Argyle and Argyle

[2011] FamCA 851

FAMILY COURT OF AUSTRALIA

ARGYLE & ARGYLE [2011] FamCA 851

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Proceed on an undefended basis

Family Law Act 1975 (Cth)

Black & Kellner (1992) FLC 92-287, 15 Fam LR 343
Oriolo & Oriolo (1985) FLC 91-653
Tate & Tate (2000) FLC 93-047

APPLICANT: Ms Argyle

RESPONDENT: Mr Argyle

INTERVENERS: Mr B & Mr C & Ms D & E Lawyers

FILE NUMBER: PAC 811 of 2007

DATE DELIVERED: 17 May 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 17 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Rowlandson & Co

FOR THE RESPONDENT: Mr Argyle in person

SOLICITOR FOR THE INTERVENER: Mr Gilchrist of Antwan Lawyers & Ms Davis of Medcalf Grant Lawyers & Mr E of E Lawyers

Orders

1. I order that the husband’s application for an adjournment is dismissed.

1. I give leave for the wife to proceed on an undefended basis.

IT IS NOTED that publication of this judgment under the pseudonym ARGYLE & ARGYLE has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 811 of 2007

Ms Argyle

Applicant

And

Mr Argyle

Respondent

And

Mr B

Intervener

And

Mr C

Intervener

And

Mr D

Intervener

And

E Legal

Intervener

REASONS FOR JUDGMENT

1. Before the Court are substantive property proceedings.  The previously married parties are Ms Argyle and Mr Argyle.  For convenience I shall refer to them as “the wife” and “the husband” respectively.  But there are interveners in the proceedings, Mr C, Mr B, Ms D and Mr E.  Those interveners are seeking payment of various amounts of money from the husband.  They have intervened in the proceedings in the hope that they will be able to recover money said to be owed to them from whatever judgment is made by this Court in favour of the husband in these proceedings.

2. As it turns out, on what is the first day of the trial, the husband has sought an adjournment.  He says that this is in circumstances where only late last week, a very short period before the trial, his solicitor, Ms O’Hanlon, ceased representing him.  The question is whether in all the circumstances of this long and somewhat complicated case, the Court ought to give leave to the wife to proceed on an undefended basis.  If that was the case, then the wife and the interveners would be able to make submissions to the Court in the absence of any material from the husband.

3. The husband says, in support of his application for adjournment, that he has not had time to be able to make the case ready in circumstances where he says he has had a number of proceedings in which he has been involved in other courts.  He says that he has been trying to have orders changed in the Supreme Court and that he has been busily engaged with the Supreme Court on occasions when he was required to be in this Court.  He says that he has also been in other courts, in addition to the Supreme Court, again, on many of the dates when these proceedings have been before this Court.

4. The husband finds himself in the position where, notwithstanding numerous orders of this Court over a very long period, he has not filed a substantive response nor a financial statement, let alone an affidavit.  It is the case that there have been certain interlocutory aspects of the proceedings commenced by the wife in respect of which the husband has filed a response to an application in a case.  Most recently there was an application which was dealt with by Collier J involving an application for an order for sale of the former matrimonial home and for the net proceeds of sale to be paid out in accordance with certain orders.  His Honour made those orders.  But in respect of the substantive proceedings, notwithstanding the fact that the wife’s application for final property orders which commenced the proceeding, was filed as long ago now as 30 November 2009.

5. The husband finds himself in a position where he is not ready to proceed with the trial.  He has not complied with the orders.  These three hearing days were set down on 17 February 2011.  I have had some difficulty trying to reconstruct this from the Court record.  But there was tendered a letter from the wife’s solicitor dated 17 February 2011 which sets out directions which Registrar Tran made on that day.  Those directions were firstly that within 28 days each party file and serve affidavit evidence on which they each seek to rely.  Secondly, that there be a compliance check by way of telephone directions hearing on 31 March 2011 at 9:30 am.  Thirdly, that the matter be listed for a three-day defended hearing.  The letter from the attorneys noted that the matter had been set down for a defended three-day hearing commencing Tuesday, 17 May 2011.

