Jeune and Jeune

[2010] FamCA 520

FAMILY COURT OF AUSTRALIA

JEUNE & JEUNE [2010] FamCA 520

FAMILY LAW – APPEAL FROM JUDICIAL REGISTRAR – Non-appearance of husband

APPLICANT: Mr Jeune

RESPONDENT: Ms Jeune

FILE NUMBER: SYC 457 of 2009

DATE DELIVERED: 8 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 8 June 2010

REPRESENTATION

SOLICITOR FOR THE RESPONDENT: Mr Fernie (Agent)

Orders

1. That the indirect telephone application of the husband for an adjournment is hereby refused.

2. That the application of the husband filed 3 May 2010 is hereby dismissed.

3. That the oral application for costs made by the wife is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 457 of 2009

MR JEUNE

Applicant

And

MS JEUNE

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by a husband from consent orders which were made by a judicial registrar on 17 March 2010.  The matter was called at about 10.15 or 10.20 this morning and has been called again only minutes ago, and it is now approximately 11.35.  The wife is represented and came here prepared to defend the proceedings.  The husband was contacted by the wife’s solicitor earlier this morning and simply said that he would come in and that it would take him approximately one hour. 

2. Later on, the solicitor had two further phone calls with the husband. They were to the effect that he was no longer coming and was trying to obtain an adjournment, but in any event, was going to bring some other proceedings, namely, contravention proceedings.  He seems to have given Mr Fernie no reason why he changed his mind about coming to the Court today.  His original reason for not being here, however, was, according to what he told Mr Fernie during the first conversation, that he thought the matter was on tomorrow.  I have had contact with our registry and been informed that the husband telephoned, asked for an adjournment, and gave no reason.

3. The husband’s appeal is from only some of the orders that were made by the Judicial Registrar.  The orders that he appealed from relate to collecting the children on days when they have football training or football commitments.  The children are two boys and a girl aged between approximately 14 and 11 years.

4. The orders that the husband has appealed from provide that if, during times when the husband is by those orders to spend time with the children, they have either football training or football matches, he is to ensure that they are able to attend that training or those matches.  The orders also are self-executing in the event that he fails to ensure that the children attend.  They provide that, in effect, if, on any occasion, the father fails to ensure that the children attend, the time that he spends time with the children shall be altered to commence, only during the football season, from after football finishes on Saturday on each alternate weekend when he would otherwise have the children.

5. I have read all of the husband’s affidavits filed in relation to his original application and his appeal by way of re-hearing.  Nothing in any of those affidavits refers to any reason why he might wish to alter the present orders he has appealed against.  In fact, there is nothing in his affidavits that refers to anything relevant to the orders that were made or the alterations he wants to make.  In those circumstances, had he attended, he would have had no affidavit evidence upon which he could rely.  His non-attendance leaves him with no affidavit evidence upon which he might rely, and there is no realistic possibility, if he is not prompted by the Court to give some relevant evidence, why he might put it before the Court.

6. As it would be unfair for the Court to favour him by telling him he has this deficit, and as he has failed to attend and has given no valid reason why he has committed that failure, I can see no reason why the matter should be allowed, at the wife’s expense because she is represented, to proceed further.  It would have been dismissed had he attended, in all probability, and his non-attendance without adequate excuse is, in my view, a reason to deal with the matter on its merits, and on its merits it cannot possibly succeed because there is no evidence in support of the two orders that the husband seeks to change in relation to football, and so I shall refuse to adjourn the matter and dismiss the husband’s application.

RECORDED  :  NOT TRANSCRIBED

1. I formally refuse the respondent mother’s application for costs on the ground that pursuant to section 117, I can see no unusual circumstances that would warrant the departure from the principal thrust of that section that parties should meet their own costs in children’s proceedings.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:     

Date:              29 June 2010