Aarons & Aarons
[2022] FedCFamC1F 294
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aarons & Aarons [2022] FedCFamC1F 294
File number(s): MLC 6647 of 2021 Judgment of: WILSON J Date of judgment: 28 April 2022 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – trial fixed to commence on 16 May 2022 – late applications for various evidentiary orders. Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 27 April 2022 Place: Melbourne Counsel for the Applicant: Mr P. Bick QC Solicitor for the Applicant: Strongman & Crouch Counsel for the Respondent: Mr B Geddes QC with Mr C Nehmy Solicitor for the Respondent: Hargreaves Family Lawyers ORDERS
MLC 6647 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AARONS
Applicant
AND: MS AARONS
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The date in paragraph 20 of the consent orders made by me on 1 February 2022 is amended from 2 May to 6 May.
2.The date in paragraph 21 of the consent orders made by me on 1 February 2022 is amended from 9 May 2022 to 10 May 2022.
3.The first date mentioned in paragraph 26 of the consent orders made by me on 1 February 2022 is amended from 2 May 2022 to 10 May 2022 and the second date mentioned in that paragraph of those orders is amended from 9 May 2022 to 11 May 2022.
4.On or before 4:00pm on 29 April 2022 Queen’s Counsel for the parties must confer in relation to each of the paragraphs 1 to 7 of the husband’s application sealed on 26 April 2022 and also in relation to the wife’s application in the proceeding dated 27 April 2022.
5.On or before noon on 4 May 2022, the wife must file and serve any affidavit material upon which she relies in opposition to the husband’s application in a proceeding sealed 26 April 2022.
6.On or before noon on 4 May 2022, the husband must file and serve any affidavit material on which he relies in opposition to the wife’s application in a proceeding dated 27 April 2022.
7.I fix the hearing of the husband’s application in a proceeding sealed 26 April 2022 and the wife’s application in a proceeding dated 27 April for 6 May 2022 from 8:00am to 9:30 am, then from 1:00pm to 2:00pm, then from 4:00pm to 6:00pm.
8.I reserve costs of and incidental to the hearing before me on 27 April and this day and I certify for counsel, including Queen’s Counsel.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aarons & Aarons is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
The trial of this proceeding is fixed for 16 May 2022, a little over two weeks away. The proceeding is in the Major Complex Financial Proceedings List of this Court.
At the request of the husband’s solicitors, an urgent hearing was convened on 27 April 2022 for the purpose of considering directions to address the husband’s application in a proceeding filed 22 April 2022 and sealed by the Court at 11:00am on 26 April 2022.
The wife said she was short-served and wanted an opportunity to respond to the husband’s material so as to properly present her version of events in response to the husband’s application. The wife asked for orders to be made varying the consent orders I made on 1 February 2022, in which trial orders and directions were made by agreement.
On behalf of the husband, Mr Bick QC submitted that the husband wishes to preserve the trial date of 16 May 2022.
These reasons explain why in my view –
(a)the date in paragraph 20 of the consent orders made by me on 1 February 2022 is amended from 2 May to 6 May.
(b)the date in paragraph 21 of the consent orders made by me on 1 February 2022 is amended from 9 May 2022 to 10 May 2022.
(c)the first date mentioned in paragraph 26 of the consent orders made by me on 1 February 2022 is amended from 2 May 2022 to 10 May 2022 and the second date mentioned in that paragraph of those orders is amended from 9 May 2022 to 11 May 2022.
(d)on or before 4:00pm on 29 April 2022 Queen’s Counsel for the parties must confer in relation to each of the paragraphs 1 to 7 of the husband’s application sealed on 26 April 2022 and also in relation to the wife’s application in the proceeding dated 27 April 2022.
(e)on or before noon on 4 May 2022, the wife must file and serve any affidavit material upon which she relies in opposition to the husband’s application in a proceeding sealed 26 April 2022.
(f)on or before noon on 4 May 2022, the husband must file and serve any affidavit material on which he relies in opposition to the wife’s application in a proceeding dated 27 April 2022.
(g)I fix the hearing of the husband’s application in a proceeding sealed 26 April 2022 and the wife’s application in a proceeding dated 27 April for 6 May 2022 from 8:00am to 9:30 am, then from 1:00pm to 2:00pm, then from 4:00pm to 6:00pm; and
(h)I reserve costs of and incidental to the hearing before me on 27 April and this day and I certify for counsel, including Queen’s Counsel.
