BODILLY & HAND

[2011] FamCA 783

FAMILY COURT OF AUSTRALIA

BODILLY & HAND [2011] FamCA 783

FAMILY LAW – PRACTICE & PROCEDURE – Venue for final hearing determined in accordance with requirements of a litigant with special needs – case management - mediation

Family Law Act1975 (Cth)

APPLICANT: Ms Bodilly

RESPONDENT: Mr Hand

FILE NUMBER: MLC 10737 of 2009

DATE DELIVERED: 11 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 October 2011

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

ORDERS

IT IS ORDERED THAT:

1.The final hearing listed for 2 November 2011 be and is hereby vacated.

2.The final hearing of this matter be conducted in the Parramatta Registry of this Court on a date to be fixed.

3.This matter be listed for mention before me in Court on Thursday 8 December 2011 at 9.00 am NOTING THAT it is expected that by that date all expert evidence should have been filed and the issue of the husband’s capacity to pay will be the subject of a concession or be put in issue formally.

AND IT IS NOTED THAT the parties propose to mediate this matter with the Honourable Mr Stephen O’Ryan QC after 8 December 2011 and the matter will be listed for mention immediately following the conclusion of that mediation for any necessary directions for trial.
IT IS FURTHER ORDERED THAT:

4.There be liberty to the parties to apply.

5.My brief reasons for decision this day be transcribed and, when transcribed, a copy be made available to the parties NOTING THAT if the matter requires a defended hearing, it is expected to be ready to proceed by mid-January 2012.

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

Mr Bodilly

Applicant

And

Ms Hand

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter of Bodilly & Hand concerns the maintenance and ongoing financial support of the wife who is 53 years of age and suffers from multiple sclerosis.

2. The husband is 54 years old.  He is currently not in paid employment although appears to have some private consultancy interest.  He has married a second time and his wife and their family reside in Melbourne.  Much of the husband’s capital, of some millions of dollars, is in the name of his current wife by virtue of the husband having transferred it to her relatively recently.  Some funds were the proceeds of a redundancy type payment received by the husband upon the cessation of his high income earning employment.  Hitherto, there has been no issue as to funds or property in his wife’s name being accessible for the purpose of satisfying the husband’s obligations as will ultimately be set by this Court on a determination of these proceedings.  That is, the assets and relevant income of his current wife have been regarded by both parties and the court as being available to the husband.

3. The applicant wife and the respondent husband were married in 1983.  They separated in late 1998 and their marriage was dissolved in 2000.  By an amended application filed yesterday the wife seeks periodic payments of $3000 per week as and from the date of filing of her initiating application and a lump sum payment within 30 days of $100,000.  The wife’s application initiating proceedings was filed on 1 December 2009 so considerable arrears would arise if she succeeded with the relief that she seeks even allowing for payments which have already been made.

4. Mr St John SC acts for the wife.  Mr Ackman QC acts for the husband.

5. The matter has previously been mentioned before me for management and has been allocated a final hearing date.  At all times the husband has opposed the orders then sought by the wife.  However, as indicated, his opposition has not been based on a lack of capacity to pay but rather on the applicant’s “need” for the relief which the applicant has from time to time sought.  I have not made any calculations but my impression is that the relief now sought in the amended application is greater than any relief which has previously been sought in specific terms.

6. Today, senior counsel for the husband acknowledges that the husband has been served with the wife’s amended application but is yet to confer with the husband to discuss the amended application.  Mr Ackman QC is unable to say whether the husband stands by his previous concession as to a capacity to pay. 

7. It has been the case up until now that, in practical terms, the husband’s current wife would not need to give evidence or to be cross-examined.  Today, Mr Ackman is unable to say whether that is still the case.  In the event that the husband does not concede – the husband and his current wife do not concede -that the current wife’s assets are available to husband, senior counsel for the wife has foreshadowed that the husband’s current wife may need to be joined as a party to this proceeding.

8. The applicant wife lives in a north west suburb of Sydney, New South Wales.  She is wheelchair bound.  She needs special facilities to access buildings and to obtain treatment.  It appears that she must pay to be transported from her house.  Relevantly for the management of this proceeding, it is common ground that it is not practicable for the wife to travel to Melbourne to participate in and to observe the proceeding.  It is further agreed that with some difficulty she could travel assisted to the Sydney Registry at Goulburn Street, Sydney or to the Parramatta Registry at George Street, Parramatta;  but of the two the Parramatta Registry is far better equipped to the applicant wife’s needs as far as access is concerned.

9. There have been one or two timetables set for the filing of material.  Senior counsel did not labour the whys and wherefores as to why evidence has not been filed or was not filed on time principally, I think, by the applicant.  The obvious consequence is that the parties will not be ready for the hearing which was fixed for 2 November 2011.  However, everyone is forward looking and asks the court to determine the matter as soon as they are ready and, understandably, before the expert evidence which is eventually assembled becomes out of date.

10. There are four professional witnesses on behalf of the wife.  They are Professor K, Ms O who is an occupational therapist, Ms G who is a neuropsychologist and Mr F who is the wife’s accountant.  Since the evidence of those experts has been filed, the husband has arranged for a suite of appointments in which the wife can be assessed by his own experts.  The wife agrees to be assessed by the practitioners appointed by the husband.  It is an appropriate case for the parties to each be able to adduce relevant evidence from their own experts.  A neurologist’s appointment has been fixed for 27 October.  A neuropsychologist’s appointment is likely to occur some time next week.  It was scheduled for 17 October at 9.00 am but it is said that it is not feasible for the wife to travel from her home for an appointment at 9.00 am in Sydney.  There is an occupational therapist’s assessment available at the end of October, and that can be done in the wife’s home.  It is anticipated by counsel for the husband that their experts – the husband’s experts will need some three weeks to complete their reports.  It is hoped that that material will be available by the end of November 2011. 

