Hodge and Hodge - [2010] FamCAFC 181

FAMILY COURT OF AUSTRALIA

HODGE & HODGE

[2010] FamCAFC 181

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where the applicant is in prison and attended the hearing by tele-link – where the applicant appeared unrepresented after his counsel withdrew – application for an adjournment to allow the hearing to be conducted by video link and to enable the applicant to instruct new solicitors – where the applicant’s solicitors ceased acting abruptly and he has not had a reasonable opportunity to consider the documents – adjournment granted – adjourned hearing to be conducted by tele-link.

Family Law Rules 2004 (Cth)

APPLICANT:

Mr Hodge

RESPONDENT:

Ms Hodge

FILE NUMBER:

MLC

8545

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

26 August 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

26 August 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 June 2010

LOWER COURT MNC:

[2010] FMCAfam 551

REPRESENTATION

COUNSEL FOR THE APPLICANT

Ms Swart (granted leave to withdraw)
In person

SOLICITOR FOR THE APPLICANT

Altona Legal

COUNSEL FOR THE RESPONDENT:

Mr Hoult

SOLICITOR FOR THE RESPONDENT:

Kordell Lawyers

Orders

The Application in a Case filed by the husband on 10 August 2010 be adjourned for further hearing to 10:00am (AEST) on Wednesday 15 September 2010, such hearing to be conducted by way of telephone link between the Sydney Registry, the Melbourne Registry and [the] Prison.
The applicant have leave to file and serve any further affidavit on which he intends to rely in support of his application, such affidavit to be filed and served by close of business on 13 September 2010.
That the question of the respondent’s costs be reserved to the adjourned hearing date.

IT IS NOTED that publication of this judgment under the pseudonym Hodge & Hodge is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 54 of 2010
File Number: MLC 8545 of 2008

