Aarons & Aarons (No 3)
[2022] FedCFamC1F 334
•9 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aarons & Aarons (No 3) [2022] FedCFamC1F 334
File number(s): MLC 6647 of 2021 Judgment of: WILSON J Date of judgment: 9 May 2022 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL LIST – application to adjourn the trial of this proceeding – orders made for the filing of material in support of application. Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 9 May 2022 Place: Melbourne Counsel for the Applicant: Mr P. Bick QC with
Mr A. BarbayannisSolicitor for the Applicant: Strongman & Crouch Counsel for the Respondent: Mr B. Geddes QC with
Mr C. NehmySolicitor 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:
9 MAY 2022
THE COURT ORDERS THAT:
1.Any affidavit or affidavits on which the husband relies in support of his adjournment application must be filed and served by noon on 11 May 2022.
2.Any affidavits in opposition to the husband’s application for an adjournment must be filed and served by noon on 13 May 2022.
3.The further hearing of this proceeding is adjourned to the commencement of the trial on 17 May 2022.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Soon after delivering reasons for judgment this morning on a peripherally related issue, I was told that material that had been ordered to be filed and served on behalf of the wife had been served and filed late. The delay was not contumelious, but it was nevertheless outside of the time prescribed by earlier orders. In fairness, advance notice of the fact that the delay was likely had been given but, nevertheless, the affidavits were filed and served after the dates limited by previous orders. Counsel for the husband, Mr Bick QC, informed me that the material that was filed and served as representing the wife’s trial affidavit material and other affidavit material was substantial and raised issues that caused concern in the husband’s camp at a forensic and evidentiary level. He said that issues that had not been factored into being matters in dispute were or might be contentious and that he needed time to not only consider that material but also, possibly, to respond to it.
After giving the parties an opportunity to consider their respective positions and for counsel to confer, I adjourned the further hearing of the matter until 3:00pm today. At 3:00pm today I was told that the position of the husband had not changed and that he was now in such a position that he did not wish the trial of this proceeding to go forward on Monday 16 May 2022 despite earlier statements to the effect that he wanted the trial to go ahead on that day. Queen’s Counsel for the parties agreed that it was desirable for last minute attempts to be made to explore resolution of the proceeding by mediation.
At high speed, the parties have been able to secure the services of a former judge of this Court to mediate this litigation on the day otherwise allocated for the first day of the trial. Thereafter, the parties have become entrenched as to the “what ifs”, namely what is to be the course of conduct if the case does not resolve. On behalf of the wife, Mr Geddes QC pressed with some force that the case should go ahead, commencing one day after its start date, that is to say, the trial would commence on 17 May 2022 and thereafter run its course. On behalf of the husband, Mr Bick QC opposed that and instead took up the offer earlier mooted for an alternative trial date over 10 days spanning 8 to 12 August 2022 and then 15 to 19 August 2022, 10 days all up.
Mr Geddes QC opposed that saying that the litigation has been on foot in various courts for long enough that the time has been reached for the case to begin. In discussions with counsel, I explored the reasons for the request for the adjournment as indeed, I explored the reasons for the opposition to the adjournment and I confess to being no better informed and none the wiser or more edified as to the factual and consequential legal circumstances that give rise to the application. I invited Mr Geddes QC to consider whether he wanted to see affidavit material on which the application to adjourn was based. After initially saying that such a concept met with some approval he conferred and then adopted a position that he wanted the application for adjournment to be dealt with this moment. It seems to me that I am not in a position to fully understand the ramifications of the adjournment application. I sympathise with the position of the wife who was, in the interlocutory phases of this case, represented by Mr Dickson QC. He said she would do her best to comply with the orders that were made on the urgings of the husband for the case to be fast-tracked to trial. It turns out that on the eve of the trial the husband has recanted in his vigour to fast-track the case and now wants to adopt a more considered position.
Of course, that is his entitlement. But it has to be balanced by a consideration of all the circumstances set out in Aon Risk Services Australia Ltd v Australian National University.[1]
[1] (2009) 239 CLR 175 (“Aon Risk Services”).
The mediation should proceed.
Undoubtedly, there is a great deal of merit in the concept that a last ditch effort should be made to explore the resolution of the case. Mr Bick QC suggested the case can be mediated at a high level. That is probably right, although the minutiae for which he seeks the adjournment will not be available at a factual level in order for those matters to be “put in the mix” at the mediation. History shows that the best prospects of achieving a successful result at mediation is when all the evidence is available and in the possession of parties for their consideration.
That is unlikely to be the case for a mediation on 16 May 2022. Be that as it may, the parties have been wrestling with the substrata of facts in this case for long enough for them to know where the battle lines are drawn and whether any concessions or agreements can be reached to advance this case to resolution. Not only should that be commended, but all efforts should be made to take the case to that point. There remains the somewhat more imponderable question of the consequences of the failure of the mediation. I do not want to second guess the success of the mediation, but if history is any guide, one would be entitled to be pessimistic about the prospects.
It would therefore appear that any consideration of the ongoing skirmishing in this case will take on a dimension that, according to Mr Bick, follows from the provision by the wife of her trial material. In those circumstances, it seems to me that it would be prudent to act cautiously and to do no more than to adjudicate upon what is presently real as opposed to hypothetical or full of conjecture and to go therefore no further than ordering the mediation to take place on 16 May 2022.
In proceeding further with orders thereafter, I work on the basis that the mediation is unsuccessful and therefore there will need to be a consideration of the true factual reasons behind the need for any adjournment. That is of considerable importance given that Mr Geddes QC has already foreshadowed the personal inconvenience of the wife’s preferred choice of counsel on the nominated dates in August 2022. Availability and convenience of counsel has never been a matter with which I find favour and I doubt that it ranks at all in the considerations suggested by Aon Risk Services as grounding the justice of circumstances to be entertained in an adjournment application. That said, precisely how and in what way the husband is inconvenienced by the late provision of the wife’s material has not, at least to my way of thinking on this day, been adequately informed.
I will require affidavit material, irrespective of the expense that that may occasioned and in the circumstances of this litigation is likely to be trivial, to record the precise reason for the need for the material, the manner in which that material was not previously available, the consequences on a timeline to the ongoing conduct of this case, the legal significance of the request for that further affidavit material and the impact on a resumption date.
In those circumstances I order that any affidavit or affidavits on which the husband relies in support of his adjournment application are to be filed and served by noon on Wednesday 11 May 2022. Any affidavits in opposition to the husband’s application for an adjournment must be filed and served by noon on Friday 13 May 2022.
The further hearing of this proceeding is adjourned to the commencement of the trial on 17 May 2022 for consideration of whether the trial should in fact commence or be adjourned to 8 to 12 August 2022 and thereafter 15 to 19 August 2022 or to such further or other day as may be agreed or ordered. To that end, I am willing to entertain an order that the costs of and incidental to today are reserved.
Of course, those orders are made consequent upon a consent order being made in this proceeding, to go to mediation before the Honourable Michael Kent on 16 May 2022 and if the parties so agree thereafter for such a longer period as may be agreed.
The parties should proceed on the basis that by no means is the adjournment of this proceeding a foregone conclusion. To the contrary, as things presently stand, the trial will proceed on Tuesday 17 May 2022 unless sufficient circumstances are urged and found to adjourn it on legal principle. As to the resumption date, I am not willing to go beyond the August dates previously mentioned and if some other indulgence is sought I will need to hear about it on proper material on 17 May 2022.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 9 May 2022
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