Pillai and Doshi (No 4)

[2011] FamCA 523

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO 4) [2011] FamCA 523

FAMILY LAW - SELF REPRESENTED LITIGANTS - ORDERS – Stay – Where the applicant husband sought a stay of orders pending his appeal in an Application in a Case – Where the applicant did not appear at the hearing of the application
FAMILY LAW - PRACTICE AND PROCEDURE - Application - Dismissal or Striking Out – Where the applicant did not appear at the hearing of the application – Where the application was dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), rr 1.04, 1.09, 1.10, 1.12. 11.01

APPLICANT: Mr Pillai

RESPONDENT: Ms Doshi

FILE NUMBER: DGC 664 of 2007

DATE DELIVERED: 6 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 6 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Johns

ORDERS

IT IS ORDERED:

1. THAT pursuant to order 1(ii) of the orders pronounced 8 March 2011 and further pursuant to paragraph 6 of the application in a case filed by the husband on 1 June 2011 the sum of $2,900 be paid directly to the Westpac Mastercard account of the husband, BSB …, Account Number ….

2. THAT otherwise the husband’s application in a case, filed 1 June 2011, be dismissed.

3. THAT the husband be allowed a period of fourteen (14) days from the date of these orders to apply to reinstate his application upon proper material being filed and served.

4. THAT pursuant to order 1(iii) of the orders pronounced 8 March 2011 a sum of $5,000 be paid to the wife.

5. THAT the payments of each of the sums of $2,900 and $5,000 (pursuant to the previous orders hereof) be authorised and be made from the joint account held in the names of the parties with the Commonwealth Bank at …, BSB …, Account Number … .

6. THAT the husband pay the costs of the wife, of and incidental to the appearance by her solicitor at Court this day, such costs being fixed in the sum of $475, to be paid prior to any distribution of monies to be made to the husband pursuant to order 1(iv) and order 2 of the orders pronounced 8 March 2011.

7. THAT a transcript of these proceedings be authorised and placed upon the Court file and upon request be made available to the parties.

8. THAT otherwise each of the orders sought by the wife in her response to the application in a case filed 1 July 2011 be dismissed.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of a solicitor appearing as counsel for the wife.

IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi (No 4) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 664 of 2007

Mr Pillai

Applicant

And

Ms Doshi

Respondent

REASONS FOR JUDGMENT

1. On 8 March 2011 I delivered reasons for judgment and pronounced orders on the property and financial issues in dispute between the parties.  Earlier on 3 February 2011 I delivered reasons for judgment and pronounced orders on the parenting matters in dispute between the parties.

2. The husband has filed a Notice of Appeal against those orders and presently the matter is listed to be heard by the Full Court later in this year.

3. On 1 June 2011 the husband filed an Application in a Case supported by his affidavit filed the same day. 

4. The interim orders sought by the husband seek a stay of the orders of 8 March 2011 and 3 February 2011 pending his appeal and for various payments to be made from a joint account held by the parties at the Commonwealth Bank, … Branch, in which the net proceeds of sale of the former matrimonial home are held.

5. The wife filed a Response to the husband’s Application in a Case on 1 July 2011 supported by her affidavit filed 30 June 2011.

6. The wife sought orders for the payment of the sum of $5,000 to her from the joint funds as had been previously ordered in the property proceedings.  Otherwise she sought the dismissal of the husband’s interim Application in a Case and an award of costs in her favour.

7. The matter was listed on this date at 10.00 a.m.  The husband did not appear at that time and I stood the proceedings down until 10.45 a.m. to allow the husband additional time to arrive at Court.  The matter was then called on at 10.50 a.m. and the husband did not appear.  The husband was called three times out of Court but was not within the Court building.

8. I then requested that the solicitor for the wife telephone the husband on the mobile telephone number he had provided both to their office and to the Court.

9. The matter was again stood down for that purpose and the husband was recalled three times out of court at approximately 11.10 a.m. and was not within the Court building.

10. I was subsequently advised by the solicitor for the wife that there was no recorded message service on the husband’s mobile phone and that the call rang out on the two occasions that the solicitor had attempted to call the husband.

11. I had carefully read the husband’s application and affidavit, and the wife’s response and affidavit, had noted the orders sought by each party and was wholly familiar with all of the matters and facts related to these proceedings in view of the husband’s application for a stay pending the appeal of this matter.

