Sirola & Sirola
[2016] FamCA 620
•16 June 2016
FAMILY COURT OF AUSTRALIA
| SIROLA & SIROLA AND ANOR | [2016] FamCA 620 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the self-represented husband sought an adjournment of the interim hearing by way of an inappropriate communication with the Judge’s chambers – Where there was confusion as to the procedural advice then given by the Registry to the husband – Consideration of the protocol for communicating directly with a Judge’s chambers – Adjournment granted. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Sirola |
| 1ST RESPONDENT: | Mr Sirola |
| 2ND RESPONDENT: | Ms D |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hayward as agent |
| FILE NUMBER: | SYC | 5380 | of | 2014 |
| DATE DELIVERED: | 16 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 16 June 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Stubbs of Harris Freidman Lawyers |
| FOR THE 1ST RESPONDENT: | Mr Sirola by telephone |
| FOR THE 2ND RESPONDENT: | Ms Torrisi of Australian Family Law Practice |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Hamish Cumming Family Lawyers |
Orders
THE COURT ORDERS BY CONSENT THAT:
The paternal grandmother, Ms D, is granted leave to join the proceedings as the second respondent.
THE COURT FURTHER ORDERS THAT:
The respondent husband’s application for an adjournment of the hearing listed on 17 June 2016 in respect to the wife’s Application in a Case filed 10 March 2016 and the Paternal Grandmother’s Application in a Case filed 29 April 2016 is granted.
The wife’s Application in a Case filed 10 March 2016 and the Paternal Grandmother’s Application in a Case filed 29 April 2016 are listed for hearing at 10.00 am on 28 June 2016.
In the event that any party fails to appear on 28 June 2016 then the hearing shall proceed on that date and be determined in the absence of that party.
I DIRECT that each of the parties is to file and serve any further material upon which intend they to rely in respect to the Application in a Case filed 10 March 2016 and the Application in a Case filed 29 April 2016 by no later than close of business on 22 June 2016.
No party is to file any additional material in support of the Applications in Case referred to in Order 4 above after close of business on 22 June 2016 without leave of the Court.
The final hearing dates of 3, 4 and 5 August 2016 and 18 and 19 August 2016 in respect to parenting and property matters are confirmed.
I CONFIRM that the Orders made on 15 March 2016 in respect to the conduct of the final hearing are to apply other than in respect to Order 5 which is to be amended to delete words “3 July 2016” and replace those words with “19 July 2016.”
The Orders made on 2 May 2016 are to continue.
The parties’ costs of this adjournment application and the costs thrown away as a result of the adjournment are reserved.
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 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
This matter has been listed today as a result of Mr Sirola requesting an adjournment of the wife’s Application in a Case, which has been listed for hearing tomorrow, 17 June 2016. That application was filed by the wife on 10 March 2016. In that application, the wife is seeking interim orders for a partial property distribution to enable her to fund her case, which has been listed for hearing on 3, 4 and 5 August 2016 in respect to parenting and property issues and, if necessary, for two additional days on 18 and 19 August 2016.
The wife’s Application in a Case was originally listed for hearing on 15 March 2016, at which time I adjourned the proceedings until 2 May 2016 as a result of non-attendance by Mr Sirola. Mr Sirola attended court on 2 May 2016. However, at that time, he requested a further adjournment on the basis that he had only recently received copies of the relevant court documents.
On 2 May 2016 I gave ex tempore reasons for orders granting the adjournment, including setting out why I ordered Mr Sirola to pay the costs of the wife thrown away as a result of that adjournment. The orders included an order listing the wife’s Application in a Case for hearing at 10 am tomorrow. Subsequent to those orders being made, the paternal grandmother has filed an Application in a Case seeking to be joined to these proceedings. Accordingly, the paternal grandmother’s Application in a Case was also listed for hearing tomorrow.
As I noted, Mr Sirola was present in court when the order was made listing the wife’s Application in a Case for interim property orders tomorrow. Nevertheless, in an email sent directly to my chambers on 1 June 2016, Mr Sirola indicated that he wished to apply for an adjournment of tomorrow’s proceedings. That email was sent without the consent of the solicitor for the wife, or indeed without the email being copied to the Independent Children's Lawyer.
In those circumstances, my Associate appropriately forwarded Mr Sirola’s email to the Sydney Registry Case Coordinators to respond. By email dated 3 June 2016, the Sydney Registry Case Coordinators responded to Mr Sirola with advice in respect to formalising his application for an adjournment and advised him of the need to communicate with the other parties. Subsequent to receiving a communication from Mr Sirola, the solicitor for the wife informed the Sydney Registry Case Coordinators that the wife did not consent to the adjournment application. It was appropriate for the wife’s solicitor to correspond directly with the Registry. Unless leave has been given to all parties to provide written submissions on an issue, disputes regarding the merits of an application should be dealt with in open court and not by way of email communication to a Judge’s chambers.
