Buick and Boesten

[2016] FamCA 48

FAMILY COURT OF AUSTRALIA

BUICK & BOESTEN [2016] FamCA 48

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment – where the husband seeks an order that the wife be directed to provide to the single expert witness her response to the matters raised – where the wife seeks an adjournment of the trial and orders in relation to compliance dates and the filing of documents – where the adjournment is sought on the basis of the mother’s high-risk pregnancy – where medical evidence is before the Court – where the Court is satisfied that the risk to the wife’s health is sufficient to require the Court to adjourn the trial – where orders are made vacating the trial and adjourning the matter for trial directions.

Aon Risk Services Australia LTD v Australian National University (2009) 239 CLR 175
State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT: Mr Buick

RESPONDENT: Ms Boesten

FILE NUMBER: ADF 3045 of 2010

DATE DELIVERED: 27 January 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC

SOLICITOR FOR THE APPLICANT: Martin Robinson Solicitors

COUNSEL FOR THE RESPONDENT: Ms Ross

SOLICITOR FOR THE RESPONDENT: Robert Chrzaszcz & Associates Pty Ltd

Orders

1. The trial listed before the Honourable Justice Dawe for the week commencing 7 March 2016 is vacated and the compliance listing for 24 February 2016 is vacated and paragraphs 3, 4, 5, 6, 7, 8, 9 and 12 of the order dated 25 September 2015 are discharged.

1. The matter is further adjourned to Friday 26 February 2016 at 10.00 am before the Honourable Justice Dawe allowing two [2] hours for trial directions, setting the specific date of the trial (after consultation with Counsel either being the week commencing 22 August 2016, 29 August 2016 or 5 September 2016) for five [5] days; the issues in relation to Mr N’s report and the production of documents.

1. Any affidavit upon which either party seeks to rely at the hearing on 26 February 2016 to be filed and served by 4.00 pm on Friday 19 February 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Buick & Boesten 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: ADF 3045 of 2010

Mr Buick

Applicant

And

Ms Boesten

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the hearing on interim issues in a matter which has been before the Court for a considerable period of time.  The proceedings currently before the Court were issued in 2010 and have been adjourned for various reasons since that time.  The Application in a Case filed by the husband on 8 December 2015 sought an urgent listing and an order:

   That the wife be directed to provide to the single expert witness, [Mr N] of the BDO, within seven days her response to the matters raised by [Mr N] in his draft report dated 21 September 2015.

2. There was an affidavit filed in support of that.  The matter was listed for 22 December 2015, when the matter came on before Registrar Paxton, who adjourned it to me this morning. 

3. The response filed by the wife on 17 December 2015 sought the orders as set out in the attachment, basically seeking the adjournment of the trial, which was listed for 7 March 2016, and orders ancillary to that in relation to adjourning compliance dates and the filing of documents, and seeking orders also in relation to the Notice to Produce. 

4. I am declining to make the orders sought by the wife in paragraphs 7 and 8 of her response to the Application in a Case. 

5. The other matters sought by the wife in the response to the Application in a Case are to adjourn the trial and set aside the orders for the preparation of the trial.  It also seeks orders in relation to a Notice to Produce.  The orders sought in relation to the Notice to Produce were contested by the husband on the basis that they are inappropriate orders being sought, taking into account the affidavit of documents which has already been filed and the rules of the Court. 

6. The difficulty that exists in relation to those matters is that they are connected to the preparation of the matter for trial. 

7. I turn to the history of the proceedings.  As I indicated, the proceedings have been outstanding for a considerable period of time, and after numerous attempts by the Court to list the matter, specific orders were made in some detail by me on 25 September 2015, when both parties were represented by counsel, listing the matters for trial before me in the week commencing 7 March 2016 for five days. 

8. There were then specific orders made for the preparation and filing and serving of documents in order to prepare the matter for trial, including that there be a compliance check on 24 February 2016 and that the husband file his documents by 4.00 pm this coming Friday, 29 January 2016, and the wife’s responding documents being filed by 12 February.  There were also specific directions made for other matters to prepare the matter for trial, and indication of the witnesses likely.

