Stephens and Stephens
[2011] FamCA 78
•9 February 2011
FAMILY COURT OF AUSTRALIA
| STEPHENS & STEPHENS | [2011] FamCA 78 |
| FAMILY LAW – PRACTICE AND PROCEDURE – where there are outstanding costs applications to be determined – where there is an application before the High Court seeking special leave to appeal – where the husband failed to attend the hearing – where the husband sent a letter to the Court advising he would not be attending – whether it was appropriate for such a letter to be forwarded to the Court – matter further adjourned |
| Family Law Act 1975 (Cth) |
| BuljubasicvBuljubasic (1999) FLC 92-865 |
| APPLICANT: | Mr Stephens |
| RESPONDENT: | Ms Stephens |
| FILE NUMBER: | MLF | 2847 | of | 2002 |
| DATE DELIVERED: | 9 February 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Ms Grobtuch |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
Orders
That this matter be further adjourned for mention to 9:30am (Melbourne time) on Thursday 28 April 2011.
That leave be given to both parties and their legal representatives to attend the said mention by way of telephone link.
That the application for costs made by the wife in relation to costs thrown away on 18 November 2010 and the costs of and incidental to the oral application for an adjournment made by Mr Stephens on 19 November 2010 be further reserved to the adjourned mention date.
IT IS NOTED that publication of this judgment under the pseudonym Stephens & Stephens is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
File Number: MLF 2847 of 2002
| MR STEPHENS |
Applicant
And
| MS STEPHENS |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This matter is before me again today having been adjourned on 19 November 2010. I am not going to repeat what occurred on 18 November and 19 November, save and except in one respect.
The position still in this case is that although the wife’s costs application is ready to proceed, in the sense that both parties have filed written submissions, Mr Stephens still has before the High Court an application seeking special leave to appeal against orders made by the Full Court of this Court on 27 October 2010. I understand, and it has been confirmed by Ms Grobtuch today, that that special leave application has not yet been heard by the High Court.
I confirm that I have been reluctant to adjourn the costs hearing, albeit there is that special leave application, but as Ms Grobtuch has again said today, she, on behalf of her client, takes a pragmatic approach and suggests again that the matter be further adjourned.
Mr Stephens has not attended today which concerns me greatly. I am aware that Mr Stephens forwarded a letter to the Court on 30 January 2011 addressed to my Associate and in that letter, in effect, he said two things. One is that he required that any further correspondence to him be sent by registered mail and two is that he purported to advise the Court that he would not be attending the hearing today. He enclosed what he described as submissions to be made at today’s hearing. For the purposes of today, I have sighted this letter and the submissions of Mr Stephens but I stress I do not propose to take them into account for reasons which I will explain in a moment.
The summary of what he says is that he has already made submissions in the matter, and he does not consider that the costs application should proceed whilst a special leave application is pending. He submits that the appropriate course is simply for the parties to be given liberty to bring the matter back once the High Court has determined his special leave application or, indeed, obviously if leave is given, determined the appeal.
Why I say that I intend to have no regard to those so-called submissions is that it is quite inappropriate for a litigant to forward letters of that nature to the Court when a court date has been set. There is clear authority from the Full Court of this Court about that process, namely, that it should not occur and I refer in particular to the decision of BuljubasicvBuljubasic (1999) FLC 92-865, where there was a communication with the Court via a facsimile and the Full Court took it upon itself to comment specifically on that approach.
Lindenmayer J said at 86,221:
29. Just before I come to that, I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial Judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
30. Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made.
At 86,224 Finn J said:
49. I would also want to endorse strongly the comments that have been made by the presiding Judge regarding the importance of adherence to the traditional practice that those who seek from the court an adjournment of their matter, should appear themselves, or by legal representative, to seek the adjournment. I deplore the apparently ever increasing practice of sending letters, faxes and telephone communications to the court for the purpose of seeking an adjournment.
Mr Stephens, in my view, if anyone, should be aware of the inappropriateness of sending a letter in this instance to the Court as he has done. He is someone who should be aware of that, and who I would expect to be aware of it. That is why I am particularly concerned that he has chosen to conduct himself in that way.
In the circumstances I proceed on the basis that he has not attended and that Ms Grobtuch has made her submission about how the matter should proceed, with which I agree. That is that there should be a further adjournment of the matter, but in an attempt to save time and money and effort, I propose to allow Mr Stephens – he is still representing himself – and the wife’s solicitor and/or counsel to appear by way of telephone on the adjourned hearing.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 9 February 2011.
Legal Associate:
Date: 18 February 2011
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