Sitwell and Sitwell

[2013] FamCA 151

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL [2013] FamCA 151

FAMILY LAW – PROCEDURAL – Adjournment application sought by husband – Wife opposed to any further adjournment application – Husband claimed ill health as reason unable to proceed – Adjournment application granted with a costs order made against the husband secured by way of a charge over the property

Angellini & Angellini (2011) FamCAFC 190
Tate & Tate (2000) FLC 93-047

APPLICANT: Mr Sitwell

RESPONDENT: Ms Sitwell

FILE NUMBER: PAC 5769 of 2010

DATE DELIVERED: 26 February 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 26 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT:

Mr Jamieson

Champion Legal

Orders

1. That no representative of the wife is to make contact with the husband’s lawyer initially.

2. That the letter from Champion Legal dated 19 February 2013 handed to me by the husband shall become Court’s Exhibit X in today’s proceedings.

3. That this matter shall be adjourned until 4.30 pm on Thursday 14 March 2013.

4. That the matter shall proceed on that day no matter what further circumstances arise nor what further reasons for adjournment may be provided by the husband.

5. That the husband shall pay the wife’s costs of today on an indemnity basis and I certify for counsel at the highest rate in that regard. Such costs shall be as agreed or assessed between the parties.

6. That those costs be secured by a charge over the property contained in folio identifier … when that title is transferred into the name of the husband in anticipation of the costs being assessed on an indemnity basis.

7. That an amount of $15,000 be part of the amount the subject of that charge pending agreement or assessment of the actual amount of costs to be paid.

8. That the costs awarded in this matter on 27 November 2012, in favour of the wife in the amount of $4,800 shall be, in addition to the provisional amount that I have ordered constitute a charge over the subject property, be also the subject of that charge. That charge may be protected by caveat that may be registered in respect of the title of that property when that property is transferred solely to the husband.

9. That the husband shall serve any material upon which he seeks to rely by 5 pm on Monday 11 March 2013. Provided that that material has been served in accordance with this order it may be filed in Court on the afternoon of 14 March 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell 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 PARRAMATTA

FILE NUMBER: PAC 5769 of 2010

Mr Sitwell

Applicant Husband

And

Ms Sitwell

Respondent Wife

REASONS FOR JUDGMENT

1. This matter came before me today, having been adjourned from a previous occasion.  The basis of the adjournment to today was to enable the husband, who again appears before me unrepresented, to obtain legal assistance and, as I understood it, for there to be an appearance by lawyers on his behalf in relation to this matter.

2. The matter was before me on 14 February 2013 when the wife was represented by Ms Kelly of Champion Legal.  The husband appeared in person.

3. This matter has a lengthy history.  Final Orders were made by Johnston J in respect of the property of the parties following the breakdown of their marriage.

4. The parties had entered into a contract for sale.  On 11 December 2012, I ordered that in the event that the contract for sale between the parties, as vendors, and the husband, as purchaser, in respect of Business G was not completed by close of business on Monday 11 February 2013 then the contract was to be terminated.  I further ordered that upon such termination, the wife was to be appointed as trustee for the sale of Business G to such persons as may seek to acquire that business.

5. The matter was next before me on 14 February 2013.  The husband sought to extend the time in which to deal with the Orders made by me in December 2012.  His application was lodged on the very last day for the doing of things, that is to say, on the 11^th of February.

6. On 14 February 2013, the matter was stood in the list on several occasions, but particularly, shortly after 1.00 pm, it was stood in the list until after 2.15 pm to enable the husband to endeavour to engage legal representation.

7. Following the luncheon adjournment on that day, the husband informed me that he had spoken to Mr Richardson of Senior Counsel, and Mr Byrne, a solicitor, who were to become his legal team in respect of the matter.  After some discussion as to suitable dates, the matter was stood over until today.

8. The husband appears today yet again without legal representation.  He informs me, from the bar table and with no evidence, that the reason Mr Richardson and/or Mr Byrne have refused to act for him further is a result of material that he alleges was improperly made available to Mr Byrne concerning his financial affairs by Ms Kelly.

9. As I understand it, he seeks a further adjournment so as to obtain legal representation.  During the course of the day, he told me that he had spoken to a Mr Peter Proctor, a solicitor practising in Parramatta, who has agreed to act for him, and who, significantly, has agreed that he can be available on 14 March 2013, a date which appears suitable, if I grant an adjournment, for all parties.

10. It also appears that the husband is saying that he is unable to actively participate in today’s proceedings because he is suffering a migraine, or at least the onset of a migraine, headache.

11. I was not the primary Judge in this matter.  I have, however, looked at what might be described as the benchsheets to try and obtain for myself a background to this matter.  The benchsheets indicate that on a number of occasions the very same thing that has happened today happened in the past; that is, the father filed an application and on its return either did not appear or sought that the matter be adjourned because of ill health.

12. Any application for adjournment has been opposed in the strongest possible terms by Mr Batey for the wife.  He has referred me to the case of Angellini & Angellini[1], a decision of Strickland J sitting as the Full Court in an appeal from a Federal Magistrate.  It is clear that that case would indicate that the Court should be loathed to grant adjournments in a situation such as this because the end can never be foreseen if the adjournments are allowed to continue.

    [1] (2011) FamCAFC 190

13. While I have no medical evidence from the husband, I am prepared to accept, for the purpose of today, that he is either suffering from, or aware of the onset of, a migraine headache which renders him unable to properly represent himself.

14. If the adjournment is granted, I have absolutely no doubt that it is going to be at significant cost to the wife in a situation where the husband will, I am satisfied, do all he can to avoid payment of any sum, made by way of costs, at least for the foreseeable future.

15. The only way in which I believe I can have any confidence that there might be some method of recourse is for a charge, protected by caveat, to be placed upon a property that is to be transferred into the husband’s name.

16. In all the circumstances of this case, and as I have expressed before, with some real misgiving as to what the real utility of an adjournment is, I propose to allow the matter to be adjourned until 14 March 2013.  However, I will make a number of orders as to what is to occur on that day, and I will make consequential orders in respect of the situation of costs.

17. I draw a parallel with cases such as Tate & Tate[2]. While in that case, the Full Court were dealing with what might be seen to have been a failure to comply with procedural orders, they dealt with a situation in which they found, simply put, that time had run out for the husband.  Accordingly, he was not allowed any further chances.  His material was struck out and the matter proceeded on an undefended basis.

    [2] (2000) FLC 93-047

18. The orders that I make are set out at the forefront of these reasons for Judgment.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 26 February 2013.

Legal Associate:      

Date:    14 March 2013