSTS – Circumstances justifying order. PRACTICE AND PROCEDURE – Adjournment – medical certificate supplied – whether self executing order should be made. Family Law Act 1975, ss.79; 117 Harris (1993) 16 Fam LR 379; FLC 92-378 |
| Applicant: | DJ |
| Respondent: | CJ |
| File No: | PAM 4434 of 2002 |
| Delivered on: | 27 June 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 24 June 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Van Aalst |
| Solicitors for the Applicant: | Lawyers Central |
| Counsel for the Respondent: | Mr Kearney |
| Solicitors for the Respondent: | Matthews Dooley & Gibson |
ORDERS
The Applicants to pay the Respondent's costs thrown away in the sum of $6502.50.
The Applicant and the Respondent are to do all things and sign all documents necessary to instruct Messrs Jonathan Abbott and Associates, Solicitors, to pay to the Respondent from the controlled moneys account held on behalf of the parties:
(a)the sum of $20,000 by way of interim property settlement
(b)the said amount of $6502.50 in accordance with Order 1.
The amount payable in accordance with Order 1 above is to be the sole responsibility of the Applicant and treated as an interim distribution to him as part of his entitlements on any alteration of property interests pursuant to the Family Law Act.
The Applicants to comply with Rule 24.04 by serving on the Respondent copies of the following documents by Friday, 31 October 2003:
(a)his three most recent taxation returns.
(b)his three most recent taxation assessments.
(c)his most recent members account statement and financial statements from any superannuation fund of which he is a member.
(d)his last four Business Activity Statements lodged, if any.
(e)the three most recent financial statements and the last four Business Activity Statements of any partnership, trust or company other than the public company in which he has an interest.
The Applicant and the Respondent are to exchange market appraisals or valuations or any asset in dispute no later than 5.00pm on 31 October 2003.
The Applicant is to advise the solicitors for the Respondent in writing of the name and address and qualifications of every medical practitioner and/or health professional on whose evidence he seeks to rely for final hearing by Friday 3 October 2003.
The Applicant is to attend upon such medical practitioners and other health professionals as may be nominated by the solicitors for the Respondent for the purpose of preparation of reports for use by the Respondent in these proceedings and the Applicant shall attend at such times and places as may be nominated by the Respondent's solicitors for that purpose.
On or before Friday, 31 October 2003, the Applicant is to cause to be filed and served:
(a)any amended application.
(b)all affidavit material upon which he intends to rely for the final hearing including all expert evidence.
(c)an updated financial statement.
The Application is adjourned to Monday, 10 November 2003, for further mention at 9.30am.
Liberty to apply on seven days' notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4434 of 2002
| DJ |
Applicant
And
| CJ |
Respondent
REASONS FOR JUDGMENT
Application
The proceedings before the Court today arise in the course of an application by the Applicant husband for a settlement of property pursuant to section 79 of the Family Law Act. The particular matter upon which I am to make a decision today relates to an application by the Applicant to adjourn the final hearing of this application which had been listed on Tuesday, 24 June.
After a considerable degree of argument from Mr Van Aalst for the Applicant and Mr Michael Kearney, of counsel, for the Respondent,
I indicated that I would grant the adjournment of the proceedings but that I would reserve my decision as to the terms upon which that adjournment would be granted. I also did not indicate at that stage for what period of time I would allow an adjournment.
The Respondent wife had opposed the adjournment. Her counsel submitted a minute of orders setting out orders which would be sought if I did, in fact, agree to an adjournment. Those orders that are proposed were that the wife should receive a sum of $70,000 by way of a partial property settlement and an amount of costs which had been calculated according to the Federal Magistrates Court Rules in the sum of $10,687.50. It was sought that both of those amounts should be paid out of a larger sum of money held by a firm of solicitors in a controlled moneys account.
Other orders sought related to a time limit of some 14 days for the Applicant to comply with Rule 24.04 and within that period of time the Applicant to advise the Respondent's solicitors of details of medical practitioners or other health professionals upon whose evidence he sought to rely on final hearing, orders that the Applicant should attend upon medical practitioners or health professionals nominated by the wife and that before 26 September the husband should file an amended application and affidavit material that he relied on and an updated financial statement and that if he failed to comply with those orders before 26 September that his application would be struck out and the wife's amended response should proceed as an application on an undefended basis. The orders that were sought, in other words are what is described as a self-executing order.
