BAILEY and HAROLD

[2020] FCWA 20

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: BAILEY and HAROLD [2020] FCWA 20

CORAM: O'BRIEN J

HEARD: 11 FEBRUARY 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 586 of 2016

BETWEEN: MR BAILEY

Applicant

AND

MS HAROLD

Respondent

Catchwords:

PRACTICE & PROCEDURE - Where matter is listed for trial and, despite significant expenditure on legal fees, has not been made ready in a timely fashion - Where the Court is entitled to consider the interests of other litigants awaiting scarce trial dates - Case turns on its own facts.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Needham
Respondent	:	Mr Rodda
Independent Children's Lawyer	:	Ms Stokes

Solicitors:

Applicant	:	Wenn Law Barristers & Solicitors
Respondent	:	Cullen Macleod Lawyers
Independent Children's Lawyer	:	Eagle Bay Legal

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bailey & Harold has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1The proceedings come before the Court this morning for a Status Hearing. The purpose of a Status Hearing is to monitor the readiness of the proceedings for an impending trial, which in this case is listed to commence not before 24 February 2020 and to run for five days. Both parenting and financial matters are in dispute.

2For the reasons which follow, the matter is clearly not ready for trial, and it cannot confidently be said that it will be made ready for trial in the time available.

3The proceedings have a long and difficult history which need only be briefly summarised for present purposes. The parties were in a de facto relationship and separated in early 2016. They have three children, the eldest of whom suffers from significant disabilities requiring a high level of care.

4Proceedings were commenced by the father filing an Application [in] February 2016. In that application, he sought parenting orders only, but did not specify them. Rather, he purported to seek final orders “to be particularised within 45 days of receipt of the written report from a psychiatrist acting as a single expert”. The father was represented at the time, albeit not by his present solicitors. That inadequately particularised Application was prepared on his behalf by a lawyer.

5The mother filed a Response to that Application [in] March 2016, seeking specific orders in relation to parental responsibility and the children living with her, but otherwise purporting to seek “such other orders that the Honourable Court deems appropriate” [sic]. Again, that Response was prepared on her behalf by a lawyer.

6[In] May 2016, the mother filed an amended Response. She was, by comparison to her initial Response, only marginally more specific in relation to the parenting orders sought, but otherwise sought detailed orders for the alteration of property interests between the parties.

7The father’s Reply to that amended Response was filed on 28 June 2016. Again, the father was represented and the Reply was prepared by his lawyer. The relief purportedly sought by him on a final basis was set out in the following terms:

“The applicant opposes the final orders sought by the respondent in her amended Form 1A filed [in] May 2016 both in respect to property and child related issues. The applicant will particularise his final orders in respect to financial matters within 45 days following the later of the respondent having made full and proper disclosure and the mediation. [sic]”

8The unhelpful and entirely inadequate nature of that pleading is self‑evident.

9The proceedings have continued through a variety of interlocutory steps, including various interim disputes. Orders were made to progress the proceedings towards a trial, and for the filing of affidavits of evidence in chief and witness affidavits to that end.

10The father did not comply with those orders in a timely fashion. [In] June 2019 an order was made by a Magistrate extending the time within which the father was to comply with those orders to the close of Registry on 5 July 2019. Paragraph 2 of the orders made that day was in the following terms:

“In the event that the applicant does not comply with the preceding order then subject to any further order of the Court the applicant’s Form 1 application filed [in] February 2016 be dismissed.”

11That order was made following the filing by the mother’s solicitors [in] June 2019 of a Minute of interim orders sought in which it was proposed that the “wife [sic] be granted leave to proceed on an undefended basis in relation to property settlement”. Orders in the alternative for the appointment of a Single Expert Witness in relation to financial matters were also sought.

12The father did not file his trial documents within the extended timeframe ordered. There were then a series of disputes in relation to various subpoenas, dealt with over a number of interlocutory hearings. [In] June 2019 an order was made by consent for the appointment of a Single Expert Witness in relation to the father’s business interests; it will be recalled that such an appointment was sought by the mother in the alternative to her application for leave to proceed undefended in relation to the financial case.