Mr Sirola claims that he has been waiting for further communication from the Sydney Registry Case Coordinator regarding the listing of this matter. In particular, by email dated 14 June 2016 sent directly to my chambers, Mr Sirola said:
In regards to the hearing listed before the honourable Justice Mc Lelland [sic] on Fri 17 June. I have been advised to wait for a reply from the case co-ordinators regarding my application for an adjournment, which according to them should be sent today or tomorrow. otherwise I am unable to attend.
Thank you for understanding.
Despite the inappropriateness of the communication being sent directly to my chambers, given the impending hearing date, I listed Mr Sirola’s application for an adjournment at 2.15 pm today. Mr Sirola was granted leave to appear by telephone.
Mr Sirola has given a number of reasons for his application for an adjournment. By way of summary, this includes that he feels he has been inundated by litigation. He indicated that he has been involved in six cases in several courts and that he has spent hundreds of thousand of dollars on the family law proceedings. He stated that he believes $140 000 is sitting in his former lawyers’ trust account. He also argued that the wife’s application is without merit as she has already received $70 000 by way of partial property settlement.
Mr Sirola stated that he is not currently in a good state of mind and that he requires time to prepare his finances and to prepare his case in respect to the family law proceedings. Mr Sirola indicated however that he is currently undertaking training to obtain his pilot’s licence. Mental health issues do not appear to have impeded that training from occurring. That training, he submitted, prevented him from being in Sydney to present his argument at tomorrow’s hearing of the wife’s Application in a Case.
In response to the submissions made on behalf of the wife opposing the adjournment application, Mr Sirola essentially repeated the arguments that he initially made as to why he sought an adjournment. However, Mr Sirola also expanded upon his arguments to include arguments as to why the hearing of 3, 4 and 5 August as well as 18 and 19 August should not take place. I indicated to Mr Sirola that the only matter before the Court today concerns his application to adjourn tomorrow’s hearing. I advised him that if he wished to apply to adjourn the substantive hearing he would need to do so by an appropriate application.
Mr Sirola has indicated that he was unclear as to the process that was being followed by the Court in respect to the listing of his adjournment application. This uncertainty has arisen as a result of Mr Sirola communicating directly with my chambers and subsequently being referred to the Registry. It is only on the basis of that uncertainty that I have acceded to Mr Sirola’s application for an adjournment of tomorrow’s hearing.
I take this opportunity to emphasise the inappropriateness of a party to proceedings or their legal advisors communicating directly with a Judge’s chambers. In R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127, McInerney J said:
…save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.
The decision by McInerney J was applied by the Full Court of the Federal Court of Australia in John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221, where the law was summarised in the following terms:
The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case.
Those principles have been developed further by Kunc J in Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) [2013] NSWSC 1971 and also by Robb J in Stanizzo v Badarne [2014] NSWSC 689. In the latter, at [73] and [74], his Honour drew upon the reasoning of Kunc J to outline the appropriate protocols that should be followed in circumstances where a party or a party’s legal representative wishes to communicate with chambers. Those protocols are as follows:
(1)There should be no communication with a Judge’s chambers, written or oral, without the prior knowledge and consent of all parties to the proceedings.
(2)The precise terms of a proposed communication with a Judge’s chambers should first be provided to the other parties for their consent.
(3)All written communications with a Judge’s chambers must be copied to the other parties.
(4)A statement should be included in the communication that it is sent with the consent of the other parties.
(5)The only exceptions to the above rules are where a communication relates to a trivial matter of practice, procedure or administration. This includes, for example, the start time or location of a matter or whether the Judge is robing, relates to an ex parte matter, responds to a communication from a Judge’s chambers or is authorised by an existing order or a direction of the Court. This may include, for example, the filing of material with a Judge’s Associate in exceptional circumstances.
(6)A communication which falls within the above exceptions must state why the communication has been sent without the consent of the other party or parties.
I would add that if consent to communicate with a Judge’s chambers cannot be obtained from the other party or parties, then the party seeking to communicate with the Judge should make a formal application for the matter to be listed before the Judge so that the argument that the party wishes to present can take place in open court. It goes without saying that open justice is a fundamental aspect of procedural fairness that is foundational to proceedings before all Australian courts.
Having noted those matters, in the circumstances where Mr Sirola stated that he expected a reply from the Court as to the listing of his application for an adjournment, and in circumstances where he is self-represented and perhaps did not understand the advice as to the formalisation of his application, I have acceded to Mr Sirola’s application for an adjournment of tomorrow’s hearing. The wife’s Application in a Case will accordingly be listed for hearing on 28 June 2016.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 16 June 2016.
Associate:
Date: 2 August 2016
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