Bodilly and Hand

[2012] FamCA 665

FAMILY COURT OF AUSTRALIA

BODILLY & HAND [2012] FamCA 665

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to file documents out of time granted – question of whether party can rely at the final hearing on the evidence reserved for the trial judge – case run with as little inconvenience to the parties as possible

Family Law Act 1975 (Cth)

APPLICANT: Ms Bodilly

RESPONDENT: Mr Hand

FILE NUMBER: MLC 10737 of 2009

DATE DELIVERED: 30 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John SC

SOLICITOR FOR THE APPLICANT: Tolhurst Druce & Emmerson

COUNSEL FOR THE RESPONDENT: Mr Ackman QC

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyers

Orders

IT IS ORDERED THAT:

1.This matter remain listed for final hearing before the Honourable Justice Loughnan to commence on 6 August 2012 at the Parramatta Registry of this Court estimated to take 3 days.

2.The respondent have leave to file the following documents by 4.00 pm this day:-

a)     any further questions of the applicant in lieu of cross-examination; and

b)     the documents required by paragraph 4 of the Order made on 25 June 2012 which have not already been filed.

3.The respondent have leave to file the following documents by 4.00 pm on Tuesday 31 July 2012:-

a)     any further evidence from Ms S as to the costings of the requirements for the applicant; and

b)     any evidence upon which the respondent proposes to rely from Mr H, accountant.

4.For the avoidance of doubt, the leave to file documents extended to the respondent by this Order is not a determination that the respondent can rely upon the documents at trial, that issue being a matter for the learned trial judge.

5.To the extent that the respondent has not done so, he incorporate in any affidavit material to be filed on his behalf today details of his interest in real or personal properties which are referred to in Item 57 and Part O of his Financial Statement sworn on 20 July 2012.

6.Any documents filed after 4.00 pm on 31 July 2012 be filed electronically.

7.By not later than 12.00 noon on 2 August 2012 each party file and serve the following documents:-

a)     a list of documents upon which that party will seek to rely upon at trial;

b)     a summary of argument including, but not limited to, the matters in s75(2);

c)     a summary of any matters upon which evidence is adduced from experts which is not agreed;

d)     a minute of orders which he/she seeks be made at the final hearing if such orders differ from the last application or response filed by that party.

8.By way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon on 2 August 2012, the practitioner for each party provide notice in writing to his/her client of:-

a)     the actual costs incurred by the client up to and including that date;

b)     any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

c)     the costs payable for each day of the private mediation;

d)     the costs payable for each day of the trial;

e)     the estimated length of the trial; and

f)     the date of payments made and the source of the funds for the costs paid or to be paid so that:-

i.if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

ii.if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

iiiif costs have been paid in cash, the details must identify the payer.

9.That contemporaneously with compliance by the practitioner concerned with paragraph 8 of this Order, the practitioner send a copy of the notification to the other party to the proceedings.

10.The reasons for judgment this day be transcribed and when settled copies be made available to the parties.

11.If any party becomes aware of anything that might prevent commencement of this matter at 10.00 am on 6 August 2012 or the conclusion of it within the three days allocated, that party forthwith and on short notice to the other request that the matter be listed before Justice Loughnan for mention.

12.The costs of both parties be, and are hereby, reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hand & Bodilly 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 10737 of 2009

Ms Bodilly

Applicant

And

Mr Hand

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This application by Ms Bodilly against Mr Hand is fixed for hearing before Loughnan J., in Parramatta, on 6 July 2012.  It has taken a very long time to get to the barrier.  In relative terms a great deal of work and money has been expended on the preparation of this case which relates only to spousal maintenance.  The husband concedes that he has a capacity to pay because, notwithstanding that the bulk of his assets have been transferred to his wife, Ms K Hand, the respondent still has use and control of them.  The issue for trial is the applicant’s need for the maintenance or the extent to which she is unable to support herself adequately.

2. Today, Mr Ackman QC, for the respondent husband, seeks a number of indulgences from the Court by way of leave to file evidence and documents out of time. 

3. Mr Ackman seeks to ask more questions of the applicant.  He says that he does not need leave but semaphores the further questions.  The applicant will attend the hearing but, as I understand, it is conceded that she is not able to be cross examined due to her disability.  Earlier I made an order that the respondent could ask questions of the applicant in writing which were to be responded to in writing prior to the commencement of the final hearing.  Mr St John SC, for the applicant, has made clear on previous occasions that even questions on notice take some time for her to answer.  Already one set of questions has been sent and responded to. 

