Leda and Kouros (No. 2)

[2017] FamCA 971

FAMILY COURT OF AUSTRALIA

LEDA & KOUROS (NO. 2) [2017] FamCA 971

FAMILY LAW – PRACTICE AND PROCEDURE – matter adjourned part heard – the respondent to be in personal attendance at the adjourned hearing – in the event the respondent fails to attend the applicant be at liberty to apply to have the respondent’s response struck out and proceed on an undefended basis – the costs of the applicant thrown away be fixed and question of payment adjourned.

Family Law Act 1975 (Cth)

APPLICANT: Ms Leda

RESPONDENT: Mr Kouros

FILE NUMBER: MLC 1450 of 2016

DATE DELIVERED: 2 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 November 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 10.00am on 27 November 2017 before Her Honour Justice Johns.

2. That the respondent be in personal attendance at the adjourned hearing.

3. That in the event of the respondent’s failure to so attend, the applicant be at liberty to apply to have the respondent’s Response to Initiating Application struck-out and proceed on an undefended basis.

4. That the costs of the applicant of this day being thrown away be fixed in the sum of $5,000 and any question of payment thereof be reserved to the adjourned date.

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 (No. 2) 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 again today, it being the third listed day of the final hearing of the matter in respect of the parties’ competing applications for the alteration of their property interests.  The matter was adjourned by me to this day on the second day of the hearing, being 31 October 2017, as a result of the non-attendance of the respondent at Court that day.

2. On the morning of 31 October 2017, the Court was informed by the respondent’s counsel that the respondent was unwell, that he had attended C Medical Centre emergency department for assessment and treatment.  As a result of that information, on 31 October 2017 I made orders adjourning the matter part heard to this day.  I made further orders requiring the respondent to provide to the Court at the adjourned hearing a medical report setting out the reasons and basis for the respondent’s non-attendance at Court, including a report as to any symptoms as presented, diagnosis, treatment given, and prognosis, and that the report, if practicable be affixed to an affidavit of the treating medical practitioner.  I otherwise reserved the applicant’s costs thrown away of that hearing.

3. Pursuant to those orders, today I have granted leave for the filing of two affidavits sworn on behalf of the respondent, they being the affidavits of Ms Natalie Livaditis, an affidavit sworn 1 November 2017, and an affidavit of Mr George Livaditis, sworn this day.  Those affidavits detail the efforts of the solicitors engaged on behalf of the respondent to obtain the medical reports as envisaged in my orders of 31 October 2017.  Those affidavits detail the circumstances of the respondent’s attendance at C Medical Centre on 31 October 2017.

4. That day, the respondent attended upon a Dr D in the emergency department.  Dr D has provided a medical certificate confirming firstly that the respondent is suffering from a medical condition and will be unfit for work/school from 31 October 2017 to 2 November 2017 inclusive. 

5. There is a typed, unsigned report of Dr D, which is Annexure NPL-5 to the affidavit of Ms Livaditis, sworn 1 November 2017.  That report records the symptoms about which the respondent was complaining upon his presentation at the emergency department.  He was noted as complaining of multiple episodes of central chest pain with associated shortness of breath, which started at 11pm the night prior.  This initial onset of chest pain reportedly lasted 10 minutes before self-resolving following self-medicating with Aspirin, and was associated with nausea and one small vomit.

6. In the final paragraph of that report, Dr D records the investigations and management of the respondent.  In conclusion, Dr D notes, and I quote:

   All investigations were within normal limits and, as such, [the respondent] was provided with simple analgesia and counselling regarding relaxation techniques.  Furthermore, [Mr Kouros] was referred to our chest pain clinic for ongoing follow-up and was provided with a medical certificate until 2/11/2017 to allow time for [Mr Kouros] to see his General Practitioner to ensure resolution of the symptoms.

7. On the face of that report, one might have anticipated the respondent would be in a position to attend Court today to enable the resumption of the final hearing.  Unfortunately, that is not the position that has presented itself this morning.  Again, the respondent has failed to attend at Court. 

