Sirola and Sirola and Anor (No.2)

[2016] FamCA 650

FAMILY COURT OF AUSTRALIA

SIROLA & SIROLA AND ANOR (NO.2) [2016] FamCA 650

FAMILY LAW – PRACTICE AND PROCEDURE – Final hearing to continue in the absence of the respondent father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sirola

1ST RESPONDENT: Mr Sirola

2ND RESPONDENT: Ms D

INDEPENDENT CHILDREN’S LAWYER: Ms Shea

FILE NUMBER: SYC 5380 of 2014

DATE DELIVERED: 3 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 3 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT:	Harris Freidman Lawyers
FOR THE 1ST RESPONDENT:	Mr Sirola in person

FOR THE 2ND RESPONDENT: Ms Torrisi of Australian Family Law Practice

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

Orders

1. That the hearing continue despite the absence of the respondent father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5380 OF 2014

Ms Sirola

Applicant

AND

Mr Sirola

1st Respondent

AND

Ms D

2nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I note, following an adjournment, the Court resumed at approximately 12.20 pm. Upon resumption this matter was called three times outside the body of the court. After calling the matter, the court officer informed the Court that there is no appearance by Mr Sirola.

2. I have been informed by Mr Schonell that, during the course of the adjournment, Mr Sirola advised him that he was feeling unwell and that he intended to leave the building and play no further part in these proceedings. Mr Sirola was advised by Mr Schonell that, should Mr Sirola leave, he would apply for this matter to continue in the absence of Mr Sirola.

3. I notification provided by Mr Sirola  occurred in circumstances where after presenting the outline of his case approximately 10.20 am this morning Mr Sirola requested leave to leave the Court as result of feeling nauseous.

4. I note that Mr Sirola has not applied for an adjournment or otherwise sought to restrain the proceedings from continuing.

5. The conduct of Mr Sirola must also be seen in the context where there have been several instances where Mr Sirola has not attended court proceedings and other instances where he has applied for adjournments. Those instances are referred to in my decision dated 16 June 2016 in which I granted Mr Sirola’s adjournment application in respect to an Application in a Case filed by the wife.

6. Despite being aware of the adjourned date Mr Sirola failed to attend the court on 28 June 2016 when that Application in a Case was listed for hearing.

7. This court has an obligation to act fairly in all the circumstances. Fairness must be considered not only from the perspective of the party who fails to appear but also from the perspective of all other parties. All parties are expected to comply with directions regarding the orderly conduct of proceedings before this court including, most significantly, appearing at such times as the matter is listed for hearing in order to prosecute their case.

8. Those parties who have made applications for orders are entitled to have their matter heard as quickly as is reasonably possible.

9. This matter concerns an application for parenting orders and orders regarding the adjustment of property. The parenting application, in particular, involves matters of great significance including consideration of evidence that the children are at risk of emotional and psychological harm. It is important for the court to deal with that matter as soon as possible.

10. A court considering the non-attendance of a party due to illness is entitled to require that party to provide appropriate evidence regarding the nature of their illness and the extent of their incapacity. See, for example, Woolley v Grace Worldwide (Australia) Pty Ltd [2015] QCAT 461. In this case no such evidence has been produced.

11. In all the circumstances, I am therefore satisfied that it is appropriate for this matter to continue in the absence of Mr Sirola.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 3 August 2016.

Legal Associate

Date:  4 August 2016