Simons and Anor and Simons and Ors (No. 2)

[2015] FamCA 44

FAMILY COURT OF AUSTRALIA

SIMONS AND ANOR & SIMONS AND ORS (NO. 2) [2015] FamCA 44

FAMILY LAW – PRACTICE AND PROCEDURE – Ruling – Writing letters to judge requesting conduct of case be considered – Inappropriate course of action.

Family Law Act 1975 (Cth)

APPLICANT WIFE: Ms Simons

2^ND APPLICANT: Ms M Simons

RESPONDENT HUSBAND: Mr Simons

2^ND RESPONDENTS MATERNAL

GRANDPARENTS:

Ms C Sanna and Mr E Sanna

3^RD RESPONDENT MATERNAL AUNT: Ms F Sanna

INTERVENER: Department Of Human Services

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2476 of 2010

DATE DELIVERED: 8 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 January 2015

REPRESENTATION

THE APPLICANT WIFE: Mr Duncan (Excused)

THE 2^ND APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT

HUSBAND:

Ms Paull

SOLICITOR FOR THE APPLICANT: Esser Legal

THE 2^ND RESPONDENTS MATERNAL

GRANDPARENTS:

Both in person

THE INTERVENER: Ms Buchanan

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mc McCreadie

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Bowlen Dunstan & Associates

Orders

1. That the application by MS M SIMONS to attend the hearing by electronic communication is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simons and Anor & Simons and Ors (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 MELBOURNE

FILE NUMBER: MLC 2476 of 2010

Ms Simons

Applicant

And

Mr Simons and Others

Respondents

REASONS FOR JUDGMENT

1. Yesterday, I made mention of the fact that there were two letters that I wanted to bring to everybody’s attention.  One of which was from the party Ms M Simons.  My Associate this morning has drawn to my attention that we have another letter.  What is concerning about it is that, quite inappropriately, this letter has not been drawn to the attention of any other party.  I appreciate that this young woman is only 18 or 19 years of age and does not seem to have any legal advice now although, she certainly did have legal advice up until very recently. 

2. It is quite improper to write to a judge and to not copy other parties in.  The other parties would be quite within their rights to ask what does the judge know that we don’t know, and in respect of evidence, what particular matters are being considered by the judge that may be influencing the judge about which we are not aware. 

3. Contrary to my usual practice I have read this letter.  I do not intend to release it to anybody, but to simply put it into context.  I do not intend to release it because it contains a telephone number and indeed an email address with what can only be described as a plea for it not to be released to, presumably, her father Mr Simons.

4. I am going to respect the writer’s request for privacy having regard to what I had read in the affidavit material about the controversy, but that is not the point that I want to raise.  This letter says that it has been written as a result of conversations that took place with people after Court yesterday, and I will quote the words that Ms M Simons uses.

   I had requested permission to appear for this case electronically, but however, understand from speaking to people who attended Court today that you have reached a decision based on my written application.

   So to the extent that someone has been telling Ms M Simons what has been going on, there is nothing wrong with that because, as far as I am concerned, Ms M Simons is no longer a party, but I want to put on record something that I did not say yesterday, but which now should be seen as the full picture.

5. The earlier letter that I mentioned yesterday had attached to it two documents.  One was a request to attend the Court proceedings by electronic communication, and the second was a notice of discontinuance of the proceedings.  The letter that was written this morning or last night – at 8.09 pm it was emailed to the Court – said that the reason for the two documents that were sent only a day or so ago was initially a request to attend the proceedings as a litigant by telephone, and failing an agreement by the Court for that to occur, then the notice for discontinuance was to be relied upon.

6. Because of the letters, I want to publish my reasons as to why yesterday morning I rejected the application to attend electronically.  Normally, an application for electronic attendance at a Court proceeding is dealt with by a registrar, or in some cases, by the trial judge.  It is dealt with in chambers prior to the commencement of the proceedings.  The correct approach under the rules is for the application to be made at least seven days prior to the hearing, and that did not happen here.  More importantly, the application must be sent to all other parties who are then given an opportunity to comment on whether they agree, and regardless of their agreement, it is a matter for the trial judge to decide whether the litigant can deal with the case in that way.

7. This particular application was clearly not sent to any other person but I propose to put on the record why I have rejected it.  The application says that its basis is that Ms M Simons is unwilling to attend Court and see Mr Simons, her father, due to long-standing intervention orders.  She then says in parentheses as her first ground:

   In future situations, re-access with my siblings would like to formally discuss and arrange access in a civilised manner rather than feeling confronted by seeing him in the courtroom.

