Barakat and Barakat (No 2)

[2015] FamCA 1027

FAMILY COURT OF AUSTRALIA

BARAKAT & BARAKAT (NO. 2) [2015] FamCA 1027

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the applicant wife seeks an adjournment on the fifth day of the final hearing – Where it has recently been alleged that the respondent husband has failed to disclose an interest in a trust established by his mother, which had subsequently acquired property – Where during the course of the hearing it was revealed a development application has been lodged in respect to the property – Where material has recently been produced under subpoena in respect to the property – Adjournment granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

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

APPLICANT: Ms Barakat

RESPONDENT: Mr Barakat

FILE NUMBER: SYC 3117 of 2012

DATE DELIVERED: 13 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 13 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levet

SOLICITOR FOR THE APPLICANT: Cambridge Law

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

THE COURT ORDERS THAT:

1. Leave is granted to the Applicant Wife to amend the schedule of the subpoena issued to the National Australia Bank filed on 5 November 2015 by adding the following:

a.   after the words “loan application forms” the words, “(including all documents produced in support of the application)”; and

b.   adding an additional paragraph “d” to include “E Pty Ltd”.

1. The Applicant Wife is to pay the reasonable expenses incurred by the National Australia Bank in complying with the amended subpoena served on the National Australia Bank today, including the reasonable costs (assessed on party/party basis) in respect to:

a.   obtaining legal advice in respect to the Applicant Wife’s request to produce additional documents to the Court; and

b.   obtaining legal representation for todays appearance.

1. Leave is granted to the parties and their legal representatives to inspect the additional documents produced today in answer to the amended subpoena served on the National Australia Bank today.

THE COURT FURTHER ORDERS THAT:

1. The Applicant Wife’s oral application for an adjournment of the proceedings is granted.

1. The matter is adjourned Part Heard before McClelland J to 10.00 am on 16 and 17 March 2016.

2. The Respondent Husband’s oral application for the costs thrown away today, on an indemnity basis, is adjourned to balance of the final hearing listed on 16 and 17 March 2016.

THE COURT ORDERS, BY CONSENT AND PENDING FURTHER ORDER, THAT:

1. The father’s Application in a Case filed on 11 September 2015 is set down for hearing at 10.00 am on Friday, 18 December 2015.

1. Orders 3, 4, 5, 6, 7, 8 and 9 of the Orders made on 13 August 2015 be suspended until 19 December 2015.

2. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.

10. The parties provide to the Legal Aid Commission, of NSW, PO Box K847 HAYMARKET within 48 hours all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

11. The father is granted leave to provide a copy of relevant Orders made by the Court in these proceedings, including the Orders made on 13 August 2015 and a copy of the Orders made today, to the children’s school.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barakat & Barakat (No. 2) 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 SYDNEY

FILE NUMBER: SYC 3117 of 2012

Ms Barakat

Applicant

And

Mr Barakat

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I note the time for the purpose of giving this judgment is 2.35 pm on the fifth day of the final hearing.  That time is a relevant factor in the decision that I have made.

2. This is the third ex tempore judgment that I have given during the course of these proceedings.  This decision involves an application by the wife to adjourn the proceedings on the basis of additional information that has been provided, firstly by a letter dated 22 October 2015, which was a letter from the solicitors for the husband to the solicitor for the wife, and additional material concerning a property development application that has been disclosed during proceedings today. 

3. I set out, by way of summary, the contents of that letter dated 22 October 2015 in my ex tempore judgment delivered on 4 November 2015.[1]  I will not set out that summary save insofar as to note that the letter disclosed the husband’s interest in a company called G Pty Ltd (“G”), and that he is the sole shareholder and director.  It also disclosed the establishment of the F Trust in December 2014.  The letter identified that the husband’s mother is the principal appointer of that Trust and has appointed G as the Trustee.  It also disclosed that, on 19 December 2014, G as Trustee for the Trust, entered into a contract for the purchase of a property at J Street, Suburb K for a purchase price of $1.8 million.  Additional information, as I have said, is set out in my judgment of 4 November.

   [1] Barakat & Barakat [2015] FamCA 979.