13It is against that background that the mother now seeks to argue that, in effect, the trial in relation to both parenting and financial proceedings should proceed on an undefended basis, contending that the father’s application filed on [in] February 2016 has effectively been dismissed.

14There are fundamental problems with that proposition.

15The first is obvious. Even if the father’s Application filed [in] February 2016 has, by operation of the orders made by the learned Magistrate [in] June 2019, been dismissed, that application sought only un‑particularised relief in relation to parenting matters. The order made [in] June 2019 does not purport to dismiss the father’s Reply filed [in] June 2016, by which he sought admittedly unspecified relief by way of alteration of property interests.

16The second difficulty with the proposition advanced on behalf of the mother arises from the nature of the orders made by the learned Magistrate. With due respect to his Honour, who was dealing with the matter in a busy list and faced both confusing documentation filed by the parties, and matters in respect of which counsel indicated they did not have full instructions, the form of the orders made is problematic. While it may be inferred that his Honour intended that, if the father failed to file his trial documents within the extended time, his initiating application would be dismissed by the operation of paragraph 2 of his Honour’s orders and without the need for any further order to be made, that could, with respect, have been made clearer in the wording of the orders. More problematic is the expression of the dismissal of that initiating application as being “subject to any further order of the Court”.

17In my respectful view, an application cannot be dismissed subject to any subsequent order. It is either dismissed or it is not. The party whose application is dismissed by operation of what is commonly termed a “springing” order may still have avenues open to them by the filing of further applications, but that is a separate matter.

18The position in that regard may be contrasted with the practice of making orders granting a party leave to proceed undefended, subject to any subsequent order. The distinction between leave to proceed undefended and the dismissal of an application is appropriately to be borne in mind when dealing with issues of non-compliance.

19For those reasons, I conclude that notwithstanding his recalcitrance the applicant’s prayers for relief in relation to both parenting and financial matters have not been effectively dismissed.

20That being the case, the question then arises as to whether the matter is ready to proceed to trial. The short answer is that it is not.

The parenting case

21There are complex issues associated with the parenting case. It is for that reason that a Single Expert Witness in the parenting case was appointed. His last report was prepared in April 2018.

22When I enquired of the Independent Children’s Lawyer (“the ICL”) as to what further steps were proposed in that regard she outlined the efforts which she had made to secure the necessary cooperation of the parties to have an updated report prepared by [the Single Expert Witness (“SEW”)] in time for the trial to proceed as presently scheduled. She commenced those enquiries in October last year. It is fair to say that the parties responded to them in a dilatory and unsatisfactory manner. As matters presently stand there is no updated report from the SEW although the ICL is hopeful that it will be available prior to the scheduled trial, albeit only a few days prior. She confirmed that the SEW has interviewed both the parties and the children for that purpose of the report.

The financial case

23The identification of the existing legal and equitable interests of the parties in property is fundamental to the proper disposition of their respective claims for alteration of those interests.

24The father has business interests. There is no agreement as to the value of those interests, nor is there any admissible evidence as to that value notwithstanding the orders made for the appointment of a Single Expert in June 2019. In her interlocutory response filed only on Friday the mother seeks the appointment of a Single Expert Witness in relation to that issue. There is no agreement on that point. While she submits that provided the applicant cooperates with the provision of documents and information a valuation can be prepared in time for the trial to proceed as presently scheduled, the history of the matter gives absolutely no confidence in that regard.

25The mother has business interests. There is no agreement as to the value of those interests, nor is there any admissible evidence. In his interlocutory application the father seeks the appointment of a Single Expert Witness, unnamed, in relation to that issue. There is no indication as to whether or not the witness would be able to report in time for trial even if appointed today. The necessary steps required pursuant to the Rules for the appointment of a Single Expert appear to have been ignored. There is no consent from the proposed expert before the Court, even had the expert been named in the application itself. Again, there is no reason for even a slight degree of confidence that an expert could be appointed and properly report in time for the trial to proceed.

26The parties own real estate. While the father seeks the sale of the properties, the mother seeks to retain at least one of them, being the home in which she and the children reside. There is no agreement as to the value of the properties, nor is there any admissible evidence in relation to that issue. In her interlocutory response just referred to, the mother seeks orders for the updating by a Single Expert Witness of valuations prepared nearly two years ago. Again there is no indication as to whether that evidence can be available for the trial as presently scheduled.

