Leda and Kouros

[2017] FamCA 970

FAMILY COURT OF AUSTRALIA

LEDA & KOUROS [2017] FamCA 970

FAMILY LAW – PRACTICE AND PROCEDURE – matter to be adjourned part heard – for the respondent to provide a medical report setting out the reasons and basis for the non-attendance of the respondent at Court – applicants costs thrown away be fixed and question of payment be reserved.

Family Law Act 1975 (Cth)

APPLICANT: Ms Leda

RESPONDENT: Mr Kouros

FILE NUMBER: MLC 1450 of 2016

DATE DELIVERED: 31 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 31 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Atkinson

SOLICITOR FOR THE APPLICANT: Sayer Jones

COUNSEL FOR THE RESPONDENT: Mr B. Kiernan

SOLICITOR FOR THE RESPONDENT: Livaditis & Co.

Orders

1. That this matter be adjourned part-heard to 2 November 2017 at 11.00am before the Honourable Justice Johns.

2. That the respondent provide at the adjourned hearing a medical report setting out the reasons and basis for the non-attendance of the respondent at Court this day including as to any symptoms as presented, diagnosis, treatment given and prognosis and such report, if practicable and which is preferred by this Court, be annexed to an affidavit of the treating medical practitioner.

3. That the costs of the applicant of this day being thrown away be fixed in the sum of $5,400.00 and any question of payment thereof be reserved to the adjourned date.

4. That leave is granted to the parties to inspect the documents produced under subpoena by B Pty Ltd.

5. That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.

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 Leda & Kouros 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 MELBOURNE

FILE NUMBER: MLC 1450 of 2016

Ms Leda

Applicant

And

Mr Kouros

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Leda & Kouros comes before me today, being the second day of final hearing, in respect of the parties’ competing applications in relation to property.  The trial commenced yesterday. 

2. Initially, the matter was stood down and negotiations occurred between the parties.  The matter did not resolve.  Accordingly, the trial proceeded after lunch yesterday afternoon. 

3. At this stage, the position with the case is that the applicant is currently giving evidence and is being cross-examined by the respondent’s counsel.  The matter was adjourned to 9.15am for a continuation of that final hearing. 

4. This morning, the respondent has not attended Court.  He, through his sister, has informed his counsel that he is feeling unwell; that he was having, what is described as an anxiety attack and that he has requested his sister to attend his home to transport him to hospital for assessment and treatment. 

5. The matter has been stood down through the course of the day to enable more information to be obtained as to the respondent’s circumstances.  I have been informed now that the respondent remains at the C Medical Centre.  He has presented with symptoms, including vomiting, heart palpitations, chest pains and difficulty in breathing.  He is to undergo tests today.  The outcome of those tests is, at this stage, unknown. 

6. The situation is unfortunate from both parties’ perspective.  Obviously, there is concern as to the respondent’s health and what that means in terms of the future conduct of these proceedings.  Equally, from the applicant’s perspective, it is an unsatisfactory and disheartening turn of events.  She seeks to bring these proceedings to a conclusion; they having been on foot since 2016.  These parties have patiently awaited their turn in the queue to have a final hearing and to achieve finality in respect of their dispute.  In circumstances where little is currently known as to the respondent’s condition, what I propose to do is adjourn the proceedings, part heard, to 11am on 2 November 2017. 

7. In the circumstances, I believe it is appropriate that there be evidence produced by the respondent as to the reasons and basis for his non-attendance at Court, and evidence produced as to his presenting symptoms, diagnosis and treatment by the C Medical Centre.  Accordingly, I will make orders requiring that such information be produced to the Court at the adjourned date. 

8. The applicant asks that her costs of this day thrown away be fixed and reserved to that date.  There is no opposition to such order, albeit that the respondent’s counsel is not in a position to obtain direct instructions from his client.  There is no opposition to the reservation of those costs fixed. 

   ORDERS DELIVERED

   EXHIBIT #A ORDERS IN THE TERMS OF THE MINUTE OF PROPOSED ORDERS

9. I further note that an application has been made on behalf of the respondent for leave to issue a subpoena to produce documents directed to the C Medical Centre to enable the production of documents and files, in respect of the respondent, at the adjourned hearing on 2 November, in the event that the respondent is unable to obtain a report as anticipated in the orders that I have just made.  In all the circumstances, I consider it appropriate that leave be granted for the issue of such subpoena.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 31 October 2017.

Associate

Date:  31 October 2017