Clovelly and Clovelly (No 4)

[2010] FamCA 774

FAMILY COURT OF AUSTRALIA

CLOVELLY & CLOVELLY (NO. 4) [2010] FamCA 774

FAMILY LAW – COSTS – Interlocutory  

Family Law Act 1975 (Cth) ss 60CC, 117

Allesch v Maunz (2000) FLC 93‑033
Gallo v Dawson (1993) 93 ALR 479

APPLICANT: Ms Clovelly

RESPONDENT: Mr Clovelly

FILE NUMBER: CAF 655 of 2005

DATE DELIVERED: 6 August 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 6 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms B. Smithies

SOLICITOR FOR THE APPLICANT: Legal Aid Commission, ACT

COUNSEL FOR THE RESPONDENT: Self-represented litigant

SOLICITOR FOR THE RESPONDENT: Self-represented litigant

Orders

IT IS ORDERED THAT:

1. The applicant wife be appointed trustee for the purposes of the sale of the former matrimonial home at O in the Australian Capital Territory.

2. Either party have liberty to apply about the terms of the enforcement orders, in particular any practical issues resulting from the agreement or failure to agree between the parties.  I note that the husband prefers to be communicated with by ordinary mail although it would seem in the circumstances of this matter that e‑mail may well be a more effective means of communication.  If there are difficulties in communication and the implementation of these orders the liberty to apply previously referred to may be appropriate.

3. I note and agree the communications between the husband and the wife may be by e-mail and that the husband agrees that this is appropriate.

4. The husband will pay in relation to the wife’s costs of today the sum of $300.00, such sum to be paid on or before 31 August 2010. 

5. Before close of business today, the husband deliver a complete set of all outdoor and indoor keys for the premises at O to the offices of Mr WR, Principal, WR Real Estate, …, Australian Capital Territory, and that in the event he fails to do so a warrant issue to the Marshal to seize the keys and deliver them to the Registry.

6. Provided it is consistent with the Residential Tenancies Act 1997, Mr WR or an agent from his firm is permitted to enter into the premises at O for any purpose associated with the marketing and sale of the property at O.

7. The Registrar is authorised and directed to sign any letter or notice to the tenant, consistent with the Residential Tenancies Act 1997, if the husband should fail to sign any such letter or notice within 48 hours of the letter being presented to him.  It is noted that for this purpose the letter may be sent to him by e-mail.

8. The Registrar execute an authorised agency agreement between the husband and the agent.

9. In the event the husband and wife are not able to agree on a conveyancing solicitor within 14 days, the President of the Law Society nominate a solicitor to act in relation to the sale.

10. For the purposes of the sale, the building inspection be conducted by, and the building report be prepared by IBIS.

11. The agent is authorised to take photographs of the premises and to erect signs in the premises for the purposes of the sale and to do any other things, consistent with the Residential Tenancies Act 1997and reasonably connected with the sale of the property.

12. The husband furtherwith provide to the agent Mr WR a copy of the current tenancy agreement.

IT IS NOTED that publication of this judgment under the pseudonym Clovelly & Clovelly is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 655 of 2005

MS CLOVELLY

Applicant

And

MR CLOVELLY

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the proceedings before me today involved two issues.  One is a continuation of the Less Adversarial Trial in relation to C (the child) and in particular the resolution about what additional evidence might be required to enable the finalisation of the proceedings before me in connexion with the time that the child will spend with her mother and father. 

Matters concerning the child

1. On 23 July 2010, I allocated 1 and 2 November 2010 as days on which the Less Adversarial Trial about the child might be finalised. 

2. In furtherance of that finalisation, I ordered that each party file any affidavit upon which he or she sought to rely before 4.00 pm on 13 October 2010.  In addition to that, the husband, who at that stage had had the advantage of reading the family report, clearly wanted to have an opportunity to obtain a second opinion to – in the words of my order number 7 made on 23 July 2010 – "explore the possibility of obtaining further expert advice from an appropriately qualified person". 

3. The order was qualified, however, on the following basis that “if the parties had not reached agreement about the name of the expert, the expert's availability, how the expert would be paid and the terms of reference for the expert on or before [6 August 2010], then no arrangements for an additional expert report [would] be made and no evidence from an additional expert [would] be received in the final proceedings”. 