APPLICATION TO AMEND THE CONSENT TRIAL ORDERS
This proceeding has been fixed for a 10 day trial, as was recorded in paragraph 16 of the 1 February 2022 consent orders. Pursuant to other paragraphs of the 1 February 2022 consent orders –
(a)the husband was to file and serve any amended application, affidavits of evidence-in-chief, plus his updated financial statements by 4:00pm on 12 April 2022;
(b)the wife was to file and serve any amended response, affidavits of evidence-in-chief plus her updated financial statement by 4:00pm on 2 May 2022;
(c)the husband had until 4:00pm on 9 May 2022 to file any reply affidavits, that is to say, those in reply to the wife’s affidavits; and
(d)by 4:00pm on 13 May 2022, both parties were required to file and serve the outline of case of each.
Without objection, emails passing between the solicitors for the parties on 11 and 12 April 2022 were put before me. The matters described below emerged from that email chain.
At 6:43pm on 12 April 2022, the husband’s solicitors emailed the wife’s solicitors stating that the husband would not be in a position to file and serve documents enumerated in paragraph 18 of the 1 February 2022 orders, including the husband’s evidence-in-chief, and that the husband expected to file and serve documents set out in paragraph 18, by 14 April 2022.
At 1:37pm on 12 April 2022, the wife’s solicitor replied to the husband’s email dated 6:43pm on 11 April 2022 and the wife’s solicitor stated that the wife required strict compliance with the orders made on 1 February 2022. The wife’s solicitor stated in that email that the husband’s trial material is to be provided by 4:00pm that day, that is to say, on 12 April 2022.
At 4:16 pm on 12 April 2022, the husband’s solicitor sent an email to the wife’s solicitor. Some of the more pertinent matters raised were as follows –
(a)the husband expected to file documents in accordance with paragraph 18 of the 1 February 2022 orders by 4:00pm on Thursday 14 April 2022, that is to say, 48 hours after the date stipulated in paragraph 18 of the 1 February 2022 orders;
(b)the husband took the view that strict compliance with the 1 February 2022 consent orders was unreasonable, uncooperative and inconsistent with the wife’s obligations under s 68 of the Federal Circuit and Family Court of Australia Act, and under rule 1.042 of the Federal Circuit and Family Court of Australia (Family Law) Rules (“the Rules”);
(c)the husband also took the view that he had a proper basis to suggest that the wife’s solicitor may be acting contrary to her obligations under rule 1.043 of the Rules;
(d)the reasons why the husband sought the additional 48 hours within which to file and serve his trial material included the complexity of issues to be addressed in his affidavit material, the number of other tasks to which he was concurrently attending in his trial preparation, matters to which he was required to attend in order to settle related Supreme Court of Victoria litigation, the fact that his junior counsel was on leave during that week and a number of pressing business commitments unrelated to this family law litigation; and
(e)if the wife insisted on the husband applying to the Court to extend the dates for compliance with the relevant order of the 1 February 2022 orders, then the husband would seek costs.
Less than an hour later, at 5:00pm on 12 April 2022 (the 4:00pm deadline having come and gone) the wife’s solicitors sent an email to the husband’s solicitor. In it, Ms Hargreaves said the following –
Given that the proposed delay by your client if he files by 4 pm Thursday will afford the wife less than a couple of hours before the Easter long weekend, our client consents to the proposed delay, provided that the deadline for our clients [sic] filing is delayed until 5 pm on 5 May. We suggest that your client’s reply then be filed by 4 pm on 10 May 2022.
The unavailability of junior counsel for the wife was then set out for the period until 4 May 2022.
The solicitor for husband rejected that proposal by email to Ms Hargreaves sent at 6:00pm on 12 April 2022. In that email, Mr Bailey, the husband’s solicitor, stated that the husband agreed to no more than a 48 hour extension, meaning that he agreed to the wife filing her material by 4 May 2022 but not later.
Mr Geddes QC for the wife handed up revisions to the dates ordered in the 1 February 2022 consent trial orders. Those are addressed below.
According to an aide mémoire prepared by the counsel for the wife, as at 9:41pm on Thursday, 14 April 2022 the husband purported to file and serve his trial affidavit. The wife’s counsel argued that as that affidavit material was filed and served at a time when the registry was closed, the documentation was to be taken to have been filed and served on the next business day when the registry was open, namely, 19 April 2022. Counsel for the wife submitted that the husband’s trial material was required to have been filed and served by 12 April 2022, it was taken to have been filed and served on 19 April 2022, so the husband’s trial material is therefore seven days late.
At 6:24pm on 20 April 2022, the husband filed his amended application. That document was required to have been filed and served by 4:00pm on 12 April 2022 to comply with paragraph 18 of the 1 February 2022 consent orders. Counsel for the wife submitted in their aide mémoire that by reason of the amended reply having been filed after the registry was closed on 20 April 2022, the document was to be taken as having been filed on the following day, namely, 21 April 2022, thereby rendering the filing 10 days late.
At 5:06pm on 21 April 2022, the husband purported to file his financial statement. That document had to be filed on 12 April 2022 in order to comply with the 1 February 2022 orders. As the registry was closed when the financial statement was purportedly filed, it was to be taken as having been filed the following day, namely, 22 April 2022, rendering it late by 11 days.
