Boston and Boston (No 2)
[2016] FamCA 672
•12 August 2016
FAMILY COURT OF AUSTRALIA
| BOSTON & BOSTON (NO 2) | [2016] FamCA 672 |
| FAMILY LAW – PRACTICE AND PROCEDURE – undefended hearing – where the wife seeks an order that the matter proceed undefended – where the application is opposed by the husband – where the husband seeks an adjournment – where consideration is given to the significant delay – where the Court finds it is not just and equitable to hear the proceedings – where a short adjournment is granted to enable the husband to comply with trial directions – where the husband has leave to obtain an updated valuation of the former matrimonial home – where the husband has leave to issue further subpoena – where the adjournment is condition upon the wife retaining the former matrimonial home pending judgment. |
| Family Law Act 1975 (Cth) s 97, 121 Family Law Rules 2004 (Cth) r 11.02, 11.03 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
| APPLICANT: | Ms Boston |
| RESPONDENT: | Mr Boston |
| FILE NUMBER: | ADC | 1946 | of | 2012 |
| DATE DELIVERED: | 12 August 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 12 August 2016 |
REPRESENTATION n/a
| COUNSEL FOR THE APPLICANT: | In Person |
| SOLICITOR FOR THE APPLICANT: | Norman Waterhouse Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Birchall |
| SOLICITOR FOR THE RESPONDENT: |
Orders
On or before 4.00 pm on Wednesday 31 August 2016 the husband file and serve an affidavit to which is annexed confirmation from ANZ Bank (“the bank”) and Suburb EE City Council (“the council”) that:
(a)the husband has paid all debts outstanding and now due to them in relation to the property at I Street, Suburb K in the State of South Australia; or
(b)neither the bank nor the council will take steps to evict the wife from the premises or force the sale of the premises at I Street, Suburb K in the State of South Australia pending delivery of judgment in the final property settlement proceedings (hereinafter referred to as “the assurance affidavit”).
Upon filing of the assurance affidavit the application by the wife for the property settlement proceedings to be heard undefended will be dismissed.
If the assurance affidavit is not filed by 4.00 pm on Wednesday 31 August 2016 the property settlement proceedings of the wife are listed for undefended hearing before the Honourable Justice Dawe commencing at 10.00 am on Wednesday 5 October 2016 for three [3] days.
If the assurance affidavit is filed by 4.00 pm on 31 August 2016:
(a)the property settlement proceedings between the parties are listed for final hearing before the Honourable Justice Dawe commencing at 10.00 am on Wednesday 5 October 2016 for eight [8] days;
(b)on or before Friday 16 September 2016 the husband file and serve upon the wife:
(i)a copy of proposed Minute of Orders setting out with precision the final orders sought;
(ii)the affidavits of evidence in chief of all permitted witnesses (including the husband) UPON NOTING the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief SAVE AND EXCEPT the reports of the experts;
(iii)a list of all exhibits upon which he will seek to rely;
(iv)a Financial Statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).
UPON NOTING that the husband’s only permitted witness is his brother Mr BB Boston (apart from proposed subpoenaed witnesses);
(c)if the husband fails to comply with subparagraph (b) hereof within the prescribed time the proceedings are listed for undefended hearing before the Honourable Justice Dawe commencing at 10.00 am on Wednesday 5 October 2016 for three [3] days.
The husband file and serve a Case Outline by 4.00 pm on Friday 16 September 2016 containing the following:
(a)a concise set of orders sought if different from those already filed;
(b)a list of the applications and affidavits to be relied upon;
(c)a list of assets and liabilities;
(d)a list of objections to evidence upon which rulings are required; and
(e)a dot-point summary of argument in relation to the issues in dispute (in no more than one A4 page)
PROVIDED THAT such Case Outline may be filed electronically to …
The wife has leave to file further affidavit in response PROVIDED THAT the same is filed and served by 4.00 pm on Tuesday 27 September 2016.
The husband is granted leave to obtain an updated valuation of the former matrimonial home at his cost PROVIDED THAT
(a)within fourteen [14] days from today the husband’s solicitors provide to the wife a letter setting out the name and qualifications of the valuer being proposed;
(b)any inspection take place at a time agreed to by the wife on a week day no later than Friday 2 September 2016;
(c)the valuation is filed and served upon the wife on or before Friday 16 September 2016; and
(d)the wife is at liberty to provide the valuation to Mr Camens and thereafter to file and serve any updated valuation by Mr Camens.
The husband is granted leave to issue subpoenas to give evidence at trial to:
(a)Mr FF (husband’s former business partner);
(b)Ms GG (wife’s mother); and
(c)Mr GG (wife’s father)
PROVIDED THAT:
(i)the subpoenas specify 10.00 am on Wednesday 5 October 2016 as the time to attend this Court; and
(ii)the subpoenas are served on or before Friday 16 September 2016.
