Aldana & Redstone

[2020] FCCA 3368

FEDERAL CIRCUIT COURT OF AUSTRALIA

Aldana & Redstone [2020] FCCA 3368

File number(s):	SYC 6606 of 2017
Judgment of:	JUDGE B SMITH
Date of judgment:	3 December 2020
Catchwords:	FAMILY LAW - property – practice and procedure – 3 year old matter – called over and given detailed directions for filing for a Compliance Check to allocate 2021 hearing dates 10 weeks later – at Compliance Check applicant wife entirely ready – respondent husband had filed no documents and given no explanation for failure to comply – wife seeks undefended hearing in written submissions – respondent is a legal professional – evidence from the bar table that he was engaged in a trial for 6 days of the 10 weeks and for an unspecified period of preparation – no satisfactory explanation –  after 3 years wife entitled to a final hearing rather than being put into a further call over – consideration of other litigants and use of public resources: Proceedings listed for Undefended Hearing.
Legislation:	Family Law Act 1975 (Cth) s 90SM
Cases cited:	Aon Risk Services Australia v Australian National University [2009] HCA 27 Allesch v Maunz [2000] HCA 40
Number of paragraphs:	23
Date of hearing:	3 December 2020
Place:	Sydney
Counsel for the Applicant:	Ms Wearne
Solicitor for the Respondent:	Mr Wilkie

ORDERS

SYC 6606 of 2017

BETWEEN:

MS ALDANA

Applicant

AND:

MR REDSTONE

Respondent

ORDER MADE BY:	JUDGE B SMITH
DATE OF ORDER:	3 DECEMBER 2020

THE COURT ORDERS THAT:

1.The matter be listed for undefended hearing on 23 February 2021 at 9:30am.

2.Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

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 under the pseudonym Aldana & Redstone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE SMITH:

1. These are proceedings for the alteration of property interests pursuant to section 90SM of the Family Law Act 1975 (Cth) arising out of a de facto relationship between the applicant wife, Ms Aldana, and respondent husband, Mr Redstone, which she says took place between 2002 and December 2016, and from which there are two children.

2. The matter, significantly, was commenced by the wife on 3 October 2017, more than three years ago.  This matter was listed today, or indeed yesterday and has been moved today, from a directions hearing on 24 September 2020 for a compliance check for allocation of a final hearing date.

3. The background to this process is that of the many matters said to be ready for hearing in my list, an issue about which it is not appropriate for me to comment further, but which is a significant number only the most urgent – unfortunately many of those matters being three and four years old – were selected for directions on that date for preparation for final hearing and mention in December.

4. So on 24 September 2020, of a very large number of matters, only the most urgent and oldest matters were selected to be given directions for preparation for hearing so they could be called over by me between the Wednesday and Friday this week between 2 and 4 December 2020. 

5. To maximise efficiency, and avoid the significant issues and delays faced by the Court when matters were given dates on the basis that they ‘will be ready’ for Hearing, only for the Court to find a large percentage of them were not ready and required adjournment shortly before or on the first day of the hearing, or else ran for a day or two and then the parties explained that they had all realised they needed another expert and the matter would be adjourned for further preparation for another date, and to avoid the issue of people seeking to jump the queue in the Family Court by having cases listed for three days in this court on a consent basis, only for it to emerge on day two or three, as it has happened to me on an unfortunate number of occasions over the last two years, that in reality it is a six or eight or ten day case and the parties then saying: ‘well, your Honour cannot throw away three days of hearing just because, unfortunately, we’ve underestimated the length of the case’ this system was introduced.   

6. The Court, or  many Judges of Court, have adopted this process of having a preliminary callover to identify the most urgent matters and then giving those most urgent matters specific directions for hearing so that they can come to a compliance check, which is what has happened with this matter today, so that the judge can know that the matter is in fact ready for hearing, and that the parties are ready to take a hearing date, and also that the case is an appropriate matter to be heard in this Court and isn’t in fact a ten-day matter which should be in the Family Court masquerading as a Federal Circuit Court case.

7. The matter was mentioned on 24 September 2020.  Both parties were legally represented, and I was told that this was an old and urgent matter requiring directions for final hearing. I made orders on 24 September 2020 and those orders speak for themselves. They are detailed orders to avoid the issues I have noted above. 

8. The matter was listed for hearing for compliance check today, and is one of many matters being mentioned across the course of three days of dealing with compliance for the purpose of filling my hearing calendar next year.  That is a significant matter, because if there are a lot of other urgent matters ready to go, and if this matter is not able to be allocated a date, then the likelihood, unless something falls out, is that this matter will not be given a hearing until 2022, by which stage the case will be almost five years old.

9. As I have said, detailed orders were made without any objection, with both parties legally represented on 24 September 2020. I also note that the husband is a legal professional of long-standing who must be taken to understand the effect of the orders that were made. The wife has complied. The husband has not complied. The wife is ready for a final hearing; the husband seeks further time for compliance. 

10. The difficulty is, as I have indicated, that if this matter is not allocated a date today, when there are other urgent matters, including urgent children’s matters which have to be weighed in the mix, then the likelihood is that the matter will not be heard until 2022.

11. No affidavit has been filed by the husband or his solicitors as to the failure to comply.

12. I was told from the bar table that the husband has been engaged in a complex criminal jury trial from, I think it was late 2020, and there is no doubt that a jury trial, in particular, is a demanding trial. Apparently it was listed for up to four weeks but it resolved when the accused entered a plea after one and a half weeks. There is no doubt that such trials are all-consuming, and anyone who has been involved in that kind of trial understands that you are thinking about it from the moment you wake until late at night, if you have a transcript and chance to read it before one goes to sleep, and then it occupies all the time available in a day, including weekends.

13. I was also told that there was also preparation.  The very specific questions I tried to ask about that preparation time did not get what I considered to be satisfactory explanations as to precisely when the husband was engaged in that preparation. I note that preparation can also be all-consuming. 

14. But the only things I know at the moment are that the husband was engaged, certainly, for a few days before preparing, then from late 2020. That is the context where the time for preparation was 25 September until today, a period of something like 10 weeks.

15. There is no suggestion that until today any attempt was made to contact the wife’s lawyers to explain what was going on, to see whether issues could be narrowed or the parties could reach agreement perhaps on the matter of court books being served up until the last few days, something that unfortunately parties have been doing which has complicated my preparation, but at least if everyone comes and I can see all the material on the day, people can get hearing dates, which is what has been happening.

16. The wife says the husband has not adequately explained his failure to comply, but he has a reason to delay the hearing, as he occupies the house, which is the sole major asset. She has spent more than $140,000 on the proceedings, as disclosed in her submissions. She says that it would be unjust to require further delay of the proceedings, even if an order was made for costs thrown away to be paid forthwith, particularly given that as I am in the process of allocating my 2021 hearing dates adjourning the proceedings is likely to, as I have indicated and as I said during the submissions to the parties, mean that this matter would not be heard until 2022, and it would be approaching five years old.

17. The wife also says that the husband has delayed during the proceedings, but there is no clear evidence of that before me today, so I do not take that into account. I merely note that the matter is more than three years old. It is a significant step to hear a matter on an undefended basis where one party seeks to engage, albeit late.

18. It seems to me that at a certain age, proceedings must be heard on that basis unless there is a very good reason not to. In my view, the husband today bears the legal and evidentiary onus to establish why, given the failure to comply with consent orders and given the age of proceedings, and taking into account not only the rights of the wife, but also the state of the lists, and the fact that the inclusion of this matter today meant that another matter was not included, there should not be an undefended hearing.

19. There are, I am not sure how many, but 40 or 60 other matters where people were hoping very much to get directions to be included in today’s callover so they could have a chance of a hearing date next year. The inclusion of this matter necessarily meant that one other matter wasn’t included, and it is not merely a question of the issue of the wife’s rights.  It is an issue of the appropriate allocation of a very, very scarce public resource. I refer to the principles in Aon Risk Services Australia v Australian National University [2009] HCA 27 and also what was said about the family law lists in Allesch v Maunz [2000] HCA 40 in the High Court of Australia, which applies both the question of public resources and also to the approach the Court can take when one party has not engaged.

20. I find that in the absence of evidence there is no proper explanation, noting that even accepting what I was told from the bar table I do not see how that is a satisfactory explanation, to come today with no notice to anyone of what is happening, for not having provided even a basic trial affidavit.

21. When a case has been on foot for three years, I just do not consider that the husband has come anywhere near meeting either the evidentiary or the legal onus required to satisfy me that there is an appropriate explanation for what has occurred. 

22. Accordingly, with some reluctance, but nevertheless bound as I am to do justice between the parties and being satisfied that justice between the parties requires the allocation of an undefended hearing, and also bound as I am to take into account not only what is just for these parties but what is just for the hundreds of other litigants waiting behind these parties in my list, and some of whose cases will inevitably be delayed if this case just goes back into the list, I am satisfied that the only just order I can enter today is an order the matter proceed to a final hearing on an undefended basis on one of the available dates I have next year.

23. Those are my reasons.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge B Smith.

Associate:

Dated:       9 December 2020