Brayton & Brayton (No 4)
[2022] FedCFamC1F 631
•25 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Brayton & Brayton (No 4) [2022] FedCFamC1F 631
File number(s): SYC 5516 of 2017 Judgment of: WILSON J Date of judgment: 25 August 2022 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING LIST – husband needs more time to file and serve his trial affidavit – litigation guardian needing to file points of defence – orders made. Division: Division 1 First Instance Number of paragraphs: 7 Date of last submission: 24 August 2022 Date of hearing: 24 August 2022 Place: Melbourne Solicitor for the Applicant: Barkus Doolan Solicitor for the First Respondent: Landerer & Company Solicitors Solicitor for the Second to Eighteenth Respondents: WRP Legal & Advisory Litigation guardian: Parks Family Law ORDERS
SYC 5516 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRAYTON
Applicant
AND: MR BRAYTON
First Respondent
MS AA BRAYTON
Second Respondent
MR TOBLER (and others named in the Schedule)
Third Respondent
order made by:
WILSON J
DATE OF ORDER:
25 AUGUST 2022
THE COURT ORDERS THAT:
1.The time limited by paragraph 1 of orders made by me on 22 August 2022 is extended from 4:00pm on 25 August 2022 to 4:00pm on 30 August 2022.
2.The litigation guardian must file and serve points of defence to the latest iteration of the applicant’s amended points of claim on or before 4:00pm on 31 August 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brayton & Brayton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Upon handing down my reasons[1] the husband’s solicitor bluntly told me that paragraph 1 of the orders made that day was wrong (his words).
[1] Brayton & Brayton (No 3) [2022] FedCFamC1F 622.
Aside from the blunt and impolite language he used, two matters emerged. First, he said he and his client were working around the clock to prepare the husband’s trial affidavit. Second, he said that despite the order in paragraph 1 requiring his client to file and serve his trial affidavit by 25 August 2022, the simple reality is that the husband’s affidavit material will not emerge until 30 August 2022. He said that when ex tempore reasons for judgment were handed down on 22 August 2022, the husband was given until 30 August 2022 to file and serve his affidavit and that the 30 August 2022 date has somehow been truncated to 25 August 2022.
Mr CK expressed a similar submission.
Mr CQ on behalf of the litigation guardian contended that he will not be able to provide a defence to the latest version of the amended points of claim until after the commencement of the trial.
Ms CR sought orders for the production of documents from the registry of the Supreme Court of New South Wales. Those orders were agreed by all parties so I pronounced them and personally signed the relevant order.
That left Mr CQ’s contention that the litigation guardian could have until some unspecified date after the commencement of the trial before filing a defence to the latest version of the points of claim. The whole purpose of a pleading (whether described as points of claim or as a statement of claim) is to give notice in advance of a trial of the propositions of fact on which the party filing the pleading relies. No useful purpose is served if the litigation guardian fails to give notice of her defence ahead of the trial. When I put that to Mr CQ and sought his response to the date by which he could file his response, he said 31 August 2022. In those circumstances I order the litigation guardian to file and serve her points of defence to the latest iteration of the applicant’s amended points of claim by 4:00pm on 31 August 2022.
Lastly, the statements by the husband’s solicitor about the readiness of the husband’s trial affidavit concern me. The husband’s solicitor made it very plain that his client’s trail affidavit would not be ready before 30 August 2022. In those circumstances it seems to me that I have little choice but to give him that time. An alteration to my orders published yesterday will be required to extend the date in paragraph 1 of those orders to 4:00pm on 30 August 2022.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 25 August 2022
SCHEDULE OF PARTIES
SYC 5516 of 2017 Respondents
Fourth Respondent:
AM PTY LTD
Fifth Respondent:
CC HOLDINGS PTY LTD
Sixth Respondent:
DD GROUP PTY LTD
Seventh Respondent:
EE INVESTMENTS PTY LTD
Eighth Respondent:
FF PTY LTD
Ninth Respondent:
GG HOLDING PTY LTD
Tenth Respondent:
AN HOLDINGS PTY LTD
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