4. Today, it appears that the husband had made some inquiries, as he sets out in a communication sent by e‑mail to the Registrar of the Family Court of Australia and copied to the Legal Aid Commission, but has been unable to locate an appropriate expert who can complete the report within the time required. 

5. I have indicated during the course of the proceedings this morning that in my opinion, it is appropriate that the expert should be a single expert who would then become an expert of the Court, but that the payment for the expert, which I believe to be in the order of approximately $8,000, should be the responsibility of the husband, who is the one seeking that report.  The husband indicated he was able to have access to sufficient funds to meet that obligation if the need arises and wants, in effect, the matter to be further postponed, or at least that evidence or the opportunity for such evidence to be postponed until a date some time after this one. 

6. It seems to me that it is inappropriate that the matter should proceed along the path that the husband has suggested.  The evidence of the family report covers most of the matters that are relevant to the determination.  That is by no means the final word on the issue before the Court.  I can understand the husband’s disappointment or dissatisfaction with the terms of the family report.  However, that is not in itself a reason for obtaining another report.  I have to balance the need for finality in litigation that has already existed for a long time with the question of whether or not a party should be entitled to call any particular piece of evidence. 

7. Accordingly, in my opinion, the order that I made on the last occasion was sufficient in the circumstances to provide the opportunity to the father to obtain the additional evidence that he wanted.  For reasons possibly beyond his control, (or possibly not), he has not done so.  In those circumstances, I decline to extend the time for the filing of any further report or the obtaining of any further expert evidence. 

Matters concerning property

1. In relation to the other matter before me today, I have an application filed on behalf of the mother on 23 July 2010 seeking a sequence of orders effectively for the purposes of enforcing the division of property order, made by me on 1 April 2010. 

2. It is asserted in relation to the orders that were made on 1 April 2010 and the judgment that provided the reasons for the making of those orders, that there was an error on my part. 

3. The solicitor for the mother drew attention of the Court and the husband to what is said to be the error in my judgment. At that point, I indicated to the parties that one way of overcoming this difficulty, and the cheapest way of dealing with it, if both parties agreed that it was an error, was for those orders to be set aside pursuant to s 79A of the Family Law Act1975 (Cth) and that the matter then be finalised accordingly. In the alternative, either or both of the parties might lodge an appeal. If one party lodges an appeal, the other may concede the appeal if, indeed, there is agreement about the error.

4. No appeal was lodged within the time stipulated under the Family Law Rules 2004. No application has yet been made in relation to the extension of time for the filing of an appeal. No application has been made by the husband at any time since the orders were made for the stay of those orders for whatever reason. I might add that for him to apply for a stay without there also being an application for leave to extend time for the appeal would be unlikely to meet with a favourable response from the Court.

5. In those circumstances, the matter comes before me on the basis that the default provisions under the Rules which are to apply suggests that the property in O be sold and the orders themselves set out a program in relation to the sale and the steps to be taken.  Some of those steps required cooperation between the parties, and it appears that that cooperation has not been a matter easily able to be accomplished. 

6. In such circumstances, some orders that have been sought have come before me to amplify and to clarify some of the steps to be undertaken.  These include the appointment of the wife as trustee for the purposes of the sale of the house at O, and various other procedural orders that relate to the delivery of keys, the provision of a tenancy agreement, otherwise resolving any difficulties that may occur in relation to the normal steps that will be taken by parties in these proceedings to reach agreement about such things as offers for the purchase which are less than the listing price and so forth. 

7. The husband has had an opportunity to consider the form of the additional orders that are sought on behalf of the mother, and while I acknowledge that the time involved is short, the essence of the procedures is relatively straightforward. 

8. It seems to me consistent with the part of the judgment of McHugh J in Gallo v Dawson (1993) 93 ALR 479, (specifically page 481), and also from the decision of the High Court of Australia and, in particular, the judgment of Kirby J in Allesch v Maunz (2000) FLC 93‑033, that “Courts are not obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear or to be represented or, in this case, to pursue the rights that he or she [in this case he] might have in respect of the proceedings.” (see Kirby J’s judgment, p 87,518).