PROVIDED THAT the husband has filed the assurance affidavit by Wednesday 31 August 2016 on or before Friday 9 September 2016 both the husband and wife provide to the other party copies of the following:
(a)each party’s individual income taxation returns and notices of assessment for financial years ended 30 June 2012, 2013, 2014 and 2015;
(b)all bank statements for all accounts in the name of the party or entities controlled by them from 10 May 2012 to date;
(c)all taxation returns and financial statements for the last three financial years for any company in which the husband or the wife are a director, shareholder or has any other interest and any trust of which the party is an appointor, trustee or beneficiary including, but not limited to, any business known as:
(i)V Pty Ltd;
(ii)T Pty Ltd;
(iii)HH Pty Ltd; and
(iv)Business with Mr A.
(d)Any correspondence from the ANZ Bank in the last six [6] months in relation to loans secured against the former matrimonial home.
The husband and wife have leave to provide copies of these orders and today’s judgment to the ANZ Bank and Suburb EE City Council UPON CONDITION that the bank and the council are made aware of the provisions of s 121 of the Family Law Act 1975 (Cth) protecting public dissemination of the information.
All outstanding interim issues are adjourned to the commencement of the trial.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boston & Boston (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 ADELAIDE |
FILE NUMBER: ADC 1946 of 2012
| Ms Boston |
Applicant
And
| Mr Boston |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 2 June 2016, the wife filed an Application in a Case seeking that the outstanding financial proceedings between the husband and wife be heard as an undefended matter. The husband now opposes that application and seeks orders permitting him to file material and that the trial be adjourned. The background to these proceedings is obviously relevant. The proceedings commenced in 2012, orders were made in the Federal Magistrates Court (as it then was). Subsequently the matter was transferred to this Court. There have been several attempts to list the matter for final hearing.
The children’s issues were resolved after the trial date by consent and orders were made in March 2015.
The wife has been unrepresented for some time. The husband on some days has been unrepresented but at the recent significant dates, he has had solicitors and counsel representing him.
In my recent judgments concerning the dismissal of the husband’s application that I be disqualified from further hearing, the Court file indicates many attempts which have been made by the Court to list and hear the financial matters in dispute. In particular on 28 January 2016, the parties were advised that directions for trial would be made by the Court on 8 March 2016.
On 28 January 2016, the husband was represented by counsel and his solicitors were C & F Lawyers. On 8 March 2016, when the matter came before me, C & F Lawyers were still the husband’s solicitors and he was also represented by counsel.
Detailed specific orders were made on 8 March 2016 to prepare the financial matters for final hearing commencing before me on 1 August 2016. A compliance check date for 26 July 2016 was set. The wife filed a large number of documents including subpoenas and an affidavit.
The husband did not file any documents pursuant to the orders for directions to prepare the matter for trial until 29 June 2016 when he filed the application seeking that I disqualify myself and the affidavit referring to that matter.
At the hearing before me on 2 August 2016, the husband was unrepresented. His previous solicitors were on file until 1 August 2016 when the husband filed an address for service. At the hearing on 2 August 2016, I noted that prior to my request of the husband specifically on that day, he had not given any explanation for his failure to comply with the Court orders made on 8 March 2016 which required him to file and serve his evidence by 4.00 pm on 1 June 2016. I adjourned the matter on 2 August 2016 to 5 August 2016 when the husband was represented by senior counsel, Ms Pyke QC.
At the husband’s counsel’s request, I adjourned the matter again to 11 August 2016 when I continued hearing submissions concerning the matter being heard undefended.
The hearing of this issue resumed on 11 August 2016 when the wife continued to be unrepresented and the husband was represented by solicitors and Mr Birchall of counsel. The Court was then provided with a response of the husband, an affidavit of the husband and his new solicitor. These documents were only received by the wife that morning.
The provisions of the Act and in particular, subsection 97(3) provides that:
In proceedings under this Act, the Court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.
The rules in relation to case management clearly give the Court power to deal with matters where a party does not comply with the Court orders. Rule 11.02, in particular, subrule (2), provides:
If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a) dismiss all or part of the case;
(b) set aside a step taken or an order made;
(c) determine the case as if it were undefended;
(d) make any of the orders mentioned in rule 11.01;
(e) order costs;
(f) prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g) make any other order the court considers necessary, having regard to the main purpose of these Rules. (and the reference there is rule 1.04).
It is noted as part of those rules that the list does not limit the powers of the Court.
