MEETA & SIBI

[2012] FamCA 304

FAMILY COURT OF AUSTRALIA

MEETA & SIBI [2012] FamCA 304

FAMILY LAW – PROPERTY – Adjournment of proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Meeta

RESPONDENT: Mr Sibi

FILE NUMBER: MLC 9309 of 2011

DATE DELIVERED: 24 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hannan

SOLICITOR FOR THE APPLICANT: Aughterson

THE RESPONDENT: No appearance

Orders

1. That all outstanding proceedings are adjourned to 2 March 2012 at 10.00am for final hearing.

2. That the applicant have leave to proceed with the final hearing on an undefended basis.

3. That the applicant file and serve an amended application and all affidavit material upon which she intends to rely by 4.00pm on 29 February 2012.

4. That the applicant serve upon the respondent by mail to his last known address as soon as practicable, a copy of these orders.

5. That the respondent pay the applicant’s costs of the day fixed in the sum of $2200.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons this day be transcribed.

3. That the applicant have leave to issue subpoenae generally.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meeta & Sibi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9309 of 2011

Ms Meeta

Applicant

And

Mr Sibi

Respondent

REASONS FOR JUDGMENT

1. This is an application that has been before the Court on two previous occasions.  It was filed by the applicant on 14 October 2011 seeking financial orders arising out of the conclusion of the de facto relationship between she and Mr Sibi, the respondent.  The respondent has been called this morning at about quarter past 10, and there has been no appearance.  That is consistent with what I have been told by Mr Hannan of counsel that at the conclusion of a parenting arrangement on the weekend, the respondent told the applicant that he was not going to come to Court.

2. The matter first came before me on 31 October 2011 at which stage it was common ground that the respondent had only recently been served, and he wanted some time to get some legal advice and to complete the various documents that would have enabled the Court to sort out the financial issues.  Accordingly, the matter was adjourned to 28 November.  On 28 November, the respondent had still not filed any material, but I gave him a further indulgence and adjourned the proceedings until today and made a specific order that he file and serve a response together with affidavit material for the purposes of the interim proceedings by 4 o’clock on 20 December.  Perhaps unsurprisingly, the respondent did not bother to do that.  That is consistent with what he told the applicant on the weekend about the fact that he was not bothering to come. 

3. One of the orders that I made in October related to the motor vehicle in the possession of the applicant.  It appears that the order specifically set out that the respondent was to pay all of the loan repayments until further order.  He does not seem to have a great regard for court orders, because he hasn’t done that either, which has precipitated the finance company commencing recovery proceedings or at least contemplating them.

4. This is a classic example of a problem in which the respondent is not complying with court orders nor is he complying with obligations which are of a proactive nature to help assist not only the other party but also the Court resolve financial issues arising out of the conclusion of the de facto relationship.  There is no dispute about the de facto relationship, because the respondent has already indicated previously from the bar table that he does not dispute what the applicant says.  The applicant is in the invidious position of now having to go to the trouble of proving her case, whereas if it had been with the assistance of the respondent, it might have been a lot easier and a lot quicker.

5. In those circumstances, Mr Hannan quite properly has asked for the matter to be adjourned today so that all of the matters can be put together for a final hearing.  A final hearing would normally be some months away in a case like this, but if the respondent does not bother to comply with court orders nor take a proactive part in the proceedings, there is no reason why the applicant should be delayed any further. 

6. There will be cost consequences for the applicant, and I see no reason why she should be significantly out of pocket as a result of all of that as well.  Those matters to some extent can be ameliorated in the final hearing.  However, today the applicant intended to pursue various things and has not been able to conclude them because of the absence and the lack of responsibility by the respondent.  She went to the trouble of having not only her lawyers organised, but her solicitors have briefed counsel, and counsel’s fee has been fixed by agreement between solicitor and counsel. 

7. In this case, I propose to set the matter down for an undefended hearing on 2 March.  The respondent will no doubt get an opportunity to read these reasons, and he will have to explain, if he attends on 2 March, why he has done what he has done, failing which the matter can proceed on an undefended basis.  I will direct that the applicant file and serve all of her affidavit material together with a precise minute of orders that she intends to seek by 29 February 2012.  I will also give her liberty to have issued subpoenas. 

8. That only leaves the question of the costs thrown away for today.  The applicant has, as I said, gone to the trouble of incurring legal fees today.  The scale of costs for normal cases would mean that the costs thrown away today would be somewhere in the vicinity of $1500.  Section 117 of the Act provides that each party in proceedings in this Court shall bear their own costs unless the Court is satisfied that there are circumstances that justify a departure from that principle, and if the Court is contemplating such a principle, the Court has to take into account the matters set out in section 117(2A).  In this case, the track record of the respondent makes it clear that he is not going to cooperate.  The applicant therefore has to prove her case, she has to go to a lot more trouble than most applicants would have to do so, and if that is not a case for a justifying the departure from the principle, I'm not sure what is.

9. I'm quite satisfied that this is a case where an order for costs should be made.  There are assets and resources between the parties.  I'm quite satisfied on what I have read in the financial statement and the previous material that the parties are not impecunious.  It is quite clear also for the purposes of section 117(2A) that the respondent has not complied with orders nor been proactive about the material that he is obliged to file.  Under those circumstances, the order for costs should be made. 

10. The applicant is seeking indemnity costs.  The categories of cases relating to indemnity costs are not closed.  The well-known decision of Sheppard J in Colgate-Palmolive sets out a number of circumstances under which an order for indemnity costs should be made, and one of those is the failure to comply with court orders, making the life of the applicant and the Court much more difficult.  Under those circumstances, this is a case where an order for indemnity costs for the day should be made.

ORDERS DELIVERED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 January 2012.

Associate: 

Date:  20 April 2012