9. Accordingly, in this matter, as the husband has not made any of the applications he might have made in relation to the property orders, and as he has not made any application for a stay, and as there is no evidence from him before me about the matters he asserts in relation to his health or other matters, there is no basis upon which I should postpone the enforcement of the orders.  This does not mean, however, of course, that if, in fact, at some point the husband is successful in obtaining a stay of the original orders or, in fact, lodges an appeal or reaches agreement about the setting aside of the orders and substitution of further orders which he and the wife might well agree as being appropriate, then the enforcement proceedings may be stopped, and other things may occur. 

10. In relation to Exhibit ‘J1’, I indicate that contrary to earlier expressions of opinion from the husband, he has received information about the appeal process and was provided with copies of the relevant forms that were necessary. 

11. I have been handed during the course of delivery of my judgment an echocardiographic report from Dr C in relation to the husband (Exhibit ‘H1’).  That report in terms of comments reads as follows:

    The Mitral Regurgitation has become significant since last Echo assessment 4 years ago.  There are no signs of left heart chambers overloading and patient is asymptomatic.  Should symptoms develop next echo plan for 2 years time can be brought forward.  Valve repair rather than prosthetic valve replacement is preferred option when surgical correction is deemed necessary.  There is minimal atherosclerosis and some increased LV mass. 

    Management of atherosclerosis should include annual eGFR and microalbuminuria follow‑ups.   

12. I indicated to the husband at an early stage I was not a doctor.  However, without any medical knowledge even I can assess that the expert report relied upon by the husband suggests that it is not necessary for there to be any further echocardiograph for two years from 31 May 2010 and that there should be annual eGFR and microalbuminuria follow‑ups.  This does not indicate that there is any present medical condition of the husband which prevents him from attending to the matters before the Court.  I am grateful for him providing that information which in large measure offsets his complaint that he has not been in a position to properly prosecute the matter because of his ill‑health. 

Costs

1. In relation to the question of the costs of today, I am obliged to take account of s 117 in the Family Law Act 1975 (Cth) which prescribes the circumstances in which orders for costs should be made. The primary provision under s 117 is that each party should pay his or her own costs. However, s 117(2) provides that if the Court considers it to be appropriate to do so, taking account of the matters that are particularly set out in s 117, the Court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.

2. The matters I am to take into account are: the financial circumstances of each of the parties;[1] whether either of the parties is in receipt of assistance by way of Legal Aid;[2] the conduct of parties in relation to the proceedings;[3] whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;[4] whether any party to the proceedings has been wholly unsuccessful;[5] whether either party has made an offer in writing to the other party to settle the proceedings, and the terms of any such offer;[6] and such other matters as the Court considers relevant.[7] 

   [1] Family Law Act 1975 (Cth) s 117(2A)(a).

   [2] Family Law Act 1975 (Cth) s 117(2A)(b).

   [3] Family Law Act 1975 (Cth) s 117(2A)(c).

   [4] Family Law Act 1975 (Cth) s 117(2A)(d).

   [5] Family Law Act 1975 (Cth) s 117(2A)(e).

   [6]Family Law Act 1975 (Cth) s 117(2A)(f).

   [7] Family Law Act 1975 (Cth) s 117(2A)(g).

3. In this matter, the financial circumstances of the parties are not known precisely to me at this point.  It would be fair to say probably neither is in a strong financial position.  I am aware from the husband’s statements to me today that he has access to some money through his credit cards, so to that extent, I suppose any order I might make against him in relation to the proceedings this day is likely to be capable of being met. 

4. It appears that the wife is in receipt of Legal Aid, which is a matter of some concern to the husband, but nevertheless, it is an irrelevant consideration for the purposes of this application. 

5. The proceedings have in part been necessitated by the husband’s failure in both meeting the orders previously made and a failure to prosecute what he regarded as an alternative to those orders. In the proceedings that were before me today were necessitated by his failure to comply with a previous order of the Court.

6. Substantially, he has been unsuccessful, and in practical terms, wholly unsuccessful in the proceedings this day.  In my opinion, there should be an order for costs in relation to today.  I set those costs in the sum of $300.   

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 6 August 2010.

Senior Legal Associate:

Date: 6 September 2010