Kanelos and Kanelos and Ors
[2017] FamCA 1026
•13 November 2017
FAMILY COURT OF AUSTRALIA
| KANELOS & KANELOS AND ORS | [2017] FamCA 1026 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband, second and third respondents failed to appear – Where the wife made an application for the proceedings to continue despite the absence of those parties – Consideration of fairness – Court finds that the proceedings should continue despite the absence of the husband, second and third respondents. |
Family Law Rules 2004 (Cth) r 15.41
Woolley v Grace Worldwide (Australia) Pty Ltd [2015] QCAT 461
| APPLICANT: | Ms Kanelos |
| RESPONDENT: | Mr Kanelos |
SECOND RESPONDENT: | Mr T Kanelos |
| THIRD RESPONDENT: | Ms U Kanelos |
| INTERVENOR: | Mr Sellers as the Trustee In Bankruptcy |
| FILE NUMBER: | SYC | 6320 | of | 2013 |
| DATE DELIVERED: | 13 November 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 13 November 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
No appearance for the Respondent
No appearance for the Second Respondent
No appearance for the Third Respondent
| COUNSEL FOR THE INTERVENOR: | Mr Wilkinson |
| SOLICITOR FOR THE INTERVENOR: | Brown Wright Stein Lawyers |
Orders
THE COURT ORDERS THAT:
That the hearing continue despite the absence of the Respondent, the Second Respondent and the Third Respondent.
The Intervenor representing Mr Sellers as Trustee in Bankruptcy is excused from attending the final hearing.
The third party creditor Z Holdings is excused from further attendance at the final hearing.
AND THE COURT ORDERS BY CONSENT THAT:
On or before 9:00am Thursday, 15 November 2017 Z Holdings Pty Ltd ("The Company") will comply with the Subpoena.
On or before 4:00pm Monday, 13 November 2017, The Company be provided with paragraphs of the Wife's Affidavit referrable to The Company.
On or before 4:00pm 1 December 2017 The Company file any evidence upon which it wishes to rely.
On or before 4:00pm 6 December 2017 the Wife and The Company provide notice as to whether any party is required for cross-examination.
If no person is required for cross-examination then the Wife and The Company shall file written submissions by 15 December 2017.
If cross-examination is required the Wife and The Company shall send a joint letter to the Judge's Associate to relist the matter.
The parties have liberty to relist the matter.
AND THE COURT NOTES THAT:
A.The matter was called three times outside of Court today and there was no appearance for the Respondent, the Second Respondent or the Third Respondent.
B.Orders 4 to 10 herein were made with the consent of the Applicant wife and Z Holdings, and on that basis Z Holdings made an application to be excused from further attendance at the final hearing.
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 Kanelos & Kanelos and Ors 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 SYDNEY |
FILE NUMBER: SYC 6320 of 2013
| Ms Kanelos |
Applicant
And
| Mr Kanelos |
Respondent
And
Mr T Kanelos
Second Respondent
And
Ms U Kanelos
Third Respondent
And
Mr Sellers as the Trustee in Bankruptcy
Intervenor
EX TEMPORE REASONS FOR JUDGMENT
In this matter, I note that there are appearances by Ms Christie of counsel on behalf of the applicant wife in these proceedings. There is also an appearance by Mr Wilkinson on behalf of Mr Sellers as trustee in bankruptcy of the Estate of the husband. There is also an appearance by Mr Saab on behalf of Z Holdings Pty Ltd, who have received notice of these proceedings as a result of receiving notice from the solicitors for the wife that their interest may be potentially impacted by an order sought by the wife in respect to a caveat on the former matrimonial home. I have requested that the matter be called three times outside the body of the Court and there is no appearance by the husband, nor is there any appearance by the second and third respondents, Mr T Kanelos or Ms U Kanelos.
In noting those facts, I will adopt the unusual course of inviting Ms Christie to tender into evidence correspondence which has been sent directly to my Chambers.
One is an email from Mr Kanelos dated 6 November 2017 in which he states:
I will not personally be attending the final hearing for the same reasons outlined in the hearing of 10 May 2017.
In that email, Mr Kanelos also indicated that:
My mother and father also will not be attending.
Further, within the body of the email he states:
My father outlined the reasons in his affidavit,[1] mainly health related and the health of my mother. My mother is immobilised at home and totally dependent on my father for full time care due to her current lower leg fracture and associated complications after a fall requiring surgery. She is only able to mobilise a few metres using a frame walker.
[1] Affidavit of Mr T Kanelos dated 6 November 2017.
I also note an email from my Associate to the parties on 7 November 2017, wherein my Chambers advised the parties that any issues of controversy in this matter must be raised in open Court and that all applications may be made on the morning of the hearing date. I also note that my Chambers has been copied into an email from Watts McCray Lawyers, attaching a letter dated 7 November 2017, wherein Watts McCray Lawyers put the husband on notice that if he did not attend the final hearing, listed to commence for five days commencing 13 November 2017:
we will ask that his Honour not read or consider any evidence you may wish to rely upon. We further put you on notice that if you do not attend the Final Hearing, the Family Court may make the orders our client seeks, without further notice to you.