It would be helpful at this stage to review the history of the matter before the Court. The proceedings were commenced by means of an application filed at this Registry on 19 November 2002 and returnable at 9.30am on Monday, 2 December. The application was accompanied by an affidavit of some size and a financial statement. At that stage the Applicant was represented by a solicitor from Castle Hill, a Ms Haga.
On that occasion the Respondent appeared, legally represented. She filed a Response, an Affidavit and Financial Statement.
The original application sought on an urgent basis some orders that would be described as orders for a partial property settlement. The orders that were sought involved the release of the sum of $43,548 to be applied by the Applicant in reduction of his credit card liabilities, a further sum of $100,000 to the husband by way of partial property settlement and the sum of $50,000 to the wife by way of partial property settlement. There was also an application that the wife pay to the husband the sum of $200 per week by way of spousal maintenance.
I heard argument on that day and in the course of the day made orders by way of, what were described at the time as partial property settlement although not in the amounts that were sought by the husband. I directed as a result of the submission by the wife's counsel that the amount sought to pay the credit card debts should be the quantum of business debts in respect of a business called Well Read Book Exchange that had been paid on the husband's credit cards, an advance of $60,000 to the husband by way of partial property settlement and the balance of $30,000 to the wife by way of a partial property settlement.
I was informed that a conciliation conference pursuant to section 26 of the Federal Magistrates Act would be of no benefit and on the basis of that I declared that I would not make such an order for a conciliation conference. I was urged to list the matter for final hearing and I allocated Thursday, 8 May and Friday 9 May. I made directions relating to the payment of a hearing fee in compliance with Rule 24.04 of the Federal Magistrates Rules which involves the parties serving on each other copies of a variety of financial documents and requiring the parties to file and serve further affidavit material by 24 April.
What then happened was that within a few days the Applicant's solicitor filed a Notice of Ceasing to Act. The Applicant forwarded a variety of documents to the Registry manager at this Registry in which in broad terms he expressed his criticisms of the decision of the Court and his dissatisfaction with the proceedings generally. It was foreshadowed that leave to appeal would be sought in respect of the decision that was made on 2 December although no appeal transpired. I did not involve myself in dealing with any of the correspondence to the Registry manager but I was aware that correspondence was being sent by the Applicant.
The matter did not proceed to a final hearing on the 8th and 9 May. The Applicant forwarded some documents, again by fax, on 11 April 2003. The documents that he forwarded were a copy of a letter to the Respondent's solicitor, Mr Christopher Kearney, and a medical certificate from one RWB, an orthopaedic surgeon; a consent form for a hospital and an admission recommendation form for Westmead Private Hospital.
The letter to Mr Kearney was marked both urgent and without prejudice but as the Applicant had forwarded a copy of that letter directly to the Court it did not appear to me that the letter was not intended to be brought to the Court's attention. Indeed, the letter did not contain any reference to any settlement negotiations whatsoever and it is difficult to see why the words "without prejudice" were appended to it.
Basically, the letter said in the second paragraph:
I now need to formally advise you, your client, senior counsel and any witnesses that on Monday, 7 April 2003 I was scheduled for a surgical procedure on 6 May 2003 and requiring some four days in hospital followed by some six weeks of intensive rehabilitation.
The letter goes on to say, rather curiously, that Mr Kearney does not need to know the details which will be fully provided to the Court only for their purposes and referred to the provisions of the Federal Privacy Act. He said:
I will be directing that the only information provided to you by the Court is that they are satisfied on ‘medical grounds’.
It would be improper and inappropriate and unlawful to proceed with any hearing matters on the upcoming dates in my absence.
Now, I am not satisfied that litigants should have private communication with the Court. The matter was brought to my attention and it was interpreted as an application for an adjournment. I was not prepared however to withhold from the Respondent's legal advisers the reasons why such an adjournment was sought as I did not think it was proper to do so.
The matter was listed on Monday, 5 May on the Court's own motion to deal with what appeared to be an application for an adjournment. On the basis of the documentation provided by the orthopaedic surgeon, Dr B, I took the view that the hearing dates of the 8th and 9th May should be vacated and on the Respondent's application adjourned the matter to Tuesday, 24 June for final hearing. That date was selected because it was outside the period of time referred to in the medical certificate provided by Dr B. His estimate was:
Booked for surgery at Westmead Private Hospital on 6/5/03 and will be in hospital for approximately one week and convalescing for one month after.
It can be said that 24 June is significantly outside that period of time.
The Applicant forwarded a variety of other documents or letters to the Registry manager. I am aware that such documents were sent. I did not consider it appropriate that I should read them.