27Notwithstanding all of that, the mother in particular but joined by the father sought to retain the existing trial dates.

28As the High Court has made clear in a number of decisions,[1] when considering any application for an adjournment or late amendment of pleadings, a court may properly take into account case management principles, the fact that the time of the Court is a publicly funded resource, the public interest in the efficient and proper use of that resource, and the interests of other litigants in having their own cases heard in a timely manner.

[1] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.

29In my view, the same matters may properly be taken into account by the Court in considering of its own motion whether an existing trial date should be retained for the benefit of parties who are not properly prepared, to the detriment of other litigants.

30As is well known to the profession, the Court lists trials in a rolling list and applies an over listing ratio designed to ensure that where cases are not ready, or more positively where cases settle just short of trial, other matters requiring hearing are able to be heard on dates otherwise allocated to those matters which do not proceed.

31As is even better known, the delays in matters in this Court and other courts administering family law around the country are simply too long. The Court has an obligation, within the limits of the resources available to it, to do whatever it can to facilitate the reduction of those delays, and to minimise their impact on parties who have properly prepared their cases and are ready to proceed as soon as the Court can accommodate them.

32Those parties should not have their cases further delayed by the allocation of trial dates to parties who have not prepared properly for trial. That circumstance is only exacerbated by the fact that both parties are, in this case, represented and that it appears that very considerable amounts have been spent in legal fees through the course of the proceedings. It is not unfair to say that the Court is entitled to expect that where parties have instructed solicitors throughout, at such expense, that a case will be properly prepared for trial and, subject to the vicissitudes of litigation, ready. This case is not.

33However the blame for the state of readiness of the present case might eventually be attributed, whether in the context of costs applications or otherwise, the matter is simply not ready.

34The trial will be vacated.

35That said, there are interim and interlocutory disputes between the parties that need to be resolved including but not limited to the father’s application for the sale of properties.

36I therefore propose to allocate what would have otherwise been the first day of trial to the resolution of those interim and interlocutory matters, and the taking of whatever steps are necessary to ensure that the matter is subsequently made ready for trial.

37The parties need to personally confer as to the issues relevant to both the parenting and financial matters. I note in that regard the advice of the ICL that she has arranged for a Legal Aid Dispute Resolution Conference to be scheduled to deal with the parenting case in particular. Even outside that, the ICL needs to participate in the personal conferral in relation to the parenting case. I make it clear for the benefit of the parties and the instructing solicitors present in court that personal conferral means just that. The parties and their solicitors need to actually talk to each other. Correspondence whether by email or letter, and no matter how voluminous or frequent, is no substitute for parties and their lawyers actually discussing matters.

Orders

38There will be the following orders:

1.The trial presently listed to commence not before 24 February 2020 be and is hereby vacated.

2.All outstanding interim and interlocutory applications and responses are adjourned for hearing before the Honourable Justice O’Brien at 10.00 am on 24 February 2020.

3.The parties and their solicitors are to personally confer, by face-to-face meeting or telephone, and file by no later than the close of Registry on 19 February 2020 a joint Minute setting out:

(a)those interim orders sought by either party which can be made by consent;

(b)those procedural orders which the parties agree can be made to appropriately progress the matter towards trial, including but not limited to orders in relation to expert evidence and disclosure; and

(c)those procedural orders sought by either party or by the ICL which cannot be made by consent, with the Minute to specify by whom each such order is sought.

4.By no later than the close of Registry on 19 February 2020, each party must file and serve a comprehensive Minute setting out the final orders to be sought by that party in relation to both parenting and financial matters, such Minute to stand as if a formal amendment of the relevant application, response or reply.

5.The ICL must participate in the personal conferral referred to in paragraph 3 of these orders, and the preparation of the joint Minute, in relation to parenting matters only and subject to continued funding.

6.The solicitors for each party must forward to the Principal Registrar up to date Costs Notifications in compliance with the Rules, to include work done by any firm of solicitors instructed to date by the close of Registry on 19 February 2020.

7.The costs of both parties and the ICL are reserved.

These reasons are the reasons for decision delivered on 11 February 2020, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

17 FEBRUARY 2020