I have also been referred to an email received from Mr Kanelos dated 10 November 2017 in which he states:
This is a follow up email for the second and third respondent court attendance. I write in this regard as to attendance of 2nd and 3rd respondents in the final hearing.
…
my father is a frail man with age and medical related memory and concentration difficulties.
He further states in the body of the email that the third respondent has had:
… multiple complications over the past 12 weeks. She has deteriorated. She was taken to [J] Hospital on the weekend where blood tests revealed a possible blood clot. She was admitted yesterday into [AA] Hospital under the advisement from Associate Professor [BB], where she will be worked up by Endocrinologist/Physician (Professor [BB]), orthopaedic surgeon and plastic surgeon.
Then, today, that is, Monday, 13 November 2017, at 8.44 am, my Chambers received a further email from Mr Kanelos, wherein he said:
My father asked me to send this to you.
The document attached was a document purporting to be a medical certificate from Dr CC, dated 13 November 2017. It states, in respect of Mr S Kanelos:
In my opinion, he will be unfit to attend court 13/11/17 to 17/11/17 inclusive. due to multiple medical illnesses, in particular, a current infective exacerbation of asthma.
I further refer to an email sent by my Associate to the parties at 9.28am this morning, wherein reference was made to the email from Mr Kanelos attaching the medical certificate in relation to Mr S Kanelos, and stating:
… without the consent of all parties, His Honour is unable to accept into evidence documentation that is provided to his Chambers rather than by way of an application made in open Court.
Accordingly, if you wish the Court have regard to the medical certificate, it will be necessary for you to attend Court or for [Mr S Kanelos] to arrange a representative to be in attendance at Court on his behalf to make an appropriate application.
At the invitation of the Court, counsel for the wife has tendered the correspondence to which I have referred, on the basis that it is evidence of communication relating to the subject matter of each of the respective emails, as opposed to the assertions of fact contained in those emails.
I note in this matter the wife has filed an affidavit sworn on 17 October 2017 and filed on 18 October 2017. In the course of that affidavit, the wife refers to a number of instances where proceedings involving the parties have been adjourned, and several instances where there have been non-appearances on behalf of the husband. In any proceedings, the Court is obliged to act fairly in all the circumstances. Fairness must be considered not only from the perspective of the party or parties who fail to appear, but also from the perspective of all other parties.
All parties are expected to comply with directions regarding the orderly conduct of proceedings before this Court, including, most significantly, appearing at such times as the matter is listed for hearing in order to prosecute their case. In circumstances where a party is unable to personally appear, as a result of illness or otherwise, there are mechanisms in the Family Law Rules 2004 (Cth) (“the Rules”) for that party to be represented and an appropriate application made recognising the reason for their non-appearance, and, if necessary, making other arrangements, such as facilitating communication to the Court and/or through their legal representative by way of electronic means. No such applications have been made in this case.
In circumstances where a party applies for relief, they are entitled to have the relief dealt with as expeditiously as possible. This is particularly the case in matters involving children. This matter concerns both an application for parenting orders and orders regarding the adjustment of property. The Court considering the non-attendance of a party due to illness is entitled to require that party to provide appropriate evidence regarding the nature of their illness and the extent of their incapacity, and, in that respect, I refer to Woolley v Grace Worldwide (Australia) Pty Ltd [2015] QCAT 461.
In this case, aside from assertions contained in correspondence from the father and in respect to the affidavit of Mr S Kanelos sworn and filed on 6 November 2017, as well as a medical certificate from Dr CC, there has been no direct evidence by way of what could be described as a treating medical practitioner’s report, consistent with rule 15.41 of the Rules. In that respect, I note, with respect to him, the report of Dr CC is extremely brief as to the nature of the reasons for the inability of Mr S Kanelos to attend. In any event, as I have indicated, the parties have clearly been on notice regarding these proceedings, the listing of this matter being confirmed in orders made in May 2017. They have been placed on notice that in the absence of any appearance by them personally or on their behalf, that the matter may proceed and that orders may be made in their absence.
In the circumstances of this matter, which I have outlined, I am satisfied that the proceedings should continue, despite the absence of the first respondent and the second and third respondent.
I also note that Mr Wilkinson has appeared on behalf of Mr Sellers, who is the trustee of the bankrupt estate of Mr Kanelos. Mr Wilkinson has, on behalf of Mr Sellers, indicated that Mr Sellers neither consents nor opposes any orders that may be made by the Court, save in respect of costs. Mr Wilkinson has requested the Court receive into evidence a copy of his affidavit sworn on 7 November 2017. Counsel for the wife has indicated she has no objection to the Court receiving that into evidence.
For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 13 November 2017.
Associate:
Date: 15 December 2017
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