YORK & ALLMAN

[2015] FCCA 3211

FEDERAL CIRCUIT COURT OF AUSTRALIA

YORK & ALLMAN [2015] FCCA 3211

Catchwords:
FAMILY LAW – Practice and procedure – failure of solicitor on record to appear.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.9

Applicant: MR YORK

Respondent: MS ALLMAN

File Number: MLC 5479 of 2015

Judgment of: Judge Harland

Hearing date: 19 November 2015

Date of Last Submission: 19 November 2015

Delivered at: Melbourne

Delivered on: 19 November 2015

REPRESENTATION

Counsel for the Applicant: Ms Walters

Solicitors for the Applicant: Lampe Family Lawyers

Counsel for the Respondent: No appearance

Solicitors for the Respondent: Zindilis Lawyers

ORDERS

1. The proceeding is adjourned for an undefended hearing on

   
   

   11 December 2015 at 9:15am.

2. The father is to file an application and updated affidavit by 30 November 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5479 of 2015

MR YORK

Applicant

And

MS ALLMAN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. Ms Walters appears today acting for the applicant father.  I made orders by consent on 25 August 2015 providing arrangements for the five children, four of whom were living with the father and the youngest, X, living with the mother.  The mother is represented by Zindilis Lawyers at 833 Pascoe Vale Road, Glenrowan, Victoria.  They filed a notice of address for service on the day of the interim hearing on 25 August 2015.  The mother has not filed any documents in response to the father’s application.

3. I am informed by Ms Walters that shortly after these orders were made the mother relinquished the care of X to the father and advised the father that she would not participate further in the proceedings.  Therefore, the Family Dispute Resolution Conference which was to take place before today has not taken place.  The mother’s solicitors, who are still on the record, only informed Ms Walters yesterday that they had no instructions and would not be attending Court today.

4. Lawyers who are on the record for clients must appear in Court at all attendances. It is utterly unacceptable to leave it to the last moment to inform the other lawyer that they will not be attending. Unless and until a notice of ceasing to act is filed, it is incumbent upon the solicitor to attend Court, even if it is only to seek permission to withdraw, which is readily given when a lawyer has no instructions. There is no evidence of any compliance with rule 9 of the Federal Circuit Court Rules 2001 (Cth). The applicant has incurred costs today that may have been avoided if the lawyers for the respondent had given notice earlier. The conduct of the respondent’s lawyers and the discourtesy to the Court to appear is unsatisfactory.

5. I am going to list this matter for an undefended hearing on 11 December 2015 at 9:15 am.  The father intends to amend his application and file a brief updating affidavit as to the current circumstances of the children. I will direct that the father file the application and updated affidavit by 30 November 2015. If the mother does not attend Court and has not filed documents before 11 December 2015, the matter will be finalised on that day in her absence.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  2 December 2015