Percival and Percival (No. 2)

[2007] FamCA 1093

FAMILY COURT OF AUSTRALIA

PERCIVAL & PERCIVAL (NO. 2) [2007] FamCA 1093

FAMILY LAW – PRACTICE AND PROCEDURE – Application by wife to review a decision of the Registrar – the proceedings were without merit and was dismissed with costs

APPLICANT: Ms Percival

RESPONDENT: Mr Percival

FILE NUMBER: MLF 3297 of 2006

DATE DELIVERED: 31 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 31 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Jenkins

SOLICITOR FOR THE RESPONDENT: Holding Redlich

Orders

1. That the Form 2 Application in a Case brought by the wife and filed on 6 July 2007 be dismissed.

2. That the wife do pay the husband’s costs of and incidental to the said application fixed in the sum of $771.60.

IT IS CERTIFIED

1. That pursuant to rule 19.51 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor acting as Counsel.

IT IS DIRECTED

(4)That the ex tempore judgment delivered this day be transcribed and when transcribed be placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3297  of 2006

MS PERCIVAL

Applicant

And

MR PERCIVAL

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Review List this day and concerns an Application in a Case brought by the wife and filed on 6 July 2007. 

2. As I understand the Application which was prepared in person by the wife, it appears to be essentially a review from a decision of Registrar Marrone made on 7 June 2007.  On that day the learned Registrar adjourned a Conciliation Conference from 7 June 2007 to 30 July 2007 and ordered the wife pay the husband's costs fixed at $96.50.

3. The Form 2 Application itself is not accompanied by an affidavit.  However, be that as it may, with the wife preparing the document in person, she annexed to her Application a two-page document headed “Review of the Registrar's Decision”.  For the purpose of these proceedings I have regard to that document which, frankly, appears to miss the point.

4. By reason of a history which I will shortly detail, the husband filed a Form 2A Response to the wife's Application on 21 August 2007.  By that Response, he sought that her application be dismissed and that she pay his costs on an indemnity basis.

5. Ms Jenkins appears this day for the husband and announced her appearance for him when the matter was called on.  At that time, there was no appearance by or on behalf of the wife.  I accordingly had my court officer call the wife outside the court.  She failed to respond to the call.  I heard preliminary submissions from Ms Jenkins and having read the papers relied upon, for they were limited in number, and having had the advantage of a helpful Summary of Events prepared by Ms Jenkins, I commenced to deliver my extempore judgment.  I proposed at that time to dismiss the wife's application.

6. Albeit that I may not be accurate in terms of the time frame, it was at about 10.40 am that the wife entered the court room.  No apology or explanation was tendered.  Given the circumstances I could have continued to proceed with my judgment and in so doing, dismiss the application.  However, and generously in my view, Ms Jenkins placed no objection to the fact that the matter recommence, and so it did. 

7. The wife's submissions were difficult to understand and, from time to time, Ms Jenkins, helpfully assisted in explaining that which was being advanced by the wife.  I understand how the wife's case is put and in so doing I set aside those utterly irrelevant matters referred to in her typed document annexed to her Form 2 Application.  That document bears some analysis and for the sake of completing the narrative survey in this extempore judgment, I incorporate it into my judgment it its pristine and uncensored condition.  The orders sought are as follows:

   (1)The Judge should referral my case to the State and Federal Government to avoid more Judges and Registrars to involve in wrong practise (sic) the Family Law Act.

   (2)Under Part IIA of the Family Law Amendment 2006 I am seeking the court to order us to attend a non-court based Family Counselling Service.

   (3)[The husband] and I should not pay $96.50 to [the husband]'s lawyer because [the husband]'s lawyer made Order without [the husband]'s  consent.

   (4)To stop [the husband]'s  Lawyer continuing the collusion between Judge and Lawyers, To stop [the husband]'s lawyers to influence Judges to help them make money from me in the courtroom.  The court should refuse [the husband]'s lawyer order from court.

   (5)The Registrar should be removed from Courtroom if she continue to contravene with the Family Law Act.