8. The affidavit of Mr George Livaditis, sworn 2 November 2017, details further efforts made by him yesterday to ascertain the respondent’s position.  It is clear from that affidavit that the respondent has attended upon his general medical practitioner, a Dr E.  Mr Livaditis has attempted to obtain information from Dr E as to his assessment of the respondent’s condition.

9. Dr E has provided a medical certificate in respect of the respondent certifying that he is, and I quote:

   Extremely anxious/stressed and is unable to attend court from 31 October 2017 to 14 November 2017.

10. Little more information is provided as to the respondent’s condition and treatment.  It is clear from Mr Livaditis’ affidavit that he has endeavoured to communicate with the respondent regarding these proceedings.  At paragraph 7, he notes an attempt to communicate with the respondent on 1 November 2017, that he spoke briefly with the respondent on that occasion, but that the respondent abruptly hung up the telephone, that further calls were made to the respondent, but that those calls went to message bank.

11. At paragraph 12 of his affidavit, Mr Livaditis deposes that he again attempted to telephone the respondent this morning.  He deposes that he spoke briefly with the respondent, but was told by him that the respondent was not in a position to come to Court today, as he was under medication, and that what he was taking was “knocking him out”.  Mr Livaditis deposes that the respondent was incoherent and groggy.

12. The position of the respondent in terms of his condition and prognosis is unclear.  The limited evidence provided by the medical practitioner at the C Medical Centre would indicate that, subject to the respondent engaging in the recommended relaxation techniques to deal with and manage his stress and anxiety, there appeared to be no other symptoms that would preclude him from participating in these proceedings.  Other than the two-line medical certificate from Dr E, I have no other evidence from him that assists the Court in determining how this matter should proceed.

13. The applicant comes to Court today expecting to have her proceeding concluded.  As I have previously noted in earlier Ex Tempore Reasons for Judgment, these proceedings have been on foot since 2016.  They are proceedings that relate to an alteration of property interests with respect to a pool of assets valued at less than $2 million.  On the face of the material filed on behalf of the parties, this is a relatively straightforward financial matter.  It is a matter which is suffering unfortunate delay as a result of the respondent’s non-attendance at Court.

14. All litigants who come before the Court deal with stress and anxiety.  It is one of the aspects of litigation that encourages and drives parties towards a resolution of matters rather than pursuing litigation in a court setting.  The position of this trial now is that the applicant is currently being cross-examined by the respondent’s counsel.  Accordingly, in my mind, it is important that the proceedings reach their conclusion as soon as is practicable.

15. I note the certificate that has been provided for Dr E indicates that it is his view at this time that the respondent will be fit as and from 14 November 2017.  His certificate concludes on that date.  That being the case, what I propose to do is adjourn these proceedings part-heard to 27 November 2017 to enable them to be finalised.

16. I have shifted other trials to accommodate this matter.  Other litigants, who have waited their turn in the queue, are being inconvenienced as a result of what has occurred in this matter this week.  From the Court’s perspective, that is a most unsatisfactory outcome.  Nonetheless, it is important that this matter be concluded without further delay.  I am further going to order that the respondent personally attend at the adjourned hearing.

17. I am asked to make an order that, in the event of the respondent’s failure to attend that the applicant have liberty to apply to have the respondent’s Response to Initiating Application struck out so that the matter can proceed on an undefended basis.  Having regard to the history which I have recounted, I am satisfied that that is an appropriate order in the circumstances of the case.  Further, I am asked to order that the applicant’s costs of this day be fixed in the sum of $5,000 and the question of payment be reserved to the adjourned date.  Again, I consider that to be an appropriate order, given the circumstances of the case.

18. I note that the respondent’s counsel has communicated with the respondent regarding the proposed orders.  He was not instructed to make any submission against the orders as sought on behalf of the applicant.  That being the case, I will make orders in the terms of the minute that has been prepared.  That minute will be marked with the letter A.  It will remain on the Court file.  The orders will be prepared by the Court, and I will make a further order that my Reasons for Judgment be transcribed and remain on the Court file.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 November 2017.

Associate: 

Date:  2 November 2017