On 24 June the matter came before the Court for final hearing. The Applicant had not complied with the directions that were made on 2 December relating to compliance with Rule 24.04 paying of a hearing fee or obtaining a waiver, or filing any further affidavit material. He did not comply with the direction made on 5 May to file and serve a notice of address for service by 13 June or pay the hearing fee again or file and serve any further affidavit material by 20 June.
The Respondent did file an amended response on 22 May which was therefore within time.
The application came before the Court on Tuesday, 24 June for final hearing. The Respondent's counsel had forwarded to the Court on 20 June a case outline document for the Respondent wife. That document was therefore before the Court. On Tuesday, 24 June, the Respondent accompanied by her solicitor and counsel attended Court. Mr Van Aalst, solicitor, accompanied by Ms Atra, solicitor, appeared for the Applicant and sought to vacate the hearing date and adjourn the proceedings. The Respondent objected most vigorously.
The Applicant sought to rely on three documents and I admitted those documents into evidence. They were a short letter dated 17 May 2003 from Dr RC, the Applicant's treating general medical practitioner. I note that document was addressed to me personally. The second document was a 27 page faxed report dated 23 June 2003 from Dr JTQ, a psychiatrist with rooms in Emu Plains. Finally, there were copies of a letter dated 11 June 2003 from the Applicant's solicitor and a draft letter dated 19June to Dr Quinn.
The letter dated 11 June to the Respondent's solicitors I note was described as a draft letter and as it was forwarded on 19 June to Dr Q I can only assume that it had not, in fact, been forwarded to the Respondent's solicitors on the date which it bore.
The objection by the Respondent's legal advisers was twofold, not only to the material itself but to the lateness of the service upon them of the material. Indeed, it was put to me that the documentation had been forwarded by fax to the Respondent's solicitors between the hours of 5.08pm and, I believe, 6.30pm the night before by which stage, of course, it was put that the Respondent had prepared her case, arranged for her legal advisers and was, in fact, ready to proceed.
The Respondent, as I said, has sought orders in the alternative if I were disposed to adjourn the proceedings. I indicated on Tuesday the 24th that I would do so and I am of the view that the medical evidence which I admitted requires me to do so. I might point out that the Applicant himself did not attend the Court.
Doctor Q, in his lengthy report, refers to a number of psychological problems. He refers to post-traumatic stress disorder to which he believes the Applicant has been subjected as a result of his service in the New South Wales police service, and incidents which he has faced. He refers to a generalised anxiety disorder as well as some symptoms consistent with post-traumatic stress disorder. Doctor Q refers also to obsessional features of the Applicant reflecting long-standing personality problems and other matters reflecting acquired traits.
He indicated there were serious hints of neurological disorder and expressed opinion as to the need for a much more detailed assessment of his cognitive impairment which will require neuro-psychological testing. He also referred to the need to obtain definitive orthopaedic assessment for future treatment and progress.
Whilst Dr Q quite properly raised or acknowledged the unsatisfactory behaviour of his Respondent, he refers to the Family Court but clearly means this Court. He said:
“I'm aware that his behaviour with respect to the Family Court matter has from the Court's point of view been unsatisfactory.”
But he went on to say that he believed that even at that time he could clearly opine that it is not deliberate or reflecting a lack of concern about the matter but simply represents how disabled he is. In short, it was Dr Q's recommendation that the Court give consideration to an adjournment of perhaps three months, which would give him time to complete the assessment and attempt treatment to stabilise his condition.
The report from Dr C refers to her treatment of him, refers to her letter of 7 March 2003 relating to his medical condition which includes amongst other things, a diagnosis of depression. She reviewed the Applicant on 14 May. Doctor C expressed the view that, and I quote:
Mr DJ is not medically fit to prepare any matters that relate to this or any other hearing and has not been able to do so from at least October 2002 following cervical, lumbar spine and knee surgery.
She went on to say:
I'm very concerned that the Court has failed to take his serious medical condition into consideration. I believe that Mr DJ requires a significant extension of time in order to prepare adequately, given that he's not been able to do so for several months.
Well, I commented on 24 June that notwithstanding Dr C's diagnosis of the Applicant's inability to prepare any matters that related to this or any other hearing from October 2002, he had been able to instruct a solicitor to commence property proceedings in November 2002, even though he himself did not attend Court on 2 December and I was informed that that was as a result of imminent surgery, but not the same surgery that I understand referred to in Dr B's letter.
