Connor and Connor and Anor

[2018] FamCA 348

FAMILY COURT OF AUSTRALIA

CONNOR & CONNOR AND ANOR [2018] FamCA 348

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedition – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Mr Connor

RESPONDENT: Ms Connor

INTERVENOR: Ms B Connor

FILE NUMBER: MLC 3395 of 2015

DATE DELIVERED: 21 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

SOLICITOR FOR THE RESPONDENT: Lennon Lawyers

SOLICITOR FOR THE INTERVENOR: Lander & Rogers

Orders

1. That paragraph 7 of the husband’s Application in a Case filed 28 February 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Connor & Connor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3395 of 2015

Mr Connor

Applicant

And

Ms Connor

Respondent

And

Ms B Connor
Intervenor

REASONS FOR JUDGMENT

1. The husband who is the applicant in the substantive proceedings makes an application seeking the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).

2. On 28 February 2018 the husband filed an Application in a Case seeking amongst other orders at paragraph 7:

   In the alternative, all necessary times and dates be abridged to enable the trial of this matter to be expedited.

3. On 18 April 2018 Cronin J made the following orders:

   (1)Paragraph 7 of the husband’s application in a case filed 28 February 2018 is referred to the Honourable Justice Johns as Case Management Judge for the purposes of determining whether the property proceedings between the husband and wife should be expedited and that unless her Honour decides otherwise, that issue be determined in chambers.

   (2)Without restricting what matters should be taken into account, for the purposes of paragraph (1), the Case Management Judge may benefit from reading paragraphs [27] to [44] of the husband’s affidavit filed 28 February 2018 and paragraphs [16] to [24] of the wife’s affidavit filed 10 April 2018

4. These are my reasons for judgment with respect to the husband’s application for expedition.

Background

1. The husband and wife are both aged 56. They commenced cohabitation in July 1986 and married in 1987. They separated on 14 February 2013.

2. The husband and wife have four adult children. The intervenor, Ms B Connor is one of their adult children. Ms B is aged 26.

3. The father filed his Initiating Application on 23 March 2017 seeking property orders.

4. The intervenor sought leave to intervene by way of Application in a Case filed 3 May 2017.

5. The father has been charged with a number of criminal offences pertaining to allegations made by Ms B and his other daughter Ms E in relation to sexual assault. The husband was arrested in New Zealand in February 2017 and bailed for extradition to Australia in March 2017. The husband deposes that he faces 18 charges against three women. The husband is presently being held in immigration detention and has been in detention since March 2017.

6. The husband deposed in his affidavit filed 28 February 2018 that his criminal trial has been listed for three weeks commencing 27 August 2018 in the County Court of Victoria.

7. The parties have had a number of interim hearings in this Court.

8. I made orders by consent on 2 May 2017 which provided that the husband receive $30,000 by way of partial property settlement.

9. Further orders were made by Cronin J on 11 December 2017 which provided:

   1. That each of the husband and the wife give instructions to the solicitors holding the net proceeds of the sale of the property owned by them to distribute the sum of approximately $260,000 as follows:

   a. To the husband $130,000; and

   b. To the wife $130,000.

10. The husband filed an Application in a Case on 28 February 2018 seeking a number of orders, including a further order for partial property settlement to him on the basis that there be an extension of the mortgage secured over a property at Suburb D by $450,000 and that such sum be paid to him or in the alternative, that that property be sold and he be paid the sum of $500,000 from the proceeds of that sale. As discussed, the husband at paragraph 7 of his Application in a Case sought the following relief in the event that his application for partial property orders failed:-

    In the alternative, all necessary times and dates be abridged to enable the trial of this matter to be expedited.

11. The Application in a Case, the Wife’s Response filed 10 April 2018 and the Intervenor’s response filed 10 April 2018 were heard on 11 April 2018 by Cronin J and his Honour reserved his judgment.

12. On 18 April 2018 Cronin J made the following orders.

    (3) That to the extent necessary, the wife co-operate with the husband:

    (a)To enable him to charge his interest in the real property at [F Street Suburb D] to the extent of $175,000 to his respective lawyers for the purpose of enabling him to obtain legal representation for the proceedings pending before the County Court of Victoria and this Court; and

    (b)In the alternative, for the husband in his own name, to borrow up to $175,000 secured against his interest in the said real property,

    and in either case, the wife not be responsible for, nor have any obligation to, the persons or organisations accepting the husband’s charge or borrowings.

    (4) That otherwise, the application in a case filed by the husband on 28 February 2018 and the response of the wife thereto filed 10 April 2018 are dismissed.

    …

13. Therefore pursuant to Court orders the husband has received $160,000 in partial property settlement pursuant to earlier orders and has access to either a charge in the sum of $175,000 or borrowings of up to $175,000 against the title to the Suburb D property pursuant to the orders of 18 April 2018.  The wife has received $130,000 by way of partial property settlement.

Legal Principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge.

