MEADOWS & VANCE

[2011] FMCAfam 1163

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEADOWS & VANCE [2011] FMCAfam 1163

FAMILY LAW – Property – application for alteration of property interests.

PRACTICE & PROCEDURE – Where applicant did not attend court.

Family Law Act 1975, ss.90SM, 117
Federal Magistrates Court Rules 2001, Rule 13.03C

Applicant: MS MEADOWS

Respondent: MR VANCE

File Number: SYC 1466 of 2011

Judgment of: Scarlett FM

Hearing date: 19 September 2011

Date of Last Submission: 19 September 2011

Delivered at: Sydney

Delivered on: 19 September 2011

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: Leigh Johnson Lawyers

Solicitor for the Respondent: Mr Finlay

Solicitors for the Respondent: Cleary Finlay Solicitors

ORDERS

1. The Application is dismissed under the provisions of Rule 13.03C due to the non-attendance of the Applicant at Court.

2. The Applicant is to pay the Respondent’s costs in the sum of $4,350.00.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1466 of 2011

MS MEADOWS

Applicant

And

MR VANCE

Respondent

REASONS FOR JUDGMENT

Application

1. The substantive application is an Application for alteration of property interests arising out of a de facto relationship under the provisions of section 90SM of the Family Law Act 1975. The Applicant has not attended Court and the Respondent’s solicitor seeks an order dismissing the Application under the provisions of Rule 13.03C.

The History of the Litigation

1. The Applicant commenced proceedings in this Court by filing an Application, an affidavit and a financial statement on 10^th March 2011. The Application was returnable on 2^nd May 2011.

2. The Respondent filed a Response, an affidavit and a financial statement on 29^th April 2011.

3. The Application was before the Court on 2^nd May 2011 and both parties were represented by solicitors. The Applicant was granted leave to file a further affidavit and an amended Application by 2^nd June 2011 and the matter was adjourned to 6^th July 2011.  

4. No further documents have been filed by the Applicant.

5. On 27^th June 2011 the Applicant wrote directly to the Court, seeking an adjournment. She indicated that she had forwarded a copy of the letter to the Respondent’s solicitor.

6. In her letter the Applicant sought an adjournment of the matter on 6^th July 2011 for the following reasons:

   a)her solicitors had informed her that they were unable to represent her further;

   b)she was too unwell to travel to Sydney from the NSW Central Coast to attend Court on 6^th July as she was scheduled for surgery in [omitted] Hospital on 12 July 2011;

   c)she was attending to move to Cairns after her discharge from hospital; and

   d)she would instruct her family solicitor from the Cairns area to act on her behalf.

7. There was no appearance by or on behalf of the Applicant on 6^th July 2011. Mr Finlay appeared for the Respondent.

8. In light of the matters raised in the Applicant’s letter to the Court, the Application was adjourned for a period of just less than eleven weeks, to Monday 19^th September 2011. The Applicant was ordered to file a Notice of address for service within 21 days and was advised:

   The Applicant must attend Court on the next occasion. If there is no appearance then orders may be made in the Applicant’s absence.

9. The Respondent’s costs of the day were reserved.

10. The Applicant did not file a Notice of Address for Service and did not forward any further document to the Court. The solicitors who were acting for her, Leigh Johnson Lawyers, remain on the record. They have not filed a Notice of Ceasing to Act or any other document. 

11. On the adjourned date, 19^th September 2011, there was no appearance by or on behalf of the Applicant. The Respondent’s solicitor, Mr Finlay, sought an order dismissing the Application under Rule 13.03C due to the non-appearance of the Applicant.

12. Mr Finlay also tendered a copy of a Calderbank letter to the Applicant’s solicitors dated 10^th May 2011, containing an offer to settle the matter which presumably was not accepted. He sought an order for costs in favour of the Respondent. 

Conclusions

1. This is an appropriate case for the application to be dismissed due to the Applicant’s failure to attend Court or, indeed, to take any steps toward progressing the matter other than to seek an indefinite adjournment. Her solicitors appear no longer to be acting for her, and it is a matter of concern that they have not taken any steps to remove themselves from the Court record.  

2. The Respondent seeks an order for costs. Under s.117(2A) of the Act, the Court shall have regard to various relevant matters, including the parties’ financial situation and whether any party is in receipt of a grant of legal aid. The relevant factors here are:

   a)the conduct of the parties in relation to the proceedings; and

   b)the failure of a party to comply with previous orders of the Court.

3. The Applicant has not taken any steps to take this matter past the stage it was in on the first return date. It is a proper matter for an order for costs.

4. The Respondent seeks costs in the sum of $4,350.00, which includes three Court appearances. I will order accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  31 October 2011