There appeared to be no dispute about the dates and times of the filing of the husband’s amended application, his updated financial statement or his trial affidavit material. In respect of all he was late. In respect of none of those three categories of documents did the husband’s filing time correspond to the time limited by the terms of paragraph 18 of the consent orders made on 1 February 2022.
On behalf of the husband, Mr Bick QC submitted that as his case is in the Major Complex Financial Proceedings List, a cooperative approach by the parties is expected. He submitted that the husband wants the trial to go ahead on the date presently fixed, namely, 16 May 2022, and that the wife ought to be able to absorb any slippage in strict compliance with the filing dates as she is well resourced in this litigation.
Unless filing dates applicable to the wife are extended, then pursuant to paragraph 20 of the 1 February 2022 consent orders, the wife is required to file her amended response by 4:00pm on 2 May 2022.
Counsel for the wife relied on a minute of orders which the wife proposed on this directions hearing. In that minute, the wife proposed a variation of the date presently ordered for the filing of her documentation in accordance with paragraph 20 of the 1 February 2022 orders, replacing 2 May 2022 with 6 May 2022, a Friday. She also suggested that the date for the filing and service of the husband’s reply evidence be moved from 9 May 2022 to Tuesday 10 May 2022, and that on the same day, that is to say, 10 May 2022, the husband file and serve on the wife a proposed draft court book index.
Those modifications to paragraphs 20, 21 and 26 of the 1 February 2022 orders are modest, in my view. They recognise that for a variety of reasons, dates previously agreed for the parties to take certain steps in this litigation need adjusting. In this case, it must not be overlooked that the husband gave as one of his reasons for being unable to meet the 12 April 2022 deadline for the filing of his material was his being involved in the resolution of Supreme Court litigation as well as being required to attend to “a number of pressing business commitments unrelated to the present proceeding”. While I recognise that the husband’s business interests are very considerable and that matters beyond this litigation demand his attention from time to time, by the same token, any failure on the husband’s part to meet a deadline ordered in the 1 February 2022 consent orders will occasion a commensurate extension of dates consequent upon his own delay. He was late in complying with the date for the filing of the affidavit, his amended application and the updated financial statement. Whether “pressing business commitments” beyond this litigation were causes of those delays was not said. However, it would be quite wrong for the husband to be dilatory in his compliance with certain filing obligations, yet for him to insist on there being no corresponding adjustments to dates on which the wife must undertake filing tasks consequent upon her receipt from the husband of documents he was required to file and serve.
In his submissions on this directions hearing, Mr Bick QC relied on public statements made by the Court about the operation of the Major Complex Financial Proceedings List and, in particular, how cases would push forward requiring on occasion, legal practitioners to work on weekends, public holidays and school holidays. Mr Bick QC’s submissions accord with the manner in which I will be dealing with cases in this list. It will not be a sufficient reason for non-compliance with dates by which steps are to be done in accordance with previous orders to suggest, for example, counsel or solicitor unavailability by reason of vacational commitments.
The public interest in litigants enjoying the timely and efficient dispatch of business in cases in the Major Complex Financial Proceedings List underpins the philosophy of the operation of this list, of course subject to the observations expressed in such cases as Aon Risk Services Australia Ltd & Australian National University[1] and others about the need for case management principles to be subordinated to principles of the justice of the circumstances.
[1] (2009) 239 CLR 175.
In my view, by reason of the husband’s delay in complying with the dates on which he was required to file and serve his trial material, his amended application and his updated valuation, the wife should have the benefit of a new date for her to file and serve her trial material, her amended response and her updated financial statement. The date proposed is 6 May 2022. The existing date is 2 May 2022. In my view, the new date is appropriate and I make an order correspondingly amending paragraph 20 of the 1 February 2022 orders. Similarly, the husband should have the benefit of the weekend plus one further working day. Accordingly the date in paragraph 21 of the 1 February 2022 order is amended to 2 May 2022, as is the first date mentioned in paragraph 26. The date for the provision for the proposed court book index currently ordered for the husband to provide it by 9 May 2022 is extended to 11 May 2022.