2. In determining an application to expedite the first day, r 12.10A of the Rules provides that:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule  (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

   (b)  whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

   (c)  whether the applicant is suffering financial hardship that:

   (i)  is not caused by the applicant; and

   (ii)  cannot be rectified by an interim order;

   (d)  whether the continuation of interim orders is causing the applicant or a child hardship;

   (e)  whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

   (f)  whether the case involves allegations of child sexual, or other, abuse; and

   (g)  whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Discussion

1. I am satisfied that the husband has acted reasonably and without delay in the conduct of the case and in filing his application. Proceedings were commenced by him in March 2017 and there have been a number of interim applications in this matter filed by all parties. The husband made his application for priority in February 2018.

2. In relation to whether the respondent and intervenor would suffer any prejudice if the matter was expedited, the husband deposed in paragraph 13 of his affidavit filed 28 February 2018 that there is no prejudice to the wife if the trial is expedited. The wife does not respond to that contention in her affidavit filed 10 April 2018. The intervenor also does not address any prejudice that may be suffered by her in her affidavit filed 10 April 2018.  Accordingly, in the absence of evidence to the contrary I am satisfied that neither the wife nor the intervenor would suffer prejudice if the matter was expedited.  

3. Rule 12.10A(2)(d) of the Rules also requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).

4. The husband in his affidavit filed 28 February 2018 deposed that the costs to prepare and run his defence for the criminal proceedings are currently estimated between $170,000 and $242,000. He deposed that he needed funds to secure and pay for private legal representation in order to defend criminal charges against him. The husband deposed at paragraph 12:

   In the event that I do not succeed in obtaining a part property settlement by an extension to the mortgage or an interim sale of the home, I seek an expedited trial.

5. The husband deposed that “our property case is not complicated” and that the home should be valued by a single expert. He deposed that his lawyers have informed him that the trial should not exceed two days.

6. The husband deposed that “there is significant prejudice to me in the event I am unsuccessful in achieving a part property settlement on an interim basis, if an expedited trial is not granted”. The husband deposed that if he is unable to access sufficient funds to pay the legal costs associated with his criminal trial, the County Court trial will be adjourned and his detention extended.

7. Under r 12.10A(4)(2)(a) of the Rules the Court may consider whether the physical or mental health of a party would affect the availability or competence of the party. The husband deposes at paragraph 29 that as a consequence of his detention his physical and mental health has deteriorated. The husband deposed to having the following health conditions:

   ·    Hypertension;

   ·    Depression;

   ·    Memory issues;

   ·    Atherosclerosis;

   ·    Angina;

   ·    Bradycardia;

   ·    Arthritis;

   ·    Suspected Lyme like disease; and

   ·    Coeliac Disease.

8. The husband sought orders for the appointment of a Case Guardian, Ms G, due to what he deposed was his inability to conduct the proceedings due to his health issues. He deposed:

   I have experienced great difficulty managing my legal matters, not only because I experience fatigue, cognitive problems and other symptoms related to my medical conditions, but also as a result of the practical difficulties arising from being in detention. I am concerned that I am not currently in a position to adequate conduct this litigation.

9. The issue of the Case Guardian was dealt with by Cronin J in his Reasons for Judgment on 18 April 2018. Cronin J at paragraph 47 stated:

   All of the evidence indicates that the husband is suffering inconvenience but I could not find that with the assistance of his lawyers and [Ms G], he is not capable of adequately conducting his case in this court.

10. There is no evidence from the husband’s doctors to suggest that due to the husband’s health issues he will be unable to participate in the trial or that his competence would be affected if the matter was not afforded priority.

11. Rule 12.10A(4)(c) of the Rules states the Court may consider whether the husband is suffering financial hardship that is not caused by him and cannot be rectified by an interim order. As discussed above the husband has deposed to his financial needs in relation to the criminal proceedings. He also deposes that he cannot earn an income at present and he requires funds for living expenses.

Conclusion

1. The husband sought expedition of these proceedings in the event that he did not obtain orders for partial property settlement pursuant to his application in a case filed 28 February 2018.

2. Orders were made by Cronin J on 18 April 2018 the effect of which is that the husband has the benefit of orders that he receive up to $175,000 by way of partial property settlement (whether by way of charge or borrowings).  The amount provided to the husband pursuant to those orders will enable him to meet the costs of the criminal proceedings.  That order for partial property settlement is in addition to the sum of $160,000 he has previously received by way of partial property orders.

3. The husband submitted that an expedited hearing was necessary in the event that he did not receive a partial property order to enable him to meet the costs of his criminal defence.  In circumstances where the orders of 18 April 2018 provide funds to the husband to meet those legal costs I am not satisfied that the hearing of the parties’ competing applications for final property orders should be expedited.

4. Further, as discussed, there is no evidence to suggest that due to the husband’s medical conditions he will be unable to participate in the trial.

5. The Rules make it clear that the Court needs to balance whether the benefit that will be afforded to these parties by granting priority outweighs the detriment that will be caused to other cases similarly awaiting hearing. Some of the cases awaiting hearing involve serious allegations of child abuse and where it is alleged that children are at risk of harm. Against this backdrop, I cannot justify affording this case priority.

6. Having regard to the above matters, I will dismiss the husband’s application for an expedited hearing.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 May 2018

Associate: 

Date:  21 May 2018