Argyros and Argyros

[2014] FamCA 17

FAMILY COURT OF AUSTRALIA

ARGYROS & ARGYROS [2014] FamCA 17

FAMILY LAW – PRACTICE AND PROCEDURE – Vacation of trial date – discovery incomplete – non-compliance with orders to file affidavits – Independent Children’s Lawyer discharged – Order for costs.

Family Law Act 1975 (Cth)

Kohan and Kohan (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105

APPLICANT: Mr Argyros

RESPONDENT: Ms Argyros

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10475 of 2011

DATE DELIVERED: 9 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 January 2014

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Marchetti

SOLICITOR FOR THE RESPONDENT: Stephen Farmer & Associates

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Mr Crozier-Durham

COUNSEL FOR THE RESPONDENT

INDEPENDENT CHILDREN’S LAWYER:

Westminster Lawyers

Orders

1. That the Independent Children’s Lawyer be discharged from the proceedings forthwith.

2. That within 14 days, the husband provide to the wife’s lawyers all documents as set out in the list of documents dated 13 September 2013 required of him.

3. That within 14 days, the husband file and serve an updated financial statement in accordance with Chapter 13 of the Family Law Rules 2004.

4. That the husband forthwith sign an authority to the following organisations and provide it to the wife for the purposes of enabling her to obtain such information as is necessary for these proceedings:

   (a)              The husband’s accountant;

   (b)              GE Mortgage Solutions;

   (c)              Faraday and West;

   (d)              A Australia Pty Ltd;

   (e)              B Trustees;

   (f)              Ms C trading as MC Trading;

   (g)              D Pty Ltd; and

   (h)              E Limited.

5. That F Valuers be appointed for the valuation of the Suburb H and Suburb J properties and G Valuers be appointed for the purposes of a valuation of the Suburb K property.

6. That the trial listed to commence on 3 February 2014 (and not before 6 February 2014) is vacated.

7. That the matter be listed for mention before Justice Cronin at 9.00am on 31 March 2014 (and if compliance with all outstanding obligations is completed, the matter will be listed for trial and failing both parties’ compliance, either or both will be required to justify why the matter should not be struck out or permanently stayed).

8. That by 4 pm on 7 March 2014 the applicant husband file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

9. That the applicant pay all setting down and trial fees by 4 pm on 7 March 2014 (if they have not already been paid).

10. That by 4 pm on 28 March 2014 the respondent wife file and serve upon all other parties:

    a.an amended response setting out with precision what orders are being sought;

    b.the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and

    c.a financial statement that complies with chapter 13 of the Family Law Rules.

11. That the reasons for judgment this day be transcribed and be made available to the parties.

12. That the wife’s costs of this day be fixed in the sum of $3000 and paid by the husband.

13. That the application in a case filed 20 December 2013 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Argyros & Argyros 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 MELBOURNE

FILE NUMBER: MLC 10475 of 2011

Mr Argyros

Applicant

And

Ms Argyros

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is a matter that was listed by me from an order on 21 August last year, when I set the case down for trial.  As a matter of precaution, I listed it at 9 o’clock this morning, to ensure compliance. 

2. On 20 December 2013, the wife filed an application in a case seeking a variety of discovery orders, on the basis that she asserted that the husband had not been cooperative and she set out, in some detail, all of the things that she had been missing in an endeavour to get the case ready for trial.

3. The husband has not filed any material in response to that application, nor did he comply with the order of August last year, under which he was to file his amended application by 22 November, and all of the affidavits-in-chief by 22 November, not to mention a financial statement. 

4. Whilst the husband might say today that there is a letter dated 22 November negotiating about things, those are matters as between the parties.  The court made an order, it has not been complied with.  This is not the first time this has happened.  This file is replete with orders about getting this case for trial.  It is now entering into its third year and very little seems to be advancing.

5. I also have an application for costs on the basis that counsel has attended today and a lot of work has gone into preparing the affidavit.  That application for costs is opposed. 

6. Section 117 of the Family Law Act 1975 (Cth) (“the Act”), provides that in proceedings in this Court, each party shall bear their own costs, unless there are circumstances that justify a departure from that principle.