4. Mr St John, for the applicant, says that any further questions will be unlikely to be able to be answered having regard to the fact that a solicitor and perhaps some clerical person, will have to attend upon the applicant in New South Wales for the purpose of getting those responses.  Mr St John opposes the respondent being granted leave to ask further questions as the respondent has been on notice that obtaining the applicant’s answers is a time consuming and, therefore, expensive process.  That said, it is only the applicant’s circumstances which require to be tested in this case and the applicant’s evidence must be able to be scrutinised and tested in a meaningful way.  If I am against Mr St John’s submission, he says that his instructing solicitor will do the best they can.

5. What I propose to do is to allow Mr Ackman’s client an opportunity to ask any further questions today but make no order as to the time within which the responses are required.  It will be a matter for the learned trial judge as to whether it was reasonable that responses were (or were not) forthcoming to all of the questions or just some of them.

6. The next matter that Mr Ackman asks for leave to do is to submit further evidence from Ms S who has costed various requirements of the applicant, most recently, I think, in affidavit material filed in January 2012.  The applicant did not take issue with Ms S’s evidence at that time.  However, until the applicant and her advisers see Ms S’s further evidence, no one can say what response (if any) may be called for.  Again Mr St John opposes leave being granted given the short time before the trial and that it will not be feasible nor possible for the applicant to put on any material in response if she takes issue with what further evidence Ms S gives.

7. I propose to admit that affidavit to be filed, if it can be filed by 4.00 pm tomorrow, which accords with when Mr Ackman says it can be available.  I do not, however, grant leave for it to be relied upon at the hearing.  Whether the respondent can rely on the further evidence is, again, a matter for the learned trial judge to consider and determine.

8. The next matter that Mr Ackman seeks on behalf of the respondent husband is to file an affidavit by an accountant, a Mr H, a witness whose name I don’t recognise.  He would be a new witness.  This expert evidence will be analysis of moneys that the wife has, arguably, forgone or lost by virtue of having borrowed on the security of some shares apparently contrary to her own accounting advice.  The respondent contends, through Mr Ackman, that the applicant’s dealings have lessened her ability to provide for herself financially. Part of his case is that the respondent ought not be looked to for the shortfall in the Court’s estimation of the extent to which the applicant is ‘unable to support herself adequately’.

9. Mr St John vigorously opposes this evidence of a further expert being filed at this juncture.  He says that the evidence of the applicant’s accountant was filed in, I think, October 2011 and that any evidence in response ought to have been filed within a reasonable time.  There has been up dating evidence from the applicant’s accountant but, Mr St John says, the issue sought to be addressed by Mr H was squarely raised in the initial evidence of the applicant’s accountant last year.  It is not the first time that Mr Ackman has raised the contention that the applicant has wasted funds to her financial detriment.  However, it is the first time that the respondent has sought to wrap expert evidence around the contention, notwithstanding that he has had numerous opportunities to do so and is out of time to file such evidence now.

10. Again, I consider that the learned trial judge is best placed to determine whether the respondent ought to be able to rely on the evidence of Mr H. I will permit the affidavit evidence of Mr H to be filed by the respondent by 4.00 pm tomorrow.

11. Next, Mr Ackman, seeks an extension of the time which the husband can comply with paragraph 4 of the Order made on 25 June 2012.  That Order provided for the respondent to file:-

    a)his further amended response;

    b)his own affidavit evidence;

    c)any other evidence upon which he relies; and

    d)an updated financial statement -

    by 20 July 2012 at 4.00 pm.  The respondent failed or neglected to file any document other than a financial statement.

12. Mr St John submits, correctly, that the respondent last filed a response in 2010. He submits that the respondent hasn’t filed any affidavit material recently or, maybe, even be since then.  Again, Mr St John vigorously opposes an amended response or any further evidence being adduced by the respondent on the basis that it is produced very late in the day and he may not be able to get instructions in response.

13. Having given the matter due consideration, I will extend leave to the respondent to file today his amended response and his own affidavit today (which accords with Mr Ackman’s advice as to the state of readiness of the documents). 

14. I make clear that I am not making a determination that the documents in respect of which I have granted leave can be relied upon by the respondent at the trial. Neither am I condoning the respondent’s non-compliance with previous orders and directions for the timely and proper presentation of his case.  This is a case in which both parties have failed to comply with most dead lines.  I have granted leave so that the applicant (and the court) has an opportunity prior to the commencement of the hearing at 10.00 am next Monday to see and assess, at least from the point of view of relative prejudice, the further evidence upon which the respondent, belatedly, now seeks to rely.  If I did not grant leave to file, and thereby fix time lines for service, the applicant’s asserted inability to respond and the potential for an aborted hearing would become a self fulfilling prophecy. 

