Simplot and Deene

[2013] FamCA 399

FAMILY COURT OF AUSTRALIA

SIMPLOT & DEENE [2013] FamCA 399

FAMILY LAW ─ PRACTICE AND PROCEDURE ─ Management hearing ─ Solicitor on the record and client fail to appear without explanation ─ Previous criticism by the Court of that solicitor ─ Inappropriate and late filing of documents ─ Query solicitor’s contact.

Family Law Act 1975 (Cth)

APPLICANT: Mr Simplot

RESPONDENT: Ms Deene

INDEPENDENT CHILDREN’S LAWYER: Mr Eidelsen

FILE NUMBER: MLC 11902 of 2007

DATE DELIVERED: 8 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamilton

SOLICITOR FOR THE APPLICANT: Thexton Lawyers

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Eidelsen

SOLICITOR FOR THE INDEPENDENT

 CHILDREN’S LAWYER:

McKean Park

Orders

1. Subject to any order to the contrary that may be made on 7 June 2013 by the trial judge, the father have leave to proceed on an undefended basis.

2. That all applications for final orders be adjourned for hearing before Justice Cronin on 7 June 2013 at 10 am and that the evidence in chief of all witnesses be given by affidavit.

3. That by 4 pm on 31 May 2013 the applicant file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

4. That a copy of this order be served upon Michael Reid Legal by the solicitor for the father as soon as practicable.

5. That the costs of the father this day are reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simplot & Deene 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 11902 of 2007

Mr Simplot

Applicant

And

Ms Deene

Respondent

REASONS FOR JUDGMENT

1. This matter is in a list which is known as the First Day Hearing before a Judge.  That is probably not an apt description of what is actually happening here because this case was docketed to, and listed by Dessau J in December last year and the court file has an enormous amount of transcript on it, presumably ordered by her Honour, which indicates that the case really never got off the ground, and reading between the lines, her Honour was extremely critical of the solicitor who was then acting for the wife. 

2. I made orders as a result of her Honour transferring the case to me in my role as the case management judge.  Those orders were made on 11 February 2013.  On that day I ordered the matter be listed for hearing today for the purposes of setting it down for final hearing.  I directed that the parties and their legal practitioners attend.  In addition, I made an order that the applicant file an amended application by 19 April and a response by 3 May.  The applicant complied.  The respondent did not.  There was a very clear notation attached to the order that if a party did not comply with the orders then the party who had complied may make an application to proceed on an undefended basis, including today.

3. It is now two minutes to 1 pm and I have been advised that Mr Eidelsen of counsel on behalf of the independent children's lawyer became aware that Mr Reid, solicitor for the respondent, who is the solicitor still on the record and who is the solicitor mentioned throughout the transcript by Dessau J, indicated that he was going to come and would be here by 11.15.  He has not arrived.  More importantly, no documents have been filed by him other than at two minutes to 9 this morning an electronic document was filed contrary to the orders I made, in the form of a response to an application in a case.

4. This Court cannot be held to ransom by a solicitor or a party and having regard to what occurred in December before Dessau J, it is not appropriate that I delay the applicant’s entitlement to proceed any longer.  

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 May 2013.

Associate: 

Date:  23 May 2013