The counsel for the Respondent, Mr Michael Kearney, also commented on the fact that the Applicant who lives in CH, as appears on Dr C’s letter, had been unable to attend Court in Parramatta – about 20 minutes away I would think, by car – but was apparently able to attend Dr Q's rooms on a number of occasions in the Sydney suburb of Emu Plains, a considerably greater distance. Mr Van Aalst for the Applicant, put the inability or the failure of his client to attend Court was brought about not so much by physical problems but by psychological ones.
I am satisfied that I should rely on the medical documentation and I am satisfied that I should rely on the opinion expressed by Dr Q, that a period of some three months will be required to give Dr Q time to complete the appropriate assessment and attempt treatment to stabilise his patient's condition.
This, of course, does not assist the Respondent. I am mindful of the fact that she is the Respondent. She has been brought to Court by an application by the Applicant. The application was brought when the Applicant instructed the solicitor who was acting for him at the time. Mr Kearney for the Respondent, pointed out that the Applicant's current solicitors are his third and apparently another firm of solicitors have acted before Ms Haga although they had not brought any proceedings.
I am not of the view that anything is to be gained by my conducting an investigation of the professional relationship between the Applicant and his solicitors. There are many reasons why litigants and their solicitors part company and often the reasons given will differ, according to whether one speaks to the solicitor or to the client. I was not aware that the Applicant's first solicitors, the Messrs Hamer & Hamer, had been involved as there were no pleadings filed.
I would comment that it was the Applicant's solicitor, Ms Karen Haga, prepared documents which seemed to me to be appropriate to the facts that are being put, and conducted the proceedings on 2 December in a way to which I did not take exception, nor did I see anything unusual in those proceedings at all. The reasons why she and Mr DJ parted company shortly after that time are not for me to speculate upon. The fact remains that the Applicant did not see fit to instruct any further solicitors until his current solicitors received their instructions earlier this month.
During December and through to May, the Applicant was unrepresented and, indeed, apart from sending faxes and the medical documents to the Court, the Applicant appears to have done nothing to bring his case to Court. The Applicant's current solicitors have clearly worked extremely hard in the short period of time that was available to them to do what they could to bring about the best outcome for their client, bearing in mind the months that had been lost with a hearing date approaching. With all the best will in the world, however, solicitors can only do so much in a limited time.
I look at the orders proposed by counsel for the Respondent. There is sought a partial property settlement, by way of a payment to the wife of a further sum of $70,000. There are sought costs and finally a series of directions are sought which would bring about a self-executing order.
I will deal with those matters in that order.
First of all, the question of a further partial or interim property settlement. This matter began before me on 2 December with such an application. The Applicant sought, as I said, release of the sums amounting to a little over $193,000 – $43,548 to go to pay credit card debts, $100,000 to him by way of a partial property settlement, $50,000 to the wife by way of a partial property settlement.
The orders that I made on that day were significantly less than that, but I did release $60,000 to the husband and $30,000 to the wife. On that occasion, I was guided by the decision of the Full Court of the Family Court in Harris reported in (1993) 16 Fam LR 379, Family Law Cases 92-378. I was mindful of the fact that it is open to the Court to make an interim property settlement. I found that there were compelling circumstances to release a sum of money. I noted also that the Court's power to make an interim order should be exercised conservatively and it is quite clear that the Court does not, or should not release sums of money which would thwart the legitimate expectations of a party on a final hearing. But I was satisfied, as I said, there were compelling circumstances on that occasion.
What I am now asked to do is to make a further interim distribution on the basis of what is sought by the Applicant in his application on a final basis. The orders that he seeks on a final basis are – Order 1 says that:
The parties do all acts and things necessary to instruct Jonathon Abbott & Associates, a firm of solicitors, to distribute the controlled moneys account held in trust for both parties in the following proportions:
(a)the sum of $100,000 to the wife less any interim payment made by way of partial property settlement; and
(b)the balance to the husband.
Mr Michael Kearney of counsel, submitted that in effect the Court should take the Applicant at his word. If he was always prepared to see that the wife received $100,000 less any interim payment, then the Court should make that order today. Mr Van Aalst opposed that distribution. He submitted that the husband's medical condition was a serious one, that there was not sufficient evidence on to indicate not only the severity of the husband's medical condition, but what his prognosis would be and what his expected medical costs would be.