12. The Court has significant and substantial powers provided to it pursuant to Chapter 1, Part 1.3 of the Family Law Rules 2004 (Cth) (“the Rules”). The power of the Court to make orders are highlighted in r 1.10, and it is important to note that the Court may itself dispense with the Rules pursuant to r 1.12 or make procedural orders as it considers necessary in cases of doubt or difficulty per r 1.09. Further the Court pursuant to Chapter 11, Part 11.1 of the Rules is empowered by r 11.01 to make orders in relation to case management consistent with achieving the main purpose of the Rules. The main purpose of the Rules is to “ensure each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstance of the case”. Pursuant to r 11.01, item 3 at (e) and (f), the Court may make orders in relation to the conduct of a case in the absence of a party and deal with an application without an oral hearing.

13. I am satisfied that the husband should have been present at Court this morning for the hearing of his Application.  No notice was received by the Court from him seeking an adjournment or for the matter to be stood down and the wife’s solicitor expected the husband’s attendance and had not been advised or notified to the contrary.

14. The Court was advised by the wife’s solicitor that the proceeds of sale of the former matrimonial home are now invested in a joint account in the names of the parties with the Commonwealth Bank at …, under the control and authorisation of the wife’s solicitors.  Pursuant to my earlier orders of 8 March 2011 various payments were to be made from that sum as provided for in orders 1(i), (ii) and (iii), and thereafter the balance of monies were to be apportioned between the parties subject to order 1 (iv), and order 2. 

15. It is clear from the orders that the payment of the sum of $2,900 to the Westpac Bank in reduction of the husband’s then Mastercard debt was to occur, and the wife and her solicitors knew and understood, and have filed no cross appeal against that order.  The husband has sought the enforcement of that order in paragraph 6 of his interim Application before the Court.  That payment was not opposed by the wife’s solicitors this day and I conclude that it is just and proper to facilitate that payment in view of the clear order made on 8 March 2011 to that effect.

16. By her Response the wife had sought an order that the sum of $5,000, as had been provided for in order 1(iii) of the orders of 8 March 2011 be paid to her to offset that sum earlier paid to the husband pursuant to a Court order as a partial settlement of property.  I find it is just and proper that this payment be made to the wife and be paid from the joint account held with the Commonwealth Bank at … .

17. The effect of each of these payments is to benefit the husband and wife respectively and to do so is in accordance with the orders earlier made.  It ensures that the balance of the available monies remain in the joint account pending the hearing and determination of the husband’s appeal.

18. I have not made any other order, as was sought by the husband in paragraph 7 of his Application, for the accrued interest on the Westpac Mastercard debt to be paid out to him.  I have no evidence of quantum and I repeat that the husband is not at Court to present his submissions in support of that aspect of his Application.

19. I otherwise dismiss the orders sought by the husband in his Application in a Case filed 1 June 2011.  I will do so, however, subject to granting the husband a period of fourteen days to apply, at his cost and expense, to reinstate his interim Application in a Case, but only upon material properly filed and served.  The husband should appreciate that any such Application would likely be opposed by the wife and, in the event that he is unsuccessful in any reinstituted application, may lead to further costs orders being made against him.  However, that is a matter upon which the husband must carefully reflect before issuing any further Application.

20. I dismiss the balance of the orders sought by the wife in her Response save as to the $5,000 and consequential costs orders sought that I consider to be just as a consequence of the non-appearance of the husband at Court on this day.

21. The wife’s solicitors made submissions seeking costs fixed in the sum of $475. Those costs were said to be calculated on the Legal Aid Scale and are less than the actual sum to be charged to the wife.  The matter was before the Court for a period of approximately ninety minutes and otherwise the wife’s solicitor had travelled from and will return to her office in Blackburn.

22. I regard the quantum of costs sought by the wife’s solicitor as modest and I will order that $475 be paid by the husband to the wife prior to any distribution of monies to him pursuant to the final property and financial orders.  That costs sum is not to be paid out to the wife’s solicitors from the joint account held with the Commonwealth Bank at … and must await the determination of the husband’s appeal and any consequential orders.

23. I propose to order a transcript of the brief proceedings before the Court this day. That document will make evident to the husband the efforts that this Court has been put to in order to have him called out of Court, telephoned or otherwise contacted and that allowed substantial time for him to have been at Court.

24. I conclude the just and proper order is to dismiss the balance of orders sought by the parties in their respective Application and Response documents.

25. It is proper that I certify for the attendance of the solicitor who appeared as counsel for the wife in the proceedings before the Court on this day.

26. I will ensure that these reasons for judgment be prepared expeditiously and served upon the husband, together with the orders, at his registered address for service which remains … in the State of Victoria.

I certify that the preceding Twenty-Six
(26) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 7 July 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………