8. The absurdity, indeed nonsense of the orders sought is apparent.  However, with that background I heard from the wife this day which was beset with a degree of difficulty, but with the assistance of Ms Jenkins, I fully understand how her Application is put.  She complained that the husband was not in attendance on 7 June 2007.  The wife “complained that from the Family Law Act”, the responsibility for costs fell “normally” upon the Applicant.  She submitted that the Registrar ought not to have ordered costs in the sum of $96.50 because it was “the husband's fault” that the proceedings did not take place that day.  The wife then resumed her seat.

9. I heard from Ms Jenkins who provided a helpful Summary of Events.  In order to best understand the background and how the matter came before the learned Registrar, it will be helpful to survey that document. 

10. The litigation history reveals that a case assessment conference was undertaken by Registrar Marrone on 21 January 2007.  The wife did not attend.  The matter was adjourned to the Procedural Hearing List on 14 February 2007 with an order that the husband's costs be reserved.  On 14 February 2007, the wife being in attendance, Registrar Kaur ordered her to file responding documents and a Form 13 Financial Statement.  A Conciliation Conference was fixed for 23 April 2007 and there was to be an exchange of necessary financial information for that conference.  On the given day, the wife not being in attendance, Registrar Hunt adjourned the conference to 15 May 2007.  The wife was ordered to pay the husband's costs of $192.90.

11. On 10 May 2007 the wife's Form 2 Application to Review the decision of Registrar Kaur made on 14 February 2007, was heard by Dessau J.  This time, the wife was in attendance and her Honour dismissed the application.  Her Honour further adjourned the Conciliation Conference to 7 June 2007 so as to allow information to be exchanged and ordered the wife pay the husband's costs, fixed at two hours' scale rate. 

12. Thereafter there followed a series of correspondence referred to in the Summary of Events which I propose to address as they underpin, without any shadow of doubt, how the matter came before Registrar Marrone and the decision made by the learned Registrar that day. 

13. On 11 May 2007, Ms Jenkins wrote to the wife (by email) and (inter alia) advised her that the husband would not be able to attend the Conciliation Conference on 7 June 2007 as he would be overseas.  He was scheduled to return however on 12 June 2007 and accordingly a further date would be required for that conference.  On the same day, Ms Jenkins emailed the List Registrar of the Family Court advising of that fact.  A copy of that correspondence was also sent to the wife who was thus privy to the exchange between Ms Jenkins and the court.  The two letters are marked Exhibits “A” and “B” respectively.

14. On 16 May 2007 the wife emailed Ms Jenkins advising that she would be overseas and not available from 11 June to 12 July 2007.  I have marked that correspondence Exhibit “C”.  On the same day, Ms Jenkins emailed the wife, thanking her and noting that she would be overseas as indicated.  Ms Jenkins went on to say:

    In the circumstances, we suggest that the Conciliation Conference be adjourned to a date on or after 19 July 2007 and both you and [the husband] will be back in Australia. 

    Please confirm that you consent to the Conciliation Conference being adjourned from 7 June 2007 to a date on or after 19 July 2007.  We will then contact the Court to ask them to set a new date for the Conciliation Conference.

    That letter is marked Exhibit “D” and is perfectly plain, professional and         courteous in its terms. 

15. On 22 May 2007, Ms Jenkins emailed the wife, referring to earlier communications and advised that she still awaited confirmation of her consent as sought in the emails to which I have referred.  Ms Jenkins went on to say this:

    As previously advised, our client is unable to attend a Conference on 7 June 2007 as he will be overseas.  We were unaware of this when the Court set the new date for 7 June 2007.  If you do not contact the Court and agree to adjourn the conference, we will have to attend on 7 June 2007 and ask the Court to allocate a new date on or after 19 July 2007.  If we are forced to attend Court on 7 June 2007 we will be asking the Court to make an order that you pay our client's costs of us attending on the day.

16. Some two weeks passed, and on 6 June 2007 at 5.58 pm, at 6.05 pm and further at 6.19 pm the wife emailed Ms Jenkins advising her to cancel the "reconciliation conference because [the husband] cannot attend".  She said that she had faxed a Notice of Appeal which I assume to be from the decision of Dessau J.  That email was directed to "Kelly" at 5.58 pm.  At 6.05 pm, a further email is addressed then to Ms Jenkins, requesting she cancel the "conciliation conference".  She advised again she had faxed a Notice of Appeal to the court.  Finally at 6.18 pm, another email was forwarded from the wife to Ms Jenkins seeking "to cancel" the Conciliation Conference.  That, of course, was too late.  The court had closed.  Some two weeks had passed in the meantime and there was no way that the conference could have been cancelled as requested.

