Defries & Kemeny (No 3)
[2023] FedCFamC1F 818
•28 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Defries & Kemeny (No 3) [2023] FedCFamC1F 818
File number(s): BRC 10850 of 2013 Judgment of: HOGAN J Date of judgment: 28 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where the respondent seeks an adjournment of the proceedings due to chronic health issues and alleged non-disclosure – where the applicant seeks that the proceedings be determined on an undefended basis – where the applicant seeks to adduce evidence from non-adversarial witnesses – where the matter is to proceed on an undefended basis Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Sali v SPC Ltd and Another (1993) 116 ALR 625; [1993] HCA 47
Tate v Tate (2000) FLC 93-047; [2000] FamCA 1040
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Weir v Weir (1993) FLC 92-338; [1992] FamCA 69
Division: First Instance Number of paragraphs: 79 Date of hearing: 20 September 2023 Place: Brisbane Counsel for the Applicant: Mr Coulsen Solicitor for the