Part of the money he said that would be held in the controlled moneys account, would need to go towards the husband's legitimate medical and rehabilitation expenses and that it would be inappropriate to distribute any further moneys to the wife at this stage. At the same time, I am mindful of the fact that the wife has an expectation and had a legitimate expectation that the matter having been listed for final hearing on the application of the husband, would in fact proceed and that at the very least, she could expect to receive the amount which the husband said that she should receive - the amount in fact the husband was submitting to the Court would be an appropriate amount for her to be paid.
I am of a view that a Court is entitled to rely on the material filed by the parties as an indication of what that party's position is. Mr Kearney of counsel submitted that it is not appropriate for a party to file documentation indicating that that is what they want but then to say "Well, maybe we will change our mind" or words to that effect.
There is a concern that the medical or the mental state perhaps of the Applicant is such that his financial position will not improve, indeed that it will deteriorate. There is a concern that a constant series of adjournments, hearing dates being vacated, will result in costs being thrown away and that the Respondent could find herself in a position where she does not receive the amounts that she is legitimately entitled to expect as a result of a final hearing, and that moneys that otherwise could go to the benefit of the parties will be expended in legal costs.
I am not prepared at this stage, however, to find that there is a compelling reason to release to the wife the sum of $70,000 which would represent $100,000 less the interim payment of $30,000 that was made on 2 December.
At the same time though, I am mindful of the fact that the husband in his interim application on 2 December, sought the release of a sum of $50,000 to the wife by way of a partial property settlement and of that $50,000 that the husband sought, the wife has only received $30,000. It would seem to me that it would – in fact I am strongly persuaded – that the interests of justice require the release of a sum of $20,000 to the wife by way of an interim property settlement, representing the difference between the $50,000 that the husband sought in his original application and $30,000 that she received. It is not the wife's fault that she came to Court expecting the matter to proceed and prepared the case to proceed only to find that the matter would not proceed through what appears to me none of her doing.
I look now at the question of costs. A submission was made on behalf of the Applicant that costs should be reserved and that the true picture would not be known until final hearing. I am certainly of the view that the Applicant has provided medical information sufficient to justify my vacating the hearing dates of 8 and 9 May and also 24 June.
I am further satisfied that albeit in an unorthodox way the Applicant provided reasonable notice to the Respondent of his inability to attend Court on 8 and 9 May because of the surgery for which he had been booked. I am further satisfied and as I was then I am still satisfied that the material provided from Dr B, the orthopaedic surgeon, would well be accepted at face value that the Applicant was indeed required to be in hospital at the time of the hearing and would require to convalesce for a month after he was released from hospital.
I see no reason to challenge what was put by Dr B and, as I am of the view that reasonable notice was given, I do not believe that I should make an order for costs covering the hearing of 8 and 9 May. The sufficiency of the notice was such that the Court was able to list the matter on 5 May of its own motion to vacate the dates later in the week.
I turn now to vacating the hearing date of 24 June. The hearing date of 24 June was selected as being outside the time estimated by Dr B for the Applicant to recover. The Applicant for whatever reason, but I am satisfied that the condition diagnosed by Dr Q would have some connection with it, did not apparently instruct his solicitors until the month of June. The solicitors were not able to obtain sufficient medical information to justify vacating a final hearing for a second time until shortly before the hearing. It is most unfortunate that the Respondent was not advised until in effect the night before.
By that stage preparation for the hearing had to be done, counsel had to be briefed and the Respondent and her legal advisers had to attend. I am of the view that the lateness of the notice is a matter that I can take into account under the provisions of sub-section (2A) of section 117. Indeed, it is paragraph (c) of sub-section (2A) which to my mind covers the situation:
The conduct of the parties to the proceedings in relation to proceedings including, without limiting, the generality of the foregoing and the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions
et cetera.
I am of the view that the Respondent should receive an order for costs to cover the preparation for the final hearing on 24 June, to cover the attendance by her solicitor and counsel on the day when the application was made for the final hearing to be vacated and I note that it took a considerable amount of time. In fact my notes indicate that whilst the matter was stood down on occasions and other matters interposed that we sat until 1.35pm, well into lunchtime, before the matter was finished for the day.
I am of the view that looking at the costs set out in Schedule 1 of the Federal Magistrates Court Rules I should allow the costs of preparation of the hearing, that I should allow a daily hearing fee by both the Respondent's solicitor and the Respondent's counsel. I propose to order that the Applicant is to pay the Respondent's costs thrown away in the sum of $6502.50.
I look now at the third stage, which is the self-executing order that is to be sought. I have had the opportunity of reading the unreported decision of the Full Court of the Family Court in the matter of Brooks and Brooks. That matter was dealt with on 29 June 2001 and was an appeal from orders by the Honourable Collier J in the Family Court.
