Anthony and Anthony

[2007] FamCA 581

FAMILY COURT OF AUSTRALIA

ANTHONY & ANTHONY [2007] FamCA 581

FAMILY LAW - PRACTICE AND PROCEDURE - Adjournment

Family Law Act 1975 (Cth) - s.79(5)

Grace v Grace (1998) FLC 92-792; 22 Fam LR 442

APPLICANT: Mr Anthony

RESPONDENT: Mrs Anthony

FILE NUMBER: SYF 3197 of 2005

DATE DELIVERED: 4 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 4 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingston

SOLICITOR FOR THE APPLICANT: Willis & Bowring

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Benjamin & Robinson

Orders

1. That the husband’s application for adjournment of the substantive property proceedings, which in practical terms would probably amount to an adjournment for some years, is dismissed.

2. That the parties attend a Pre-Trial Conference at 3:00 pm on 4 September 2007.

3. That the time by which all affidavits are to be filed be extended to not later than 6 July 2007.

4. That compliance certificates be forwarded not later than 17 August 2007.

5. That all costs are reserved.

6. That 24 May 2007 is vacated.

In Chambers

1. That Judicial Registrar Johnston is disqualified from hearing the substantive property proceedings.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3197 of 2005

Mr Anthony

Applicant

And

Mrs Anthony

Respondent

REASONS FOR JUDGMENT

1. This is an application by the husband for what in effect amounts to an order adjourning substantive property proceedings between these parties for many years.  The respondent to the application is the wife. 

2. This aspect of the proceedings came before me approximately a year ago and on that occasion it was the position of the respondent that the respondent neither consented to nor opposed the application for an adjournment.  The adjournment that was sought at that stage was for a period to something like today.  That was in circumstances where it was fairly clear that, given the queue of cases awaiting determination in the registry, it would be beyond the capacity of the listing system to be able to allocate the substantive proceedings for hearing prior to approximately the present time.  As it has turned out, there is a pre-trial conference appointed for a date in approximately June this year.

3. The brief background matters are that the husband was born on … October 1957, the wife was born on … June 1960.  The parties married on 15 March 1986 and they separated on 4 October 2004.  There are two children of the marriage, the elder daughter, who was born on … January 1990, and younger daughter, who was born on … October 1991.  So that the marriage is a long marriage and it has produced two children.

4. The basis for the husband's application for adjournment is that he submits that because of a likely significant change in financial circumstances, the Court will be unable to do justice between the parties if there is not an adjournment.  This is in circumstances where it is common ground that the property of the parties has a value in broad terms of approximately 1.2 to 1.3 million dollars.

5. The wife has an elderly aunt, Miss M, who is now aged 85 years and who appears to suffer from psychosis.  She lives at an aged care facility and I am satisfied that on the basis of material that I have sighted today she requires a high level of nursing care.  The wife's aunt has made a will, that being a will dated 8 July 2004.  The wife is the major beneficiary in that will.  It is common ground that in the event that there is no other will, and it is difficult to conceive a situation in which there will be a change given the current medical condition of the aunt, that as the major beneficiary the wife would be likely to inherit a property with a value of approximately $3 million.  It is said that in those circumstances these proceedings should be adjourned because the Court will be better able to do justice between the parties if proceedings are adjourned.

6. I must say I have a different view about the matter.  In my view, the Court would be able to do justice between the parties in circumstances where there is something like 1.2 or 1.3 million dollars worth of property.  One would have thought that the significance of such an inheritance as that to which I have referred would really lie in the s.75(2) matters.  But in any event, even given what would be likely to be a significant imbalance of property and financial resources between the parties, I am not persuaded that the Court would not be able to do justice, as I have indicated.  Given the length of the marriage and the fact that it has produced two children, one would think that the Court’s assessment of contributions by the parties would have to be reasonably close to equal.  One would think that the Court could make a very significant shift in favour of the husband on the basis of the financial resource which the wife appears to have under the circumstances to which I have referred.

7. There was a very spirited submission on behalf of the husband that this case is similar to the case of Gracev Grace (1998) FLC 92-792; 22 Fam LR 442, a decision of the Full Court. But my recollection of that case was that there was an expectation in the form of a financial resource, the vesting of which was quite unclear, and that there was no property of the parties. It was submitted that the sort of period involved was fairly similar to the aunt's life expectancy in this case and that such a case should guide the Court in its determination of the adjournment application.

8. I must say, as I have indicated to learned counsel for the husband, in my view, quite a distinction can be drawn between Grace's case and the present case.  The difficulty, as I recall, in Grace's case was that there was not any property which would enable the Court if it did not adjourn the substantive property proceedings to do justice between the parties.  That is not the situation in my view in respect of the present proceedings.  In all the circumstances I am not persuaded that the matters which the husband is required to make out pursuant to s.79(5) have been made out in this case.  Accordingly, in my view his application for an adjournment of the hearing in the substantive proceedings should be dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     _________________________

Date:              5 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ANTHONY & ANTHONY