THE HUSBAND’S APPLICATION FILED 22 APRIL 2022
On 22 April 2022, the husband filed (sealed in the morning of 26 April 2022) an application in a proceeding in which he sought orders in accordance with nine separate applications. In the majority of those applications, he sought orders compelling the wife to do the things he sought by 4:00pm on 3 May 2022. In précis form, the husband sought in that application –
(a)orders requiring the wife to make an affidavit providing “a complete summary with supporting documentation of the assets and liabilities of the [N Company] Group, including all entities and trusts comprising the [N Company] Group but limited” to various entities;
(b)orders requiring the wife to provide full particulars of and an explanation of 13 items recorded as (a) to (m) in the application and in the financial statements of the N Company Group, including how each such line item is calculated;
(c)orders requiring the wife to make full disclosure in non-redacted form of the wife’s late mother’s will and codicils, along with the wife’s father’s will with inventory of asset details in the father’s will;
(d)orders for the appointment of F Company as a single expert to value certain properties, real estate in Suburb L, a building in G Town, real estate in Suburb M and real property owned by the N Company Group;
(e)orders for the provision of a copy of the lease on which the E Town business is conducted;
(f)orders for the provision of full disclosure in relation to overseas assets of the N Company Group;
(g)orders for the provision of full disclosure in relation to the P Trust; and
(h)orders for the provision of full disclosure in relation to each investment property owned by the N Company Group with property address details, encumbrances, latest valuations of each, latest council rates of each and details of development approvals.
The husband made an affidavit in support of his various applications recorded immediately above. It was sworn on 22 April 2022. Counsel for the wife told me she needed time within which to respond to the husband’s application sealed on 26 April 2022 and to his affidavit. That seemed a realistic approach. The trial is to commence on 16 May 2022. That leaves very little time within which to hear and determine the husband’s application. Among the issues he raises is an application for the appointment of a single expert. Even if the husband were successful in obtaining an order for the appointment of that single expert, absent consent or the contraction of time, the regime prescribed by part 7 of the Rules invokes a timeline that is likely to be greater than the available time between this day and 16 May 2022. Aside from wondering how that is to be accommodated, it is best I say no more about that now.
The wife’s counsel suggested directions to advance the husband’s application in a proceeding filed on 22 April 2022 and sealed 26 April 2022. They urge me to list this case for a contested interlocutory application on a date not earlier than 11 May 2022. Recognising that the wife needs to file responding material, two things must be said of the dates proposed by the wife. First, her affidavit material need not take until 11 May 2022 to prepare. In relation to many documents the husband seeks, she is likely to not have them or she is likely to not have access to them. While the husband’s application may be objectionable for one reason or another, that should be flushed out sooner than later, initially by a conference between Queen’s Counsel and for the parties.
To that end, I direct that Queen’s Counsel for the parties confer by 4:00pm this Friday, that is to say, tomorrow, 29 April 2022 in relation to each paragraphs 1 to 7 of the husband’s application sealed 26 April 2022. In that conference, the parties must identify which item of information or document in each paragraph or subparagraph of the husband’s application the wife is willing to provide and by when. She may provide some or none. If she indicates she is willing to supply none, then the following directions will apply –
(a)on or before noon on Wednesday 4 May 2022, the wife must file and serve any affidavit material on which she relies in opposition to the husband’s application in a proceeding; and
(b)the hearing of the husband’s application in the proceeding is fixed for 6 May 2022 from 8:30am to 9:30am, then from 1:00pm to 2:00pm, then from 4:00pm to 6:00pm.
THE WIFE’S APPLICATION DATED 27 APRIL 2022
By application in a proceeding dated 27 April 2022, the wife sought orders pursuant to rule 7.10(1) of the Rules for leave to allow the wife to rely on the Actuarial Project Report dated 26 April 2022 prepared by Ms O of Q Consultants.
Ms Hargreaves made an affidavit in support of her client’s application, such affidavit being sworn on 27 April 2022 with documents exhibited thereto. The husband has not provided any responding affidavit material.
The same observations as are made above in relation to Queen’s Counsel conferring about the husband’s application apply to the wife’s application. If the husband challenges the leave sought by the wife, then –
(a)he must file and serve any affidavit material on which he relies in opposition of the orders sought by noon on Wednesday 4 May 2022; and
(b)the hearing of the wife’s application in a proceeding dated 27 April 2022 is fixed for 6 May 2022 from 8:00am to 9:30am, then 1:00pm to 2:00pm, then 4:00pm to 6:00pm.
A FINAL WORD
The parties and their legal advisers have worked well from the date on which this proceeding was transferred to this Court. It is far from uncommon that in the lead-up to a trial of complicated litigation, of the sort in issue in this case, while all parties’ minds are focused on preparation, applications arise calling for urgent dispatch by the Court. The philosophy of the Major Complex Financial Proceedings List proceeds on the assumption that parties work cooperatively with the Court to get cases to trial quickly, cost effectively and with an eye keenly attuned to the overarching obligations on litigants under the provisions of the Federal Circuit and Family Court of Australia Act.
Counsel for the husband relied on the words of the Chief Justice that cases in the Major Complex Financial Proceedings List are to be dealt with as expeditiously as possible. The same expediency is expected of legal representatives and their clients.
Costs of and incidental to the interlocutory mention on 27 April 2022 and of today are reserved, and I certify for counsel, especially for the appearance of Queen’s Counsel.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 28 April 2022
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