Mr Hodge

Applicant

And

Ms Hodge

Respondent

EX TEMPORE REASONS

The application before me today is an application filed by Mr Hodge on 10 August 2010 seeking an extension of time to file a Notice of Appeal. There are other orders sought, but I need not recite those just yet. In support of that application, there was an affidavit filed by Mr Hodge’s solicitor, Stephen Anthony Canals on the same date. Annexed to that affidavit of Mr Canals was a proposed Notice of Appeal in the event that an extension of time to appeal was granted. The respondent has responded to that application, and there is a response filed on 23 August 2010, together with an affidavit.
When the matter was called on this afternoon, Ms Swart appeared for the applicant and Mr Hoult for the respondent. Ms Swart advised me that there have been difficulties with Mr Hodge’s legal representation and she sought leave to withdraw. I granted that leave. I asked her to stay, though, in the event that I needed to clarify through her what documents Mr Hodge had with him. The reason for that is Mr Hodge is currently in prison, and he is attending this hearing by way of a telephone link. Mr Hodge now, of course, is appearing for himself, me having given leave to Ms Swart to withdraw.
Mr Hodge has sought an adjournment. Initially, he sought an adjournment because he wanted this hearing to be conducted by way of a video link, rather than a tele-link. Mr Hoult’s instructions were to oppose that, and I heard submissions about that. I then attempted to clarify with Mr Hodge what documents he had and in that exercise it became apparent that he has only yesterday and today received all of the documents that are now before me. He has had a chance to look at all of those documents, save and except the affidavit of Stephen Anthony Canals to which I have already referred.
After clarifying those issues with Mr Hodge, Mr Hodge added to his application to adjourn that he wanted time to consider that affidavit before the hearing proceeded. I heard submissions from Mr Hoult about that. Mr Hoult opposed that and it now falls to me to make a decision on the application to adjourn.
The position with the attendance of Mr Hodge is that initially, through his solicitors, he sought that he be able to attend this hearing by way of video link. I determined that that was not necessary, given the nature of the application and also because of the fact that he was represented and his solicitors or counsel would be appearing before me to run his case and pursue his application.
Now, of course, it is no longer the case that Mr Hodge is represented, and he is appearing for himself. In my view, though, there is still no reason for there to be a video link in relation to this hearing. This is not an application where there is any evidence being taken. It is a matter where there are submissions only and it is quite common in this Court, and in most courts for that matter, for matters such as this where parties are interstate, parties are in prison, as Mr Hodge is, or parties cannot get to the Court, for matters of this nature to be heard by way of a telelink. There is no reason put forward by Mr Hodge for there to be a video link. Thus, as far as I am concerned, there will be no adjournment of his application to enable a video link to be set up.
Turning to the second issue, Mr Hodge has had his now previous solicitors acting for him for some time, as I understand it, and the documents which I have just referred to, and specifically his application and the affidavit, are documents that have been prepared on his instructions. It seems to me that Mr Hodge would not be prejudiced if I stand this matter down for a short time to enable him to read the affidavit, which he says he has not seen before and I accept, so that this hearing can proceed today.
Mr Hodge though, following upon me delivering my reasons in relation to his application for an adjournment and specifically focusing on the two bases which he put forward, indicated that I was acting in an “illegal manner” and the case should be put before a “high level QC”.
The thought struck me though when I was listening to Mr Hodge make those comments that one thing, of course, that he had not raised as a ground for adjournment was that he wanted to instruct further solicitors. I have raised that now myself with Mr Hodge in the interests of justice and given the fact that he is now acting in person, and Mr Hodge has now adopted that as another basis for his adjournment.
Now, Mr Hoult still opposes the adjournment, and I can understand why. I am sympathetic to his submissions, but the fact remains that, up until this morning, Mr Hodge understood that he had lawyers acting, that he would be represented here today and that the application would proceed on that basis. It is not for me to inquire, and I do not need to know what has happened in terms of his legal representation, save and except the fact is that he is no longer represented and his counsel has been given leave to withdraw. There is also the issue of Mr Hodge receiving his documents late, and as an aside, but without knowing obviously all of the details, it concerns me greatly that a client who is due to have his hearing take place on day X only receives the documents relevant to that hearing the day before and on the very day of the hearing. Of course there may be some justifiable reason for that circumstance, and for his lawyers ceasing to act abruptly, but I also observe that the Rules, in fact, provide for seven days notice to be given, and I have not been told that Mr Hodge was given seven days notice that his solicitors would not be acting for him.
Thus, in the interests of justice, and given the circumstances that Mr Hodge has found himself in, namely to repeat, without lawyers who, up until today, were acting for him, and without having had a reasonable opportunity to consider the documents and make a decision to either continue to act in person on the basis of the documents that he has received from his lawyers or instruct other solicitors, it seems to me that it is appropriate for me to adjourn this application to enable Mr Hodge to instruct other solicitors. But that does not change my ruling in relation to the medium by which Mr Hodge will attend the hearing, whether he continues to act in person or whether he has solicitors, ultimately, who appear for him. I do not want to revisit my reasons but, to repeat, there is no basis whatsoever for this hearing to be conducted in any other way than with Mr Hodge on the telephone.
Now the next issue is that this adjournment is certainly not going to be a lengthy one. I ascertained in the course of submissions from Mr Hoult what the position is with the orders of the Federal Magistrate, and I am satisfied that there is no issue there that impacts upon the adjournment or the time it has taken to now have this matter heard. I am extremely concerned though about the prejudice caused to the respondent by this case being adjourned.
In my view, it would only take a couple of weeks for Mr Hodge to instruct alternative solicitors and to file any further documents that they might advise him to do, and thus I propose to adjourn the matter to 15 September 2010. I have put a rider on that in terms of my availability, but I will have everyone advised if there is a problem. Thus if no one hears anything, it will be on 15 September 2010.
In relation to the tele-link, the arrangement is that I will be sitting in the Sydney Registry and the tele-link will be with a court in the Melbourne Registry where counsel for the respondent will attend and in the event that Mr Hodge does instruct other solicitors, that will be where his counsel attends as well. The third link to the chain is Mr Hodge will be linked in by way of telephone at the Prison.
In the event that Mr Hodge does not instruct other solicitors and determines to proceed with this case himself, then there is no change to those arrangements in terms of the tele-links.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 August 2010.

Associate:

Date: 15 September 2010