   She then says as her second ground:

   Advised by mental health professional and other involved parties –

   Presumably, that must mean someone other than the Department of Human Services, the Independent Children’s Lawyer and Mr Simons:

   Not to be questioned in the courtroom due to my feelings of being uncomfortable with being in the same as the respondent.

   Presumably that means the same room.  And then in parentheses, she says:

   I am aware if access with my siblings is granted that I will need to have contact with the respondent and would manage this civilly. However, the pressure of the courtroom changes the way members of the parties react.

   I am very happy to respond to questions.  However, would prefer to do this electronically or at another date.  Not in such a formal matter, ie, courtroom.

   The third ground is:

   I have been involved in a program assisting … .  This is a national program, and I have been invited to attend training at an interstate location.  This training/airfare was arranged before the Court day was finalised hence my inability to attend on the date of the hearing.  In addition to the abovementioned personal reasons, there is also a significant contributing factor as to why I need to attend this session electronically.

8. Whether or not the applicant wished to see or be seen by the husband is a matter that should not affect the question of whether or not the evidence could be given electronically.  The Court has facilities to link courtrooms by video-link if that was necessary.  It is important to recognise that this application was made almost immediately after Ms M Simons’ solicitors then acting for her had ceased to act so I can only presume that this would have been a subject that would have been discussed with her lawyers over a period of months.  I bear in mind that her affidavit in respect of the evidence that she would have given was drawn by her lawyer.  Accordingly, to simply say that she was unwilling to attend court and see the husband based on long-standing intervention orders is not a ground upon which I would have allowed electronic communication of the nature she contemplated. 

9. The second reason is that she had been advised by mental health professionals and other involved parties not to be questioned in the courtroom relating to her being uncomfortable in the same room as the respondent.  That is linked, in my view, with the first ground.  She said that she was happy to respond to questions but to do it at another date.  It seems to me that that is the same basis as the first ground that I rejected.

10. The third one is somewhat more disconcerting.  Whatever way one looks at it, this national program that Ms M Simons was involved in is said by her to have been arranged before the court date was finalised.  On that basis she and her lawyers well knew that these proceedings were to commence on 7 January.  There could be no basis, therefore, for her not to have told someone prior to when this application was made, bearing in mind the rules require that seven days notice be given.  On that basis, I reject each of the three grounds. 

11. It is important, however, that I also mention that when an application is made for electronic attendance, the applicant must also set out the proposed arrangements proposed for the attendance.  In this case Ms M Simons said that she would be in a private location and be available to phone in at a time stipulated.  This was a three-day hearing.  That would have required constant attendance over three days.  That seems inconsistent with her proposed attendance at a conference.

12. She goes on to say that she would not be able to be in communication with her lawyer at the time of the call.  That is somewhat perplexing bearing in mind that her lawyers filed a notice of ceasing to act and so as far as I understood, she was not represented. 

13. She then said she would like to be notified at least one day in advance in order to arrange a suitable space and time to receive the call.  I repeat:  this case was listed for three days and here, as I understood her application, she was attending a training program at an interstate location so how she would have allocated three days I am not sure.  I bear in mind that she was a party to the proceeding and not a witness. 

14. She then went on to say that she would not like her telephone number to be disclosed to the husband and his legal representatives and I have, as I have earlier mentioned, respected that.

15. She then says, “The applicant would like to be only addressed by his Honour or by appropriate legal representatives.”  I am not entirely sure what that means but if it means that no one else could cross-examine her then she clearly misunderstood the nature of the proceedings. 

16. It was on those bases – although I did not publicly announce it yesterday – that I rejected her request to attend by electronic communication.  That being the case, her request was that if it was refused, then her notice of discontinuance would apply.  Accordingly, as I announced yesterday at the start of the proceedings, I had accepted that the notice of discontinuance had been filed although if the court file is ultimately searched it will be noted that it was actually only filed in the registry on 8 January.  That was an administrative matter and not anything to do with when it was actually received by the court.  For that reason, I indicated at the start of proceedings yesterday morning that I was not contemplating calling Ms M Simons outside of the court because as far as I was concerned, she was no longer a party to the proceedings.

17. The letter that was written late last night seems to be wanting to reactivate her involvement.  Because of all of the matters I have just mentioned, I do not propose to take the matter any further other than to point out to those who might be telling Ms M Simons after court it is highly inappropriate for her to be contacting a judge let alone the Court on the basis that she has.  I will have those reasons transcribed and placed on the court file and be made available to the parties.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 January 2015.

Associate: 

Date:  16 January 2015