15. Absent consent, the respondent’s entitlement to rely on the further evidence (or any of it), will need to be pressed as a preliminary matter before the learned trial judge who will hear the arguments of both parties from the perspective of then being in a position to proceed with the final hearing.

16. Mr St John seeks some orders and directions.  He refers to the financial statement of the respondent and says that it is deficient in two respects, although it would not be safe to assume that he is limiting himself to the issues he identifies this morning.

17. First, in paragraph 59, which reflects the provisions in the Family Law Rules 2004 requiring the deponent to particularise property disposed by him or on his behalf 12 months before separation or since separation, the respondent has referred to two transactions, both involving shares involving funds of approximately $1,800,000. The respondent has not specified the dates of the dispositions on page 10. He might have done so somewhere else in the document but no one took me to it. The applicant and the respondent separated in November 1998 and have subsequently divorced and effected a final alteration of property interests.

18. It is conceded by Mr St John that dispositions prior to, and since, separation are not required but he does seek to capture the various property (real and personal) of which the respondent divested himself in favour of his wife, Ms K Hand, at or about the time of the issuance of the proceedings.  Mr Ackman informs the Court that that information will be in his client’s own affidavit to be filed today.

19. The other aspect in which Mr St John says that the respondent’s financial statement is deficient is in paragraph 57.  This deals with the respondent’s financial resources.  It appears at page 10 and then there is a further note on page 12 of the financial statement.  The respondent deposes

    I have an interest in properties registered in the name of [Ms K Hand], the details of which are exposed in my affidavit, sworn 13 January 2012.  The property at [Suburb T, Melbourne] was sold on 3 July 2012 for $3.5 million. 

20. I was not taken to the earlier affidavit material of the respondent but Mr St John’s complaint is that there is no evidence quantifying the extent of the respondent’s husband’s interest in the property to which he refers.  Something may be implied by the fact that the reference arises under “financial resources” but it cannot rest on an implication.

21. I sincerely hope that the matter can proceed on 6 August. Preparation of the matter has been in the hands of practitioners of high calibre for a long time at what I expect has been significant cost to the parties for professional fees and disbursements including expert evidence. 

ORDERS DELIVERED

1. This matter was mediated by the Honourable Mr Stephen O’Ryan in February this year. The mediation lasted two days and took place in two States with the parties being represented by senior counsel throughout.  The first day of the mediation was conducted in the Parramatta Registry where sufficient rooms were made available to the parties and the mediator through the good offices of Justice Collier.  This arrangement was made so that the applicant, who is in a wheel chair, could be in attendance.  The second day of the mediation was conducted without the applicant being present and with the mediator travelling to Melbourne. 

2. This case has been the subject of a number of mentions before me for directions for filing of documents.  As indicated, both parties were non-compliant up to a point.

3. Counsel for each party agreed to an estimate of hearing time of three days or less in the context of the fixture of the matter.

4. I have tried to accommodate times when counsel will be available.  The final hearing date of 6 August 2012 was not a date when either senior counsel said they were unavailable.

5. At the last mention, Mr Ackman raised the final hearing being adjourned so that he could attend to preparation of another matter (not part heard) in Melbourne which is due to commence the week following the final hearing listing of this matter on 6 August.  He was told that, if adjourned, this matter would not be able to be accommodated, in Parramatta, before March 2013 but there were no proper grounds for an adjournment in any event.  Mr Ackman said that he would retain this brief.

6. Mr Ackman now says that this case might take longer than the three days estimated.  He says that it could be a 3 to 5 day case.  Interestingly this submission was based on evidence filed on only 27 July which Mr Ackman says he has not read thoroughly and which Mr St John says that he (Mr St John) has not read at all.  I doubt that two sides of litigation can ever be perfectly prepared at the same time.  At this point, the parties as well as their practitioners should reflect on how much they want the litigation to be determined and, thereby, be delivered from perpetual preparation and the ever increasing expense associated with that preparation. 

7. I will make an order, which I understand Loughnan J customarily makes, requiring that any party who believes that the matter might not be able to start when listed or concluded when it is supposed to ought bring the matter before him as quickly as possible for a determination, so that now does conclude the reasons.

ORDERS DELIVERED

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 July 2012.

Associate: 

Date:  1 August 2012