9. It was noted at that time that there was a possibility that evidence of either or both of Mr O and Mr N would be required in relation to the financial circumstances of the parties, in particular the value of and intricacies related to the financial circumstances, and in particular the trust and entities used by the parties to these proceedings.  Those orders were made in September of last year, giving the parties ample time to get the matter ready for trial, taking into account that Mr N was preparing the single expert valuations of relevant entities. 

10. The husband then filed an Application in a Case on 8 December 2015 in relation to the information or responses being requested by Mr N by the wife. 

11. Subsequently on 17 December 2015 (obviously some months after the directions hearing listing the matter for trial) the wife filed the Response to the Application in a Case which seeks that the trial for March 2016 be adjourned.  Accompanying that Response to the Application in a Case are several affidavits, including the affidavit of the wife in relation to her health situation and the affidavits of her general practitioner and obstetrician. 

12. For the purposes of this ex tempore judgment, I refer to the affidavits of the General Practitioner, Dr P filed on 21 January 2016 and the affidavit of Obstetrician and Gynaecologist, Ms Q, filed on 21 January 2016.  Annexed to the affidavit of the general practitioner is the letter of 15 January 2016 from the general practitioner to the wife’s solicitors which is just in excess of two pages.  That is a document which is referred to by the obstetrician in her affidavit.  In particular, the affidavit of the obstetrician says in paragraph 16 and 17:

    16.      I have read he reports issued by [Dr P]. 

    17.      I agree with the opinions and history stated by [Dr P]

    (1) in her report of 16 or 18 December 2015 (page [8]);  and

    (2) in her report of 15 January 2016 (page [9]).

13. She then says at paragraph 18 and 19:

    18.I have read the affidavit of [Dr P] deposed to on 20 January 2016. 

    19.I agree with the opinions stated by [Dr P] at paragraphs 13, 17 and 18 of her affidavit.

14. She then refers, in her affidavit, to having an appointment with the mother tomorrow, 28 January 2016, to consult on Ms Boesten in respect of the ongoing management of her pregnancy.  It was then a suggestion that she could prepare a further report following that interview

15. The adjournment of the consideration of the question of the listing of the trial was opposed by counsel for the husband on the basis that it should be dealt with today and not adjourned further. 

16. The counsel for the mother sought that if the adjournment was not going to be granted then the matter should be adjourned further to allow for the report of Ms Q to be obtained.

17. I take into account, however, that the affidavit filed by the obstetrician specifically refers to the opinions stated by Dr P in her affidavit of paragraphs 13, 17 and 18.  Those paragraphs are as follows:

    13.In my opinion, because of [Ms Boesten’s] age (over 35 years) she is in a high-risk health category.

    …

    17.In my opinion, if [Ms Boesten] proceeds to prepare for and attend a trial in this honourable Court in March 2016, that could result in an increased risk of premature rupture of membranes and/or premature delivery in addition to increased post-risk of post-natal depression and harm to the baby.

    18.Page 1 is a true copy of a letter from me dated 16 December 2015 which I prepared for [Ms Boesten] in forming my opinion:

    18.1    that [Ms Boesten] is in a high-risk pregnancy;  and

    18.2that the stress involved in preparation for and attending a trial is not recommended for a woman in a high-risk pregnancy;  and

    18.3that a delay of the trial in March 2016 would be beneficial for both [Ms Boesten] and her fetus.

18. The report that is attached to the affidavit of Dr P, being the letter of 15 January 2016, is a detailed letter of just in excess of two pages.  Under the heading “General Statement” it states:

    Pregnancy is a very stressful time for many women, both emotionally and physically. …

19. It then refers to, later in that same paragraph:

    …Additional stress during the time of pregnancy can have deleterious effects upon both the developing foetus and the woman herself.

    and then it deals specifically with this matter and refers to the age of the wife in these proceeding, being 46.  In paragraph 2:

    I have serious reservations about her medical fitness to ensure the additional stresses of a trial in March and the risks involved in additional stress at such a critical time in her pregnancy, which will no doubt more likely be her final pregnancy.

20. It then sets out the specific references to cross-examination which could jeopardise her own health and the health of the developing foetus. 