17. I have already detailed what took place on the day at the Conciliation Conference conducted with Registrar Marrone.  The wife issued, as I said, her Application in a Case on 6 July 2007.  On 13 July 2007, Ms Jenkins emailed the wife and in her letter, amongst other things, referred to the Form 2 Application seeking a Review of the learned Registrar's decision which was listed for hearing on 31 August 2007.  Ms Jenkins went on to say this:

    Your Form 2 Application discloses no reason why the Orders of 7 June 2007 should be reviewed or altered.  If you do not withdraw your Form 2 Application by 9 August 2007 our client will be forced to file and serve a form 2A Response seeking Orders that your Application be dismissed and that you pay his legal cost associated with responding to the Application and appearing on 31 August 2007.

18. Again, on 30 July 2007 Ms Jenkins, demonstrating in my view the utmost of patient professionalism, emailed the wife and in the course of the correspondence she referred to the wife's Form 2 Application filed 6 July 2007.  Ms Jenkins identified the letter that she had written of 13 July 2007 (which is before the court and marked Exhibit “G”) reminding her that if the Application was not withdrawn by 9 August 2007 the husband would be obliged to file a Form 2A Response and an order for costs would follow that event.  That correspondence is marked Exhibit “H”.

19. Finally, on 17 August 2007 Ms Jenkins again emailed the wife and in the course of correspondence referred to her Form 2 Application and to the letters of 13 July and 30 July 2007 to which there was no reply.  Ms Jenkins went on to say that as the wife had not withdrawn her Form 2 Application, the husband would now file and serve a Form 2A Response seeking orders that the application be dismissed with costs. 

20. Sensibly, in my view, under a heading in bold lower case, "Recommendation for legal advice”, Ms Jenkins strongly recommended that the wife engage a lawyer who specialised in family law matters to advise and represent her.  As my extempore judgment now records, the matter commenced this morning in the absence of the wife and for the reasons earlier stated, it resumed.  I have heard the submissions of the wife and listened to them carefully, despite what I regard as her impudence to the court.  Her lack of respect for the protocols and dignity of the court was quite obvious to me.

21. In the course of this judgment the wife embarked upon a series of carping, haranguing, elevated monotones that prevented me from continuing.  It became impossible.  Her lack of respect for the court was heightened by her tone of voice, her sheer temerity and brazenness to the extent that I could not continue with the judgment and was obliged to adjourn the court.  In the meantime I had security remove the wife from the court.  Without that it would not have been possible for me at all to have continued with the judgment. 

22. The Form 2 Application in a Case brought by the wife is utterly without merit.  She is the mistress of her own misfortune.  The order for costs was modest.  She failed to heed what I regard as professional courtesy advanced by Ms Jenkins and in so doing is the source of the situation that brought the husband to the court this day in circumstances where, with good commonsense and plain objectivity, the hearing could have been avoided.

23. For the reasons earlier outlined I regard the order of Registrar Marrone to be properly made and I dismiss the Application for Review.   

24. Following the delivery of my judgment, Ms Jenkins sought an order for costs.  Section 117(1) of the Act provides that parties to litigation in this court each bear their own costs.  However, by section 117(2) it is provided that if there are circumstances justifying the court so doing, an order may be made for costs.  Reference is made then to the list of matters set out in s 117(2A) of the Act. 

25. The wife has been unsuccessful in the proceedings.  The reasons for the dismissal of her application are set out in my judgment.  There is no basis at all for her application being brought and in the whole of the circumstances it appeared to me at first blush that costs sought on an indemnity basis was perfectly appropriate.  However, and again somewhat generously, Ms Jenkins has sought a modest cost order to cover two hours of this day and two hours of incidental matters which would include conferences and preparation being four hours in all at scale of $192.90.  Total costs would thereby $771.60.  I regard those costs modest in the circumstances and I propose to order that the wife pay those costs.  The Application is dismissed.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  18 September 2007.