Medlon and Medlon (No 2)
[2015] FamCAFC 16
•12 February 2015
FAMILY COURT OF AUSTRALIA
| MEDLON & MEDLON (NO. 2) | [2015] FamCAFC 16 |
| FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the wife seeks that the husband’s senior counsel and solicitor be restrained from further acting in this matter and that publication of the judgments in this matter be suppressed – Where the application of the wife seeking reinstatement of her appeal together with all outstanding costs applications are listed for hearing – Where the wife has filed a further Notice of Appeal seeking that the appeal judge disqualify himself – Where that appeal may prevent the hearing of the wife’s application for reinstatement – Judgment reserved. FAMILY LAW – APPEAL – ORAL APPLICATION FOR COSTS – INDEMNITY – Where the husband seeks his costs of and incidental to the wife’s application for injunctions on an indemnity basis – Where the wife opposes any order for costs – Judgment reserved. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Medlon |
| RESPONDENT: | Mr Medlon |
| FILE NUMBER: | ADC | 491 | of | 2010 |
| APPEAL NUMBER: | SOA | 88 | of | 2012 |
| DATE DELIVERED: | 12 February 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 February 2015 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 October 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1479 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Nelson QC with Mr Grant |
| SOLICITOR FOR THE RESPONDENT: | Adelaide Family Law |
Orders
Paragraph 2 in the application in an appeal filed by the wife on 5 July 2013 seeking an order that the husband’s counsel, Ms Frances Nelson QC, be restrained and an injunction be granted restraining her from further acting in this matter be dismissed.
Paragraph 3 in the application in an appeal filed by the wife on 5 July 2013 seeking an order that the husband’s solicitor, Ms Joanne Collie, be restrained and an injunction be granted restraining her from further acting in this matter be dismissed.
Judgment be reserved in relation to paragraphs 2 and 3 in the application in an appeal filed by the wife on 14 August 2013 wherein the wife seeks orders for the suppression of publication of this matter until further order and that all published material to date be uplifted from the Family Court of Australia website.
Judgment be reserved in relation to the oral application made on behalf of the husband today seeking an order for costs against the wife on an indemnity basis.
The application in an appeal filed by the wife on 25 March 2013 seeking an order reinstating her appeal, together with all outstanding costs applications in this matter, be listed for hearing before the Honourable Justice Strickland commencing at 2:15pm (ACDST) on Friday 27 March 2015 with a time estimate of half a day.
In the event that the wife is unable to attend the hearing on 27 March 2015 in person then leave is granted for her to attend that hearing by way of telephone link.
If the wife determines to file a further affidavit in support of her application in an appeal filed on 25 March 2013 then such affidavit is to be filed and served by the close of business on Friday 13 March 2015.
In the event that the husband wishes to file an affidavit in response either to the affidavit filed by the wife in support of her application in an appeal filed on
25 March 2013, or in response to any further affidavit the wife files, then such affidavit in response is to be filed and served by the close of business on Wednesday 25 March 2015, such service to be effected by way of email to the wife’s email address.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Medlon & Medlon (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 88 of 2012
File Number: ADC 491 of 2010
| Ms Medlon |
Applicant
And
| Mr Medlon |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
There were a number of applications listed today arising out of applications in an appeal filed by Ms Medlon (“the wife”) on 5 July 2013 and 14 August 2013. I have heard those applications and I do not need to repeat what I have said about them.
There has also been an oral application for costs made on behalf of Mr Medlon (“the husband”) in relation to the applications that I have heard today arising out of the application in an appeal filed by the wife on 5 July 2013.
In relation to that costs application I have reserved my judgment. I did that because, as has been identified, there are other outstanding costs applications that have arisen during the conduct of these proceedings. Unfortunately I am not in a positon to identify precisely those outstanding costs applications, and nor is Ms Nelson QC, senior counsel for the husband. Thus, what I have determined to do is to first, identify those outstanding costs applications in due course, and secondly, to then hear and determine them on the next occasion when this matter is before the court, and I will come to that in a moment. I propose to do that because I do not want to deal with the issue of costs piece meal; it is far more appropriate to deal with all costs applications at the one time, and that is my intention. To that end I have requested Ms Nelson’s instructing solicitor to identify, from his client’s perspective, the outstanding costs applications and to provide a memo by way of email, if that is appropriate, to my associate via the Southern Appeal Registrar, and to the wife. In the meantime I will also look at the file and identify as best I can the outstanding costs applications to be dealt with on the next hearing date.
In terms of the next hearing date, given that I have now dealt with the applications for injunctions made by the wife, and contained in the application in an appeal filed by her on 5 July 2013, and given also that the issue of my disqualification has been determined, and by that I mean the appeal against my refusal to disqualify myself has been concluded, subject to one other issue that I will mention in a moment, there is no impediment to now proceeding with the wife’s application filed on 25 March 2013 to reinstate her appeal against orders made by Judge Kelly. I propose to now set the date for that hearing to take place, and to repeat, the outstanding costs applications will be heard by me on that date as well.
The other issue is this. At the commencement of the hearing today the wife indicated that she had filed an appeal against Order 1 made by me on
20 January 2015. That order as it reads was “[t]he oral application of the wife seeking that the Honourable Justice Strickland be disqualified from further hearing this matter be dismissed”. The wife has said that the aspect that she wishes to challenge in terms of that order is my refusal to vary my orders for the issue of subpoenas that the wife was pursuing, in the context of her application to restrain Ms Nelson from continuing to act for the husband.
As should be obvious, until the wife mentioned this, I was not aware of any such appeal, and nor was Ms Nelson. Apparently the appeal was only filed today. That circumstance did not prevent me from continuing to hear and determine the matters that I originally set for today. However, it may be, depending upon what is in that appeal, that the application to reinstate made by the wife cannot proceed until that appeal is determined. I would not want that to be the case, but the wife is the one who, of course, has filed the appeal, and she must realise again that it may be that that will prevent her application to reinstate her appeal against the orders of Judge Kelly proceeding, as the previous appeal did.
That is a matter for the wife to take on board, but equally I will have to consider my position once I am provided with the relevant documents. I cannot predict what will happen in relation to that just at the moment, but to repeat, it may prevent the application for reinstatement proceeding. Despite that, I propose to at this stage at least, set a date for the hearing of that application, and then deal with appeal when and if it is received.
In terms of the date. I have identified with Ms Nelson and the wife the afternoon of Friday 27 March 2015 as a convenient date to hear the reinstatement application, and also the outstanding applications for costs.
I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
12 February 2015.
Associate:
Date: 17 February 2015
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