6. That followed some earlier directions which had been made as recently as 6 December 2010.  The wife on that occasion was ordered to file and serve any amended application within 14 days.  The husband was specifically ordered to file and serve any amended response and any applications by 31 January 2011 and then the matter was listed for further directions on 17 February, as I have said.  What is of note is that clearly the husband was represented by his solicitor Ms O’Hanlon on that occasion.  I am informed that on the occasion of 17 February 2011, when those specific directions were made the husband’s solicitor appeared in person before the learned Registrar.  Then on that occasion, as I said, the matter was set down for a compliance check on 31 March 2011 and this was changed administratively to 14 April 2011.

7. On that occasion, the wife’s solicitor, Mr Robinson, appeared for her.  Significantly, Ms O’Hanlon appeared for the husband and a Ms Attella appeared for the first and second respondents.  It was clear on that occasion from the Court record that the wife’s attorney had informed Registrar Tran that she was ready for hearing, the interveners had indicated that they were ready for the hearing and a notation was made on the file to the effect that the husband had not filed in accordance with the directions.  And that must be the case because Mr Argyle has confirmed to the Court today that he has never filed any substantive response, financial statement or substantive affidavit in accordance with the various directions that have been made over a long time.  So the question is, should the Court grant him the adjournment.

8. The adjournment application is strongly opposed by the wife and also by the interveners.  The wife’s counsel said in opposition to the application that everybody except the husband is ready to proceed and has been ready to proceed for some time.  But when the matter was before Registrar Tran at the readiness hearing on 14 April 2011, the learned Registrar indicated that she would not be prepared to adjourn the proceedings and that the husband had better get a move on from which I infer gave the clear message that if the husband wanted to respond to the substantive application then he had better get a move on to comply with the Court orders.

9. As it has transpired, Mr Argyle has not got a move on.  His solicitor filed a notice of ceasing to act last Friday.  He now finds himself before the Court having never complied with any directions of this Court in the substantive proceedings.  It is said by learned counsel for the wife and by the others that there is not a lot of money involved in these proceedings, that if the proceedings are stood over again that will simply cause further costs to the wife and the interveners and that it is not clear that out of the available funds a judgment would be made in favour of the husband in a sufficient amount for him to be able to satisfy the additional costs which would be caused by the adjournment.  It was submitted that when the former matrimonial home was sold under the orders which Collier J made, each of the husband and the wife were to receive an interim distribution of property and that being in the amount of $100 000 to each of them.  It is said that under the orders the husband had to pay one of the interveners, Ms D, $45 000.

10. It is significant that there is a clear obligation on parties to proceedings in family law matters to make a full and frank disclosure of all relevant financial circumstances.  That has been set out in numerous authorities of this Court, including Oriolo & Oriolo (1985) FLC 91-653 and Black & Kellner (1992) FLC 92-287, 15 Fam LR 343 and a whole host of authorities, not only in this country but also in the United Kingdom as well.

11. I note that a situation of non-compliance with court orders was before the Full Court of this Court in the case of Tate & Tate (2000) FLC 93-047. The Full Court said as follows at page 87,709:

    … This Court has a duty to order its business with justice according to law.  The Rules of Court are there to assist in the fair and timely preparation of matters for expeditious trial.  Litigants in such matters also have the duty of full and frank - and we would add prompt - disclosure of relevant financial matters.  ...

    It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them.  Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis.  That is not only because it is contemptuous of the Court’s orders.  It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the Court can hear them.  The luxury of procrastination - let alone deliberate disobedience - is a luxury of the past, if it ever existed.

12. In my view, in all these circumstances, it would be most unfair to the wife and interveners to grant the adjournment.  The husband has had ample time in which to file his material yet he has chosen not to do so.  Accordingly the husband’s application for an adjournment will be dismissed and the wife shall have leave for her application to be herd on an undefended basis.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 17 May 2011.

Associate:

Date:  3 November 2011