7. I cannot think of a better example of a reason to justify departing from that principle, than when someone fails to comply with court orders.  In this case, the wife has had to bring the application to seek discovery, because she cannot file her trial affidavit material, even to proceed on an undefended basis.  On that basis, it seems to me, there is a justification for departing from the principle.

8. Before making an order for costs, however, the court must consider the matters set out in s 117(2A) of the Act. Those include the financial circumstances of the parties. In this case, there are a number of trading entities and a number of real properties. It would be very difficult for me to assume that the parties are impecunious in those circumstances.

9. There are no legal aid considerations as between the parties in this case and quite clearly, there has been non-compliance by the husband.  I am not in a position to make any finding about whether the wife is not compliant, because I do not have any affidavit material from the husband in respect of that issue.

10. The application for costs is for a total of $5625.  To make an order of that nature would require me to contemplate an indemnity cost issue and that, as the Full Court said in both the decision of Kohan and Kohan (1993) FLC 92-340 and also the recent decision of Prantage & Prantage [2013] FamCAFC 105, would require a court to make a finding of exceptional circumstances. Unfortunately or otherwise, these circumstances are not exceptional, although they are rather common in this particular case.

11. I propose, in this case, to make an overall order of $3000, which seems to me to be more in line with what I can see from the scale. 

12. The second matter is that the Independent Children's Lawyer has attended again by counsel and for that, I am very grateful.  The Independent Children's Lawyer shrugs his shoulders and says, this case is going on and on and no one really seems to have a very clear picture of what the court is going to be asked to decide.

13. It is all very well for the husband to say that he wants three days per week with the child of the marriage, but that is certainly not what his written application says and it is certainly not clear (because he did not file his material by 22 November as I ordered him to do so).  Everybody concedes that the husband and the wife are working with the independent expert in the proceedings and there seems to be a very limited role for the Independent Children's Lawyer.

14. At this stage, I see no reason why, and no party seems to object to this, to continue the involvement at huge expense to the taxpayers, by keeping the Independent Children's Lawyer involved in the proceedings.  On that basis, I propose to discharge the Independent Children's Lawyer.

15. The application in a case filed on 20 December also seeks a number of other orders. One of those orders is that the husband, within seven days, provide to the wife’s lawyers, authorities to obtain information that would be his obligation anyway under the Family Law Rules in relation to disclosure, to a number of entities.

16. The husband is here today resists that order.  He wanted an opportunity to avoid, as he describes it, some financiers finding out about these sort of things, but it seems to me the logical thing that should occur is that the husband sign the authorities immediately before he leaves the court and then it is a matter for him to negotiate with the wife.  If he fails to negotiate with the wife a sensible solution, then the authorities will, no doubt, go out to the various entities. 

17. This trial was set down for a number of days to commence on the 3 February list, but not before 6 February as a two-day matter.  It is nowhere near ready to proceed and on that basis, it must be vacated. 

18. I do not propose to allocate another hearing date, but order that the husband file all of his material as I ordered in August, by 7 March and the wife to respond with her obligations by 28 March.  I shall adjourn the matter to 31 March at 9 o’clock in the morning for mention. 

19. I make this abundantly clear.  If there has not been absolute compliance, then subject to any very good explanation on the day, and when I say absolute compliance, I mean by both parties, then it is most likely that I will simply strike the matter out on the basis of a failure to prosecute.

20. If one party has complied and the other has not, and again, there is no very good excuse, then it is likely that I will make an order that the matter proceed on an undefended basis. 

21. Other orders that are sought, relate to valuations.  I shall make an order that the valuer for the Suburb H and Suburb J properties be F Valuers and for the Suburb K property, G Valuers.

22. Otherwise, make orders in terms of paragraphs 1 and 3 of the application, changing the timeline from seven days to 14 days. 

RECORDED  :  NOT TRANSCRIBED

1. I will otherwise dismiss the application in a case filed 20 December 2013.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 January 2014.

Associate: 

Date:  22 January 2014