In the course of their judgment Their Honours looked at the decisions of the High Court of Australia in Allesch and Maunz reported in (2003) CLR 172 and the decision of the Full Court of the Family Court in Tate reported in (2000) FLC 930-47.
Allesch v Maunz
dealt with a matter being dealt with in the absence of the husband after documentation had been served on him advising him of the jeopardy of his position at a time when it transpired he had recently come out of hospital after surgery. The concern was raised there about the adequate reasons for the husband not attending Court.
I note that this was a matter that arose in the Family Court after considerable delays occasioned by the husband, and indeed the reports show that an appeal was lodged in October 1995, it was not prosecuted until 1998. Obviously such delays are unconscionable.
The matter of Tate was a decision of the Full Court of the Family Court where there were considerable failures by the husband to bring the matter to Court. Indeed, it had gone from the wife's application filed in November 1995 through to a decision by the Honourable Dawe J in February 1999 to specially case manage the matter- that there was a history of non-compliance by the husband, 22 June I note was the twenty fifth time the matter had been before the Court.
On that occasion the Court did take the view that the matter would proceed eventually on an undefended basis and the Respondent was denied in fact the right of cross-examination. The Full Court made comments in firm terms about case management and the need to eliminate or greatly reduce unacceptable delays. In achieving such reduction as may be possible the cooperation of all litigants legally represented or appearing in person is essential. Thus it is fundamental that case management directions and orders of the Court in preparation for trial or settlement must be respected and obeyed.
These were matters fully in the mind of the Full Court of the Family Court in the decision in Brooks where the Honourable Collier J as a result of repeated failures again by the husband filed his material, made a self-executing order and the matter proceeded, final orders were made without the husband being heard.
Delays of this nature and persistent failures to comply with case management directions have plagued the Family Court for years and these persistent failures also plague the Federal Magistrates Court. I am mindful of the fact that the Full Court has commented on numerous occasions over a number of years over the failure by people to comply with directions and the inordinate amount of delay.
The delay of four years in bringing a matter to Court and 25 appearances is highly understandable in causing a great deal of annoyance to the Judges of the Family Court. I am not satisfied that this case has reached that stage yet. Failure by the husband to appear to my mind has been explained, even if only partially, by the medical evidence that has been procured. The failure by the husband to file material, at least until recently when his current solicitor filed the notice of address for service, is less explainable.
I am mindful of the need for parties to be granted procedural fairness and the ability to present their case. A time will almost definitely come when the matter will have to proceed, whether the Applicant files his material or appears or not. I am not of the view that the Court should wait for four years and 25 Court appearances, as in the case of Tate, before reaching that situation.
I am also mindful of the fact that the Federal Magistrates Court was established to deal with the shorter and less complex matters arising under Federal legislation and that the Family Court is therefore the Court that should deal with lengthier matters. It would follow that lengthier matters take a greater time to prepare and may take a greater time to reach the Court.
I am of the view that the time scale for hearing matters in the Federal Magistrates Court would normally be significantly less than would be required to deal with the more complex and lengthier matters that the Family Court is well-equipped to hear. It must follow that where a party consistently delays in complying with directions and bringing the matter to Court that the patience of the Federal Magistrates Court would be exhausted at an earlier date than perhaps it might be in other jurisdictions.
That being said, I am not satisfied that the stage has been reached yet that this matter should be dealt with by way of self-executing order and I believe that an order for costs in the orders that I have indicated that I will make will at this stage deal adequately with the situation.
The Applicant must be aware, however, that he must bring his application to Court and he must prosecute it within a reasonable time. He must give instructions to his solicitors and allow them to prepare the documents that they will advise him are required to bring this case to Court. Lawyers cannot deal with matters without instructions and the Applicant must be aware that this is a matter that has to be concluded.
I am not prepared to place any deadline on him within the period of time recommended for adjournment by Dr Q. Doctor Q has expressed the view that some three months is appropriate and I am of the view that I should not require the Applicant to file or serve material within that period of time.
I would, however, wish to know within not too much longer after that period of time what the Applicant was going to do and what material he was going to file. I am of the view that the medical evidence before me would enable the Court to require the Applicant to inform the Court on Monday, 10 November, as to where this matter was going and that the Applicant should comply with a variety of directions by Friday,
31 October. That indeed is a period of a little over four months, well outside the time suggested by Dr Q. The orders therefore that I make are those on the second and third pages of this decision.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 18 August 2003
0