21. I will not refer and read into these ex tempore remarks all of the material in Dr P’ letter of 15 January 2016.  But I accept that in the opinion of the mother’s general practitioner because of her age and previous conditions of complications in pregnancy, including Gestational Diabetes Mellitus, that there could be problems which will be clearly exacerbated by the stress of preparing for the trial and the stress of participating in a trial in these proceedings.  I also take into account that the obstetrician, a specialist in this area, agrees with the opinions expressed by the mother’s general practitioner. 

22. I do not accept on the face of it that these are not opinions which the Court should take into account.  I am faced with the reports of the general practitioner and the obstetrician raising serious concerns about the risk to the health of the mother and foetus.  As such, I accept that there cannot be any guarantee that these risks would bring about the actual problems referred to but they are clearly referred to as risks which need to be taken into account when weighing up the matters which should be taken into account when adjourning the trial. 

23. The authorities clearly indicate that an adjournment of trial has to take into account and give serious consideration to the rights and expectations of both parties and the possible risks of harm being caused for various reasons, not just financial but also psychological to the husband in these proceedings.  I take into account that the proceedings have been outstanding for some time and that there is an obligation on the Court to deal with matters such as requests for adjournments in a way which ensures that the Court takes into account what is fair and just for both of the parties. 

24. In that regard, the question of the issues espoused in State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 and the subsequent decision of the Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 are matters which I do take into account and need to balance the rights of both parties in determining such a significant matter as adjourning a trial in a matter which has been awaiting trial for a considerable period of time and the disadvantage to the parties in setting aside trial dates which have been fixed and directions which have already been made in order to get the matter ready for the trial.

25. Balancing all of those factors, including in this case only an insignificant matter, the disruption for the Court itself, I think it is necessary to weigh carefully the disruption and disadvantage to the husband which will be significant.  However, taking into account all of the factors, I am satisfied that the risk to the wife’s health and the health of the foetus is sufficient to require the Court to adjourn the trial and therefore discharge the orders which require that matters be prepared for the trial.

26. When considering those matters, I have not referred specifically to the outstanding proceedings which are before the District Court of South Australia in which the husband is the defendant in proceedings.  They have been outstanding for some time.  I have previously given a decision in relation to the solicitor who is the plaintiff in those proceedings continuing acting for the wife.  That is only a minor factor which is not weighed in this case upon the adjournment of the trial date.  I do that on the basis that the parties would have been aware of the proceedings for a considerable period of time and that matter was not, to my recollection, raised to be dealt with when I fixed the date for the trial.

27. As an ancillary matter, however, it may be relevant when fixing a new date for the trial to have proper submissions made in relation to the timing of the trial if there is a District Court trial being heard in August 2016. 

28. I am being asked on behalf of the husband that, if the trial is adjourned, not to adjourn it off to the date sought by the wife, which was in September 2015, but to list it earlier than September.  The difficulty in relation to that matter arises certainly out of the listings of the Court and my availability.  As such, my availability commences in the beginning of August and I am aware that the other judicial officer in this Court registry is disqualified in this matter and I currently do not have listings for visiting judicial officers.

29. The wife seeks that the trial be adjourned to allow her time to take care of a young baby, breast-feed and be able to prepare for the trial in an appropriate way.  If the Court takes into account, as I have done, the fact that the child is due to be delivered in May of this year, then a trial in September would allow at least three months for the preparation of the matter for trial, for the mother to be in an appropriate condition and for the child to be in an appropriate condition to allow the trial to proceed in September.  The dates towards the end of August 2016 would also be suitable dates.

30. At this stage, a listing of the matter should be at a time convenient to counsel for the parties and I will therefore consider the listing of the matter for trial in the weeks commencing 22 or 29 August 2016 and 5 September 2016 and we will request the instructing solicitors to obtain counsel’s dates of availability so that an exact fixing of the trial can be made and appropriate orders made in relation to the filing and preparation of material. 

31. The issue in relation to production of documents and the finalisation of Mr N’ report are matters which should be dealt with in the meantime.  I am proposing to adjourn those matters briefly to enable proper instructions and negotiations to take place and at that hearing would anticipate that also the parties would have information concerning the finalisation of the N report, any other expert’s report and the availability of counsel.

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 27 January 2016.

Associate: 

Date:  10 February 2016