The provisions of the rules mentioned in rule 1 give the Court power to dispense with compliance with any of the rules but in considering whether to make an order under that rule, the Court may consider the main purpose of the Rules, the administration of justice, whether the application has been promptly made, whether noncompliance was intentional and the effect that granting relief would have on each party and the parties to other cases in the Court. Rule 11.03 refers to the granting of relief from the effect of rule 11.02 and, in particular, rule 11.03, subrule (2) says:
In determining an application under subrule (1), the court may consider:
(a) whether there is a good reason for the non-compliance;
(b) the extent to which the party has complied with orders, legislative provisions and the pre-action procedures;
(c) whether the non-compliance was caused by the party or the party's lawyer;
(d) the impact of the non-compliance on the management of the case;
(e) the effect of non-compliance on each other party;
(f) costs;
(g) whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and
(h) if the application is for relief from the effect of subrule 11.02(1) – whether all parties consent to the step being taken after the specified time.
Clearly, the Rules also provide for consideration of a variation to those Rules in appropriate circumstances.
In the hearing before me, counsel for the husband referred to the Full Court decision of Zane & Allan [2008] FamCAFC 115. That case does not challenge the capacity of the Court. It is readily distinguished from this case due to the different facts.
The wife disputed many of the matters referred to in the affidavit received in Court from the husband. She referred to the High Court decision of Aon Risk Services Australia Ltd & Australian National University (2009) 239 CLR 175. In particular, I note that the Court should also consider that:
… speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings.
That decision also emphasises the obligation of parties to comply with the directions and orders of the Court. That decision also refers to the need for some explanation for the delay to be considered.
The wife also referred to the decision of the Full Court of the Family Court of Australia in Jarrah & Fadel [2014] FamCAFC 14. This 2014 decision referred to the High Court decision of Aon RiskServices Australia Ltd v Australian National University (supra) and dismissed the father’s application against the refusal to adjourn. I have taken into account all of those authorities.
Turning then to the discussion and findings I have made. It is clear that the evidence and principles upon which the husband relies have been set out in the affidavits of the husband and his new solicitor and the submissions from his counsel. The husband alleges in his recent affidavit that he focused on his application that I disqualify myself. He alleges that his then solicitor “advised him that it was unlikely that the trial would continue”. In his affidavit he apologised to the Court for his failure to comply with the trial direction.
His affidavit suggested that if the trial was adjourned, he would “meet the interest associated with the debts to ANZ bank secured against the home from the date of the adjournment to the conclusion of the trial from his property settlement entitlement”. I requested that the husband consider immediate payment of any outstanding debts due to the ANZ and Suburb EE Council which the wife had suggested was in total of $102,000. His instructions to his counsel were that he could not pay those monies.
I accept that at this stage, the wife has not provided reliable evidence of the amounts outstanding or the current risk of foreclosure and sale of the former matrimonial home, but documents already on the file indicate that such steps were taken in the past.
The Court takes into account that there have been orders made for interim property settlement providing both parties with funds. However, at this stage, it is not possible to determine in a reliable way the use of those funds and whether that should affect the orders to be made today.
To offset any serious disadvantage to the wife, it is necessary to provide that if there is an adjournment, it will be on conditions that the wife will be able to retain the former matrimonial home pending judgment.
Taking into account the principles of Aon RiskServices Australia Ltd v Australian National University (supra) and the husband’s inappropriate advice from his solicitors, I am satisfied that it is not just and equitable at this stage to hear the proceedings on an undefended basis. That therefore makes it appropriate for there to be a short adjournment to enable the husband to comply with the trial directions. Unfortunately, the first date available for trial is now Wednesday, 5 October 2016, for only eight days.
Directions will be made which require appropriate documents to be filed and appropriate discovery.
The valuation of the former matrimonial home was completed in July 2015. With the extended date for the trial now, it is appropriate for further consideration to be given to updating that valuation. This is also the case because further work has been carried out on the property since that valuation was completed. It is therefore appropriate for the husband to have leave to obtain at his cost an updated valuation. The wife should cooperate with the valuer to permit inspection on reasonable notice.
Any expenses or losses incurred by the wife as a result of the adjournment can of course be taken into account in the final determination of the proceedings.
The husband also sought orders permitting him to subpoena the wife’s parents to give oral evidence. The wife opposed this. Her parents are elderly and there are issues concerning their health. These will be determined if the subpoenas are challenged. Although the Court appreciates the concern of the wife, this must be balanced against the wife’s claims that she owes her parents large sums of money. It is therefore appropriate to grant leave as sought by the husband provided the subpoenas are served promptly.
The other proposed subpoena was to the husband’s former business partner who will apparently give evidence relating to the disposal of the husband’s business interests.
I have considered the application for the adjournment of the trial and it is appropriate to make orders upon conditions that the wife’s ongoing use and possible retention of the former matrimonial home is protected.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 August 2016.
Associate:
Date: 16 August 2016
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