4. During the course of proceedings this morning, additional information has been provided to the Court concerning a development application submitted by G to develop the site at J Street.  While it is the subject of some controversy and potential argument, evidence has been presented to the Court that the local council has sought additional information in respect to that development application and has also proposed revisions.

5. The evidence provided by the husband is that the response of the local council will result in the development application no longer being viable and accordingly, nothing has been determined in respect of the future of that development.

6. Nonetheless, counsel for the wife has indicated that an adjournment is required, essentially for the following reasons:

   (1)that at least an appraisal as to the value of the J Street property is required, as both an:

   (a)undeveloped property; and

   (b)potentially developed property.

   (2)to ascertain the nature and status of the development application that has been submitted to the local council;

   (3)to review documentation that has been produced pursuant to subpoenas that have recently been issued including, most specifically, to the National Australia Bank subsequent to the letter from the husband’s solicitor dated 22 October 2015; and

   (4)to cross-check evidence provided today by the husband in respect to payments made to professionals who have provided advice in respect to the development application, as against those bank records that have been produced.

7. Related to those reasons, counsel for the wife says that he would like, as part of the advancement of his client’s case, to put matters regarding those issues to the husband by way of cross-examination, and that he felt that he would be duty-bound to put any matters that he wished to advance by way of submission to the husband for his response.

8. Counsel for the husband has provided a succinct summary of the relevant law, and in particular, has referred to Aon Risk Services Australia Ltd v Australian National University.[2]  An adjournment application is essentially a balancing exercise that involves a consideration of the litigants’ right to a fair trial, including, as far as is reasonable, presenting such evidence to the Court as they require to properly present their case, as against the interests of the other litigant as well as the efficient administration of justice, including the fact that the Court is a public resource.[3]

   [2] (2009) 239 CLR 175 (“Aon Risk Services”).

   [3] Anton & Malitsa (No. 2) [2009] FamCA 242.

9. In that respect, litigants should be aware that the time of the Court is a public resource which must be managed effectively in the interests of not only the immediate litigants, but also in the interests of other litigants waiting for their matters to be listed for hearing.[4] 

   [4] Sali v SPC Ltd (1993) 116 ALR 625.

10. The Court places considerable emphasis on dealing with matters expeditiously. In that respect counsel for the husband has referred to relevant passages from Aon Risk Services (supra). Counsel for the husband has also referred to passages in that judgment confirming that an award of costs against the party seeking the adjournment may not necessarily be suitable recompense to the other party who suffers delay.[5]

    [5] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5].

11. In this matter I reluctantly grant the request for an adjournment. A reason for my reluctance is the previous action of the wife’s lawyers in joining a second respondent, B Pty Ltd, and a third respondent, Mr Sisley, to this litigation in circumstances where proceedings against those second and third respondents have now been discontinued.  The litigation in respect to issues concerning the second and third respondents has taken a considerable amount of time in these proceedings.

12. Further, I am very concerned that taking additional time to explore the issues that have been identified by counsel for the wife may end up being a futility, in the sense that it may not disclose either an additional property interest or any income earning opportunities that are of sufficient value to influence the outcome of this matter.  

13. In that respect, counsel for the husband has properly referred to costs that have been incurred in these proceedings. He submitted that there is a significant risk that the costs incurred by the parties may well result in any final property settlement being all but meaningless to the parties.

14. I note, however, the information that has recently come to light, by way of the letter of 22 October 2015 and by way of additional evidence that has been presented today, occurred in circumstances of what appears to be non-compliance with disclosure obligations by the husband. Those obligations are set out in rule 13.04 of the Family Law Rules 2004 (Cth).

15. In balancing the interests of the parties and in balancing the interests of the community in the efficient administration of justice, I note that we will now be losing perhaps an hour and a half of hearing time. As counsel for the wife submitted, this is in circumstances where there is no way that these proceedings can be concluded today. In that respect I note there is another witness required for cross-examination and the matters requiring submissions will be quite complex. 

16. Accordingly, on balance and having had regard to all of the above considerations, I propose to exercise my discretion to grant the applicant’s request for an adjournment of the proceedings.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 13 November 2015.

Associate: 

Date:  24.11.2015