11. Absent indication in the future to the contrary, each professional witness is required for cross-examination.  All professional witnesses are based in New South Wales.  In fact, it is only the lawyers and the husband who are based in Melbourne.  In this context, issue of venue has always been a live issue.

12. If the matter were to be heard here in Melbourne, the wife would be deprived of an opportunity to participate in and to have direct and spontaneous access to her legal advisers during the proceedings.  That would put the applicant wife in a less advantageous position than the respondent husband who can sit in the body of the court, observe all witnesses at close quarter and provide his solicitor and counsel with instructions contemporaneously.

13. I am satisfied that requiring the proceedings to be heard in a venue which does not permit the wife to observe and to participate in the proceedings and to have immediate and spontaneous access to her legal practitioners when a much more favourable venue exists would compromise her access to justice in the real and unacceptable sense.

14. Accordingly, I am satisfied that this matter should be heard in New South Wales rather than in Melbourne, Victoria on the basis that the wife will be able to attend court personally in New South Wales whereas she could not attend the court in Melbourne .

15. Senior counsel have not been shy in expressing a personal preference for the Sydney Registry over the Parramatta Registry.  Sydney is a Registry with which each are familiar, but they do not put it any more highly than that.  I understand from earlier mentions that the experts can appear as easily in Parramatta as in Sydney. 

16. I have been informed by my learned colleague, Collier J of the Parramatta Registry, that the Parramatta Registry can accommodate the case and the wife’s requirements on reasonable notice. 

17. As between the Sydney and the Parramatta Registries, I am satisfied that the Parramatta Registry is the preferable venue because it is most convenient to the wife.  Accordingly, I will now order that the final hearing take place in Parramatta so that all parties can start to make what logistical arrangements they need to make.

18. Previously there was mention of consideration by the wife’s lawyers of the need to appoint a case guardian for the wife, but that is a matter with which the parties do not appear to wish to proceed.  Likewise there was no mention today of an application that the wife not be cross examined.

19. The parties have agreed to undertake a mediation at which each will be represented by senior counsel who will be retained to represent them at trial. That is a significant financial commitment but it appears that each party accepts that, once the expert evidence is received, mediation will be a valuable opportunity for overall resolution of the matter.

20. The mediation was tentatively arranged for 26 October 2011 but will now have to be postponed until after the husband’s expert evidence is to hand.

21. It is agreed that the mediation will be convened by the Honourable Mr Stephen O’Ryan QC at a venue to which the wife can have ready access, albeit with assistance.  If it would suit everyone to conduct the mediation in the Parramatta Registry, someone should contact my Associate and request that she make enquiries to see if that can be done.  I suspect there would be no impediment and everyone could then experience first hand the venue at which any final hearing will be conducted.

22. I am informed that the parties will look to December 2011 as an appropriate time to reschedule the mediation, subject of course to the availability of their chosen mediator.  I am confident that the parties and those who advise them have a good idea of the financial and emotional impost of a defended hearing.  I commend them all for agreeing to mediate as they have.  It will be an expensive but valuable event in the proceedings. 

23. I will accordingly vacate the hearing that was listed for 2 November 2011 in favour of a date to be fixed.

24. The matter will be mentioned before me on 8 December 2011.  At that mention, the matter should be ready to proceed to mediation.  I will expect the parties to tell me, through their practitioners, that there is nothing outstanding by way of expert evidence.  It would be preferable for the experts to have conferred formally and to have reduced to a memorandum the differences in their opinions and the implications of those differences.  There will need to be some positive statement by the husband to the effect that it is not necessary that his current wife be joined to the proceedings because her assets are accessible to him.  The location of the mediation should have been agreed.  I will make orders in support of the mediation including directions for costs notifications and hear from the parties whether there is an objection to the costs notifications being exchanged.

25. The matter will be listed before me for mention by electronic means immediately upon the conclusion of the mediation for the purpose of me making any necessary directions for trial.  I assume that the mediation will be not before the second or third week of December 2011.  At this stage I am not able to allocate a final hearing on any date in December 2011, January or February of 2012.  I already have listings for those months and as this proceeding would require me to sit in Parramatta and I cannot list it together with matters which will proceed in Melbourne.  Regrettably, this means that the matter cannot be heard by me until March 2012.  Of course, between now and the mediation, time may arise in my judicial calendar so that I can hear the matter earlier than in March 2012.  Alternatively, another judge from Sydney, Melbourne or elsewhere may be available to hear the matter, at Parramatta, at a date earlier than March 2012.  My enquiries of Collier J indicate that a resident judge will not become available in the Parramatta Registry.

26. I note that the parties desire a hearing sooner than March 2012.  I estimate that it is likely to be ready to proceed by mid-January.  To that end, I will transmit a copy of these reasons to Collier J in Parramatta, the case management judge in Melbourne and the Deputy Chief Justice in case their Honours can allocate alternative judicial resources to determine the matter sooner than I can get to it. That concludes these reasons which should be transcribed.

    ORDERS DELIVERED

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 11 October 2011.

Associate: 

Date:  12 October 2011