Manotis and Manotis (deceased) and Ors
[2017] FamCAFC 260
•30 November 2017
FAMILY COURT OF AUSTRALIA
| MANOTIS & MANOTIS (DECEASED) AND ORS | [2017] FamCAFC 260 |
| FAMILY LAW – APPEAL – APPLICATION TO ADJOURN – Where the Court takes the second respondent’s email to be a request to adjourn the proceedings – Where there has been adequate notice of the hearing given to the second respondent – Where there is a history of occasions of non-attendance by the second respondent – Where the Court has proceeded with the hearing of the appeal and the hearing has now been completed – Where orders are made for the second respondent to file and serve written submissions in relation to the appeal within 60 days of the date of the orders and for the appellant, the third respondent and the fourth respondent to file and serve written submissions in reply to any submissions filed by the second respondent within 21 days of receipt of the same – Application dismissed. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Manotis |
| FIRST RESPONDENT: | Ms Manotis (Deceased) |
| SECOND RESPONDENT: | Mr Matthews |
| THIRD RESPONDENT: | Mr Bells |
| FOURTH RESPONDENT: | X Lawyers |
| FILE NUMBER: | PTW | 2347 | of | 2004 |
| APPEAL NUMBER: | WA | 13 | of | 2016 |
| DATE DELIVERED: | 30 November 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland, Murphy & Kent JJ |
| HEARING DATE: | 29 & 30 November 2017 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 26 February 2016 |
| LOWER COURT MNC: | [2016] FCWA 10 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Not applicable |
SOLICITOR FOR THE FIRST RESPONDENT: | Not applicable |
| THE SECOND RESPONDENT: | No appearance |
COUNSEL FOR THE THIRD RESPONDENT: | Mr Guerrini |
SOLICITOR FOR THE THIRD RESPONDENT: | Lawley Legal |
COUNSEL FOR THE FOURTH RESPONDENT: | Mr Dickey QC |
| SOLICITOR FOR THE FOURTH RESPONDENT: | X Lawyers |
Orders
The application by the second respondent to adjourn the appeal hearing be dismissed.
Within 60 days of the date of these orders, the second respondent file and serve written submissions in response to the Amended Notice of Appeal filed on 13 September 2016, limited to 15 pages, insofar as he is affected by that appeal.
The appellant, the third respondent and the fourth respondent file and serve written submissions in reply to any submissions filed by the second respondent within 21 days of receipt of the same.
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 Manotis & Manotis (Deceased) 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 13 of 2016
File Number: PTW 2347 of 2004
| Mr Manotis |
Appellant
And
| Ms Manotis (Deceased) And Mr Matthews And Mr Bells And X Lawyers |
Fourth Respondent
EX TEMPORE REASONS FOR JUDGMENT
Strickland J
This morning the court was advised by the Appeals Registrar that in response to an email that he had sent on Tuesday to Mr Matthews, the second respondent, inquiring as to Mr Matthew’s intention to appear at the appeal hearing listed to commence on Wednesday, 29 November, Mr Matthews provided an email which in short indicated that he was unable to attend the hearing. I will deal in a moment with the matters that he raises in that regard.
Although in that email Mr Matthews did not seek an adjournment in so many words, I take it that that is what he is in fact seeking, because he, in that email, indicated that he could be ready to attend a hearing in April next year. He advised that he wanted to fully participate in the appeal process but he was unable to because he has only been given three and a half weeks to consider the materials provided by the appellant, and he had only last week received the outlines of argument of the fourth respondent and, as he describes it, the materials filed on behalf of the third respondent, Mr Bells.
Mr Matthews further indicated that given his circumstances, namely living at a property some four hour’s drive from the Perth CBD that he would not have sufficient time to attend when his work commitments were also taken into account. In relation to the question of attending by telephone, which was an option provided by the Appeals Registrar in his earlier email, Mr Matthews indicated that that was not an option that he was able to take up because as he describes it, he would not be able to commit six hours to attend the hearing by telephone.
One matter that I will mention before I go any further, is that Mr Matthews in his email raised with the Appeals Registrar whether the Appeals Registrar was attempting to contact him on his correct telephone number, and that relates to the Appeals Registrar indicating in his email that he had made several unsuccessful attempts to telephone Mr Matthews. What Mr Matthews should appreciate is that it is his obligation to ensure that the court is aware at all times of his contact details. It is not for the court, and particularly in this instance the Appeals Registrar, to attempt to find the correct contact telephone number for Mr Matthews, but as I say, in any event the Appeals Registrar was able to alert Mr Matthews to the issue by email, and to repeat, I take Mr Matthews’s email to be a request to adjourn the proceedings.
I am not prepared to adjourn the hearing of this appeal for the following reasons.
First, I consider there has been adequate notice of the hearing given to Mr Matthews, and in that regard I note that there was a directions hearing on 24 February 2017 before the Appeals Registrar at which Mr Matthews attended by telephone link, and that was the directions hearing when the appeal was listed for a two day hearing in the week commencing 27 November 2017. I note further that at a subsequent hearing in relation to the preparation of the appeal for that hearing, namely on 20 September 2017, Mr Matthews also attended by telephone.
Secondly, there is a history to this matter and in particular a history of occasions of non-attendance by Mr Matthews, and in that regard I refer to [37] – [43] of the reasons for judgment of the trial judge, wherein it is identified that Mr Matthews failed to attend the resumed hearing before the trial judge, and failed to appear on subsequent days set for the completion of the hearing. I also note from the record that there have been other hearings before Justice Thackray and the Appeals Registrar when Mr Matthews has failed to attend.
I also note that we have proceeded with the hearing of the appeal today and the hearing has now been completed.
I propose to give Mr Matthews 60 days to provide written submissions in relation to the appeal, and of course, then give the appellant and the third and fourth respondents 21 days to reply to any written submissions received from Mr Matthews.
In the circumstances, given how the need for this order has arisen as referred to above, if Mr Matthews considers that he requires a transcript of the appeal hearing, then he can obtain that transcript himself at his convenience.
Thus, the orders that I would make are:
(1)The application by the second respondent to adjourn the appeal hearing be dismissed.
(2)Within 60 days of the date of these orders, the second respondent file and serve written submissions in response to the Amended Notice of Appeal filed on 13 September 2016, limited to 15 pages, insofar as he is affected by that appeal.
(3)The appellant, the third respondent and the fourth respondent file and serve written submissions in reply to any submissions filed by the second respondent within 21 days of receipt of the same.
Murphy J
Yes. Given the circumstances that the presiding judge has referred to, in particular those referred to in [37] – [43] of the reasons for judgment of Crisford J, I consider that the proposed order grants to Mr Matthews a very significant indulgence, however, I am persuaded that the order the presiding judge has outlined should nevertheless be made.
Kent J
I also agree.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 30 November 2017.
Associate:
Date: 17 January 2018
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