SKIVINGTON & SKIVINGTON

[2018] FCCA 3952

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKIVINGTON & SKIVINGTON [2018] FCCA 3952

Catchwords:
FAMILY LAW – Application and response dismissed.

Applicant: MR SKIVINGTON

Respondent: MS SKIVINGTON

File Number: PAC 2601 of 2017

Judgment of: Judge Obradovic

Hearing date: 21 November 2018

Date of Last Submission: 21 November 2018

Delivered at: Parramatta

Delivered on: 21 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Hernandez

Solicitors for the Applicant: Dignan and Hanrahan Solicitors and Attorney

Counsel for the Respondent: Ms Vincent

Solicitors for the Respondent: Catton & Tondelstrand Lawyers

ORDERS

1. Dismiss the Initiating Application filed 26 May 2017 and the Response filed 17 August 2017.

2. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Skivington & Skivington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2601 of 2017

MR SKIVINGTON

Applicant

And

MS SKIVINGTON

Respondent

REASONS FOR JUDGMENT

1. On 21 November 2018 the Court dismissed the Initiating Application filed 26 May 2017 and Response filed 17 August 2017. The legal representatives for the applicant and the respondent engaged in discussions with the Court before the proceedings were dismissed. Those discussions were as follows:

   MS HERNANDEZ:   Thank you, your Honour.  Ms Hernandez appearing as agent on behalf of the applicant father and husband. 

   MS VINCENT:   Your Honour, Ms Vincent appearing on behalf of the respondent wife and mother as agent for Catton & Tondelstrand.

   HER HONOUR:   Both of the solicitors have sent agents without the clients, knowing that I wasn’t going to grant the adjournment. 

   MS VINCENT:   With respect to my client’s attendance, your Honour – she is based in Queensland, and I believe there’s material before the court attesting to an injury that she suffers which prevents travel.  I’ve got nothing further to say.

   HER HONOUR:   Fair enough, Ms Vincent.  Thank you for that.  Yes, Ms Hernandez.

   MS HERNANDEZ:   Yes, your Honour.  I can indicate it is our job to convince your Honour not to dismiss the application, which – I am instructed your Honour made comments in that vein on the last occasion.  I can indicate that the parties have attended mediation in between the last court date and this court date.  The mediation didn’t – if I could say – finalise, in the sense that the mediator had other commitments, and another mediation has been booked.  So essentially they’re partway through the mediation. 

   The second mediation has been booked for 10 December.  What arose from the first mediation – there were some valuation issues in respect of a car and in respect of the business.  Joint letters of instructions have now been sent to both of those.  They expect the valuations to be returned on 6 December, prior to 10 December.  And they are quite confident that the matter will settle.  I understand that neither party is pressing their parenting application.  Essentially, the children and the parties have worked that out themselves.  And it’s really the property matter that still remains on foot, essentially.  And that’s what the parties are seeking, to have the time to mediate one more time, or essentially finish the mediation that they commenced previously, with hopes of having terms.

   MS VINCENT:   Your Honour, the only thing that I can add to Ms Hernandez’s submissions is that mediation was originally scheduled for 8 November, to complete the process; however, due to the mediator’s other commitments, she wasn’t able to facilitate that date.  Therefore the parties haven’t been able to complete it.  But everything that Ms Hernandez has submitted, your Honour, is consistent with my instructions also. 

2. Brief oral reasons for those dismissals were given on the day and they are herein revised. 

3. On 3 July 2017, the Court made an order directing the parties to attend mediation “before the next Court event”. The proceedings were adjourned to 9.30am on 17 October 2017 for directions.  On 31 August 2017, due to a change in the Court diary, the listing on 17 October 2017 was vacated and the matter was listed instead at 11.30am on 31 October 2017.

4. On 27 October 2017, on the parties’ joint application made to Chambers, the listing on 31 October 2017 was administratively vacated to allow the parties’ further time to attend mediation as ordered on 3 July 2017. The next adjourned date was 9.30am on 2 March 2018, when the matter was listed for directions.

5. On 2 March 2018, the solicitor for the applicant mentioned the matter by consent. The matter was simply stood over for directions to 21 June 2018, and there was a notation that the parties have reached agreement about a valuation process and that same will be conducted in the interim and that the parties will be attending a further mediation in the interim to resolve issues. The matter was listed for directions at 11.30am on 21 June 2018.

6. On 2 May 2018, due to a change in the Court’s diary, orders were made in Chambers vacating the listing on 21 June 2018 and instead listing the matter for directions at 11.20am on 4 June 2018.

7. On 1 June 2018, the Court dealt with the matter in chambers vacating the listing on 4 June 2018 to allow the parties’ time to attend further mediation with a view of settling all outstanding issues. Once again, this was done on the parties’ joint application to Chambers. The matter was stood over for directions at on 31 August 2018. 

8. On 31 August 2018, the Court made orders by consent, inter alia, for valuation.  The orders by consent included an order that the parties shall attend mediation prior to the next mention date.  There was an order by the Court that there will be no further adjournments in this matter and that if the parties failed to prosecute their claim, the matter would be dismissed on the next occasion.  The matter was adjourned to 9.30am on 21 November 2018.

9. On 31 October 2018, for the third time, the parties’ applied jointly to Chambers to administratively adjourn the proceedings. It was explained that further meditation had not yet taken place, as required to be conducted pursuant to court orders.

10. The matter was listed on 21 November 2018 at 9.30am.  No evidence was tendered or relied upon on the adjournment application previously made to chambers.[1] As at 21 November 2018 the parties had yet to attend the mediation referred to in the notation made on 2 March 2018 and ordered by consent on 31 August 2018. No evidence was tendered or relied upon to explain why orders have not been complied with[2].

    [1] At times, the FCC tolerates joint applications for administrative adjournments being made directly to Chambers. This is done in order to facilitate a quick, just and cheap resolution of the dispute where appropriate and to reduce costs for the parties. Applications directly to Judge’s Chambers are generally not an appropriate manner to conduct proceedings.

    [2] Submissions made by the solicitor for the applicant that “… the parties have attended mediation in between the last court date and this court date” are not reflected by the Court record and previous representations made to the Court.

11. The parties have failed to prosecute the matter[3], and the Court therefore dismisses the initiating application and the response.

    [3] In a timely and appropriate way. The matter was commenced in May 2017. There have been numerous adjournments. Valuations had not yet been completed and the mediation had not yet been completed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 21 November 2018