SIMONS & FLYNN

[2014] FamCA 991

FAMILY COURT OF AUSTRALIA

SIMONS & FLYNN [2014] FamCA 991

FAMILY LAW – PRACTICE AND PROCEDURE – procedural and costs orders.

APPLICANT: Ms Simons

RESPONDENT: Mr Flynn

FILE NUMBER: MLC 8827 of 2008

DATE DELIVERED: 30 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 30 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchings

SOLICITOR FOR THE APPLICANT: Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That the operation of paragraph 2 of the orders dated 9 May 2014 continue until further order of this Court.

2. That within 14 days the respondent make, file and serve:-

   (a)A Notice of Address for Service;

   (b)Response to Initiating Application;

   (c)Financial Statement; and

   (d)Any affidavit upon which he seeks to rely.

3. That the respondent pay the applicant’s costs of this day fixed in the sum of $1,650, payment of such costs to be stayed until 30 June 2014.

4. That all extant applications be adjourned for hearing at 10.30am on 25 June 2014 in the Registrar’s Directions Hearing list.

5. That the applicant cause a sealed copy of these orders to be personally served on the respondent as soon as practicable.

AND THE COURT NOTES

(A)The applicant is at liberty to serve a copy of these orders on the entities listed at paragraph 3 of the orders made 9 May 2014.

(B)That in the event the respondent fails to appear at the directions hearing on 25 June 2014 the applicant may seek leave to have the matter listed for hearing to proceed on an undefended basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simons & Flynn 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 8827 of 2008

Ms Simons

Applicant

And

Mr Flynn

Respondent

REASONS FOR JUDGMENT

1. Today is the adjourned hearing of the applicant’s Initiating Application which was originally filed on 28 March 2014.  In that application, the applicant sought ex parte orders and leave to proceed on an ex parte basis.  She also sought injunctions restraining the respondent from dealing with various named accounts in which it is alleged by the applicant that he holds funds or shares.  The applicant’s evidence before the Court is that the respondent is engaged in the business of share trading. 

2. That application was originally listed before me in a Judicial Duty List on 9 May 2014.  That day in the Judicial Duty List, having heard submissions from the applicant’s solicitor and having had the opportunity of reading not only the initiating application but the affidavits filed in support of that application, I made orders, firstly, granting leave for the applicant to proceed on an ex parte basis, and, orders restraining the respondent from dealing with the named accounts until 10 am on 13 May 2014.  I further made orders that the applicant serve the various financial institutions with a copy of the orders and, that the respondent be personally served with the initiating application, the applicant’s affidavit, her financial statement and a copy of the order I made that day.

3. Prior to the adjourned hearing on 13 May 2014, my associate received in chambers, email communication from the solicitor for the applicant and from the respondent personally requesting that the operation of the injunction be extended and the matter be adjourned to a later date to enable discussion, negotiation and an opportunity to see if there was some way that the parties could adjust their issues without necessity for further attendance at Court.  On the basis of those communications with my associate I made orders in chambers extending the operation of the injunction until 10 am today.  I otherwise adjourned all extant applications for hearing before me to 9 am this morning.

4. Today, Mr Hutchings, of counsel, has appeared on behalf of the applicant.  There has been no appearance by the respondent.  He was called at approximately 9.05 am and he did not answer the call.  The matter was stood down at approximately 9.15 am to enable Mr Hutchings to attempt to have telephone communication with the respondent.  Further, it provided Mr Hutchings with an opportunity to inspect documents that had been produced under subpoena.

5. I am informed by Mr Hutchings that he was able to communicate with the respondent by telephone.  Mr Hutchings has informed the Court that although the respondent is aware of today’s hearing he does not intend to participate the hearing.  The reason for the respondent’s failure to attend the hearing today is apparently due to the failure of the applicant’s solicitor to return the respondent’s telephone call made yesterday afternoon.  Mr Hutchings further informed me that during the course of his conversation with the respondent that the respondent hung up on him.

6. The position as the matter currently stands is that the respondent has failed to file any material in response to the applications currently before the Court.  He has not attended today.  There was a listing on 28 May 2014 before the registrar, that being the return date of a number of subpoena to produce documents which had been issued on behalf of the applicant.  Again, I am informed that the respondent failed to appear at that hearing.

7. It is evident from the matters I have referred to earlier that the respondent is aware of today’s hearing.  He has simply failed to participate.  He does so in the face of very serious allegations made by the applicant as to his conduct with respect to the parties’ finances.  In particular, with respect to the sum of $300,000 which the applicant provided to him early in the resumption of their relationship, in about March of 2010.  Those matters I have referred to in my previous reasons for judgment provided at the hearing on 9 May 2014.  For the reasons given in my previous judgment and in the absence of any material from the respondent or any explanation made for his non-attendance, the injunctions previously made should continue until further order.

   Having regard to the circumstances I have identified already, I am satisfied that the applicant is entitled to have her application progress in an orderly fashion.  Part of that process is that the respondent needs to put his position before the Court so that there can be a complete assessment of the parties’ financial circumstances.  I will make orders for the filing of material by respondent.   

8. The applicant also seeks an order for costs. The question of costs is governed by section 117 of the Family Law Act. Ordinarily, it is a requirement that each party bear their own costs. Section 117(2) of the Family Law Act provides that:

   If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Section 117 subsection (2A) of the Act sets out the matters the Court should have regard to in considering whether or not it is appropriate to make a costs order. Subsection (a) of that provision requires that I have regard to the financial circumstances of each of the parties of the proceedings. The respondent simply does not put his position before the Court, so I am unable to make any assessment of his financial circumstances.

9. It is evident from the financial statement of the applicant that she is in a very difficult financial position.  In her financial statement filed 28 March 2014, she sets out that her weekly income is received by way of government benefits and totals approximately $600 per week.  She is the primary caregiver to the children of the relationship and she receives no financial assistance at this time from the respondent.  She deposes in her financial statement that the total value of her property is approximately $33,000.

10. It is clear that these proceedings are placing a significant financial burden upon the applicant.  That burden is made even more heavy as a result of the failure of the respondent to respond to the application, file material and enable this matter to progress to its conclusion. 

11. I have given consideration to the other provisions of section 117 subsection (2A).

12. There is no evidence before me that either of the parties is in receipt of Legal Aid. 

13. I have already had regard to the conduct of the respondent in this matter and his failure to appear now on two occasions before the Court, the first occasion being at the subpoena hearing and again at this hearing today.

14. There are no offers that I need consider in the determination of the costs application.

15. I will stay the payment of that costs order until 30 June 2014.  I earlier indicated that I will make orders with respect to the filing of material.  If there is any matter that is relevant to the payment of costs the respondent will therefore have an opportunity to provide evidence and make submissions in relation to those matters at the adjourned date. 

16. The orders will be engrossed by the Court.  I will expedite the preparation of the orders so that you can ensure service on the relevant agencies again and service upon the respondent.  I thank you for your attendance today.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 30 May 2014.

Associate: 

Date:  30 May 2014