Mitty and Mitty

[2009] FamCA 381

FAMILY COURT OF AUSTRALIA

MITTY & MITTY [2009] FamCA 381

FAMILY LAW – PRACTICE AND PROCEDURE – PENDING APPLICATIONS FOR REVIEW AND IN RELATION TO OTHER MATTERS – failure of the applicant to appear in person or to be legally represented – no explanation given – no communication received from the applicant
FAMILY LAW – COSTS – exercise of discretion to make an Order

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Mr Mitty

RESPONDENT: Ms Mitty

FILE NUMBER: SYC 8326 of 2007

DATE DELIVERED: 11 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 11 May 2009

REPRESENTATION

APPLICANT IN PERSON: No appearance

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. That the Application for Review, filed by the husband on 18 September 2008 together with his Application in a Case and Application Contravention which may have been filed in or about early February 2009 are dismissed.

2. That the husband pay the wife’s costs of and incidental to the proceedings listed for hearing today in the sum of $1540.00 payable on or before 5:00 pm 8 June 2009.

3. That liberty is granted to apply to set aside, suspend or vary all or any of the Orders made this day upon seven (7) days written notice being given to the Court and to the other party.

4. That the solicitor for the wife cause sealed copies of the Orders made this day to be served on the husband by pre-paid registered post to his last known address and that an affidavit of compliance with these Orders be filed by the solicitor for the wife within seven (7) days of such compliance taking place.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8326 of 2007

MR MITTY

Applicant

And

MS MITTY

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings an application had been made by the husband for review of orders made on 12 March 2008.  His Application for Review was filed 18 September 2008 pursuant to leave granted on 17 September 2008.

2. On 3 February 2009 Orders were made by Fowler J restraining the husband from filing any document without leave of the Docket Registrar or Judge in whose docket these proceedings may have been included.

3. The matter was called today on a number of occasions by my court officer, namely at approximately 10:15 am and at subsequent intervals.

4. There was no appearance by or for the husband at the time when I commenced hearing the proceedings which was at approximately 10:50 am.

5. So far as I am aware, no correspondence has been received from the husband explaining his non appearance today.   No medical certificate was forwarded by him or on his behalf as he had apparently done on previous occasions when this matter was listed before Fowler J.

6. Consequently, I will proceed to hear and determine the proceedings before me.

The applications of the husband

1. I was informed by the solicitor for the wife that the matters before me included the husband’s Application for Review filed 18 September 2008, the husband’s Application in a Case which may have been filed in or about the end of January or early February 2009 and a Contravention Application which may have been filed in recent weeks.  In relation to the two last mentioned applications, the solicitor for the wife informed me that copies of those applications served at her firm do not disclose any filing date.

2. Having regard to the limited material before me, the non-appearance by the husband or a lawyer on his behalf and the lack of any communication from him to my Associate or the case coordinating officer or any other person in the Registry so far as I am aware explaining his non-appearance, I will proceed to determine the proceedings.

Conclusion

1. I have determined to dismiss the husband’s Application for Review, his Application in a Case and the Contravention Application to which I have made earlier reference.  My reasons are as follows.

2. The husband has failed to appear to prosecute his Application for Review and there is no explanation given for his lack of appearance.

3. In relation to his Application in a Case and the Contravention Application to which I have referred, prima facie those documents appear to have been filed in breach of the injunction granted on 3 February 2009 in that leave had not been granted by a Docket Registrar for such applications to be filed.

4. I have not made reference to the Judge in whose docket these proceedings may be listed, given that as yet, that internal procedure has not taken place.

Oral application for costs

1. An order for costs has been sought by the solicitor for the wife in the sum of $1,540.00 being solicitor/client costs, representing three hours preparation involving perusal of a large quantity of documents and analysing those documents as well as court attendance for one hour.

2. I consider that the costs so incurred are reasonable on the limited material before me.  The wife was entitled to be represented by her solicitor.  The solicitor, as an officer of the Court, has an obligation to prepare the matter appropriately on behalf of her client in fulfilling her obligations to the client to conduct her case to the best of her ability, as well as her obligations to the Court to be fully prepared.

3. I do not have any other evidence before me of other matters which may be relevant under s 117(2A).  However, given that the husband has failed to appear in person or to be represented without any explanation at all, those circumstances to which I have referred, together with his lack of appearance, represent both a circumstance which may make a costs order appropriate, and are also matters to which I attach weight for the purpose of exercising my discretion to make the order.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  14 May 2009