Sheridan and Sheridan (No. 2)

[2014] FamCA 503

FAMILY COURT OF AUSTRALIA

SHERIDAN & SHERIDAN (NO. 2) [2014] FamCA 503

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – wife opposed husband’s oral application for an adjournment of enforcement hearing – husband sought to adjourn proceedings due to ill health and provided the Court with a medical certificate – whether husband has capacity to respond to wife’s allegations – where husband was on notice – where wife will require more time to ensure compliance with Family Law Rules 2004 (Cth) – procedural fairness – adjournment granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 20.32

APPLICANT: Ms Sheridan

RESPONDENT: Mr Sheridan

FILE NUMBER: ADC 2309 of 2009

DATE DELIVERED: 9 July 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

Orders

Upon Noting on the next occasion if there is any application to further adjourn the matter the Court will require the attendance of the medical practitioner or anyone preparing an affidavit in relation to any further request for an adjournment.

IT IS ORDERED THAT

1. The Contravention Application filed on 23 May 2014 by the wife and the Application in a Case filed on 4 July 2014 by the wife is adjourned to 30 September 2014 at 10.00 am before the Honourable Justice Dawe (allowing one day).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheridan & Sheridan (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2309 of 2009

Ms Sheridan

Applicant

And

Mr Sheridan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. According to the affidavit of service, the Application in a Case was only served on the husband on 7 July 2014.  The Application in a Case relating to the enforcement of orders also requires further information if it is going to garnishee part of the wages of the husband.  Details of the protected earnings would need to be provided, in accordance with Rule 20.32.  Therefore the request for an adjournment, in any event of the Application in a Case would have to be seriously considered, in order to do fairness to each of the parties, to the wife to avoid the risk of it being dismissed due to failure to comply with the necessary rules, and to the husband, by not requiring it to be dealt with at short notice.

2. The Contravention Application is a different matter.  The Contravention Application was filed on 23 May 2014 and previously listed before me on 20 June 2014 when directions were specifically made for this matter to be heard this morning.  The parties were advised to obtain proper legal advice in relation to the Contravention Application.

3. The husband has therefore been on significant notice, as to the Contravention Application, for a considerable period of time.  It is not a question of lack of notice.  What needs to be determined, however, is the capacity of the husband to respond to the Contravention Application.

4. Contraventions of this nature, being contravention of orders alleged to have been made, which are orders which do not affect children, can result in significant penalties being applied, varying from a bond, a variation of the order or up to fines and imprisonment.

5. The letter from the doctor, which appears on the face of it to be a genuine letter from the W Medical Practice, dated 8 July 2014, specifically refers to the husband not being fit to attend any Court activity within the coming two weeks.  It also states that long hours of sitting still and cognitive attention could be very difficult for him during the coming two weeks, when he will continue this therapy.

6. As I have read out on the transcript earlier, it is significantly a Medical Certificate in relation to attending Court and his capacity to participate in the Court proceedings.

7. I accept the comments made by the wife, by way of frustration of the outstanding matters and the alleged non-compliance by the husband with the specific orders made by this Court, the need to conclude the litigation and the fact that the outstanding judgment and the overall property settlement proceedings keep being reopened and delayed, pending the resolution of these other matters.

8. However, taking into account the exhibit which I have now received from the doctor, the general principles of fairness to the parties requires me to adjourn to enable the husband to be in a position to participate properly in the serious contravention proceedings.

9. I therefore propose to grant the request for the adjournment. 

10. Both the Application in a Case and the Contravention Application are adjourned to 30 September, at 10.00 am before me.

11. In relation to the Contravention Application, the husband needs to consider getting some sensible legal advice and take steps to overcome the problems which appear to have been created by what is alleged to have been the contraventions of the orders.  He should consider steps which also can be taken to alleviate the necessity for any further enforcement orders.  On the next occasion, if there is going to be any application to further adjourn the matter, I will require the attendance of the medical practitioner or anyone preparing an affidavit in relation to any further requests for an adjournment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 9 July 2014.

Associate: 

Date:  14 July 2014