Angliss and Angliss (No 3)

[2016] FamCA 1138

FAMILY COURT OF AUSTRALIA

ANGLISS & ANGLISS (NO 3) [2016] FamCA 1138

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Whether applications contained in the wife’s Response to the husband’s Application in a Case should be adjourned – Where the husband has not had the time to read and formulate a response to the orders sought – Where the orders could not be heard and determined in accordance with procedural fairness.

Family Law Act 1975 (Cth)

APPLICANT: Mr Angliss

RESPONDENT: Ms Angliss

FILE NUMBER: BRC 1878 of 2015

DATE DELIVERED: 26 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson QC

SOLICITOR FOR THE APPLICANT: MacDonnells Lawyers

COUNSEL FOR THE RESPONDENT: Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim Lawyers

Orders

1. That the husband’s oral application for an adjournment of that part of the wife’s response that raises new issues by application, is granted.

2. That the matter is adjourned for further hearing in the Judicial Duty List before his Honour Justice Forrest commencing at 10.00 am on Monday, 12 December 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Angliss & Angliss (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1878 of 2015

Mr Angliss

Applicant

And

Ms Angliss

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Today in the duty list before me, in substantive property adjustment orders proceedings between these two parties that have now been in this Court for some time and been litigated on an interim basis on a number of occasions over the last 12 months, is another Application in a Case in the matter, this time filed on behalf of the husband on 29 August 2016.  In that Application in a Case the husband seeks four particular orders. 

2. When the matter was filed it was listed for today, which is less than one calendar month after the date of its filing.  On 21 September 2016, only Wednesday of last week, less than three clear working days before today, the wife caused to be filed a Response to the husband’s Application in a Case, in which she simply seeks in response to the four orders that he seeks, an order that his Application in a Case filed 29 August 2016 be dismissed. Thereafter, she seeks eight substantive interim orders that relate to a number of separate issues. They are, namely: the payment of legal costs in which she seeks the payment of $415,480.00 in respect of her costs of and incidental to this Application in a Case and to the proceedings overall within seven days. Alternatively, she seeks an order that the husband go to the National Australia Bank and borrow that further sum using the real property at K Street, Suburb L as security for such borrowings in circumstances where that house is already on the market pursuant to a consent order previously made by this Court with the net proceeds to be divided equally between the parties. 

3. The wife also seeks in that Response some orders relating to the proposed sale of the Angliss D Group of entities which is the group of entities through which the parties have for many years been operating their international business. That business is, apparently, very valuable.  The orders the wife now seeks relate to the nomination of a mergers and acquisition lawyer to give the parties advice in respect of the sale of that business. 

4. The husband, through Queen’s Counsel who appears for him today, seeks to have that part of today’s proceedings that are encapsulated in the Response filed by the wife only last Wednesday, adjourned for a later date so that he may be in a position to properly and reasonably answer it.  He says that he is currently not in such a position because, the Response only having been filed on Wednesday, 21 September, and served on him later that day, he has simply not had enough time in the circumstances of his life in the ensuing days to prepare a Response and obtain advice, instruct his lawyers and prepare a meaningful response to the orders the wife seeks.

5. He supports his application with evidence that says he had only returned to the country after overseas business travel early last week, namely Monday last week, was served on Wednesday but had business meetings all day Thursday and for some part of the day on Friday, which thus inhibited his ability to be able to see his lawyers and produce his response. 

6. In opposition to the adjournment application, Dr Ingleby on behalf of the wife effectively submits that there would no prejudice to the husband by proceeding with the matter today because of the particular nature of the orders that the wife seeks.  He says that because the second part of the payment of legal costs orders that she seeks, namely the part where he is required to go to the bank and see if he can borrow another $415,000.00 against the property, is an order that goes only to implementation.  The order itself seeks that the husband within seven days do all acts and things to use the Suburb L property as security for borrowings in the sum of $415,000. 

7. I am simply not persuaded that these orders and their determination could be decided today, simply on the evidence presented by the wife to this Court, in a way that would ensure procedural fairness to the husband in the circumstances. 

8. I am satisfied that the orders that are sought by the wife are orders that the husband is entitled to take further advice in respect of from his solicitor and Queen’s Counsel and to be able to put on some evidence in response if that be his ultimate determination.  If it is not, and he is prepared to agree to those orders that are sought by the wife after reasonable opportunity to properly consider them, then a further hearing date may not be necessary in any event. 

9. In the circumstances, I grant the applicant husband’s Application for an adjournment of that part of the wife’s Response that raises new issues by application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 September 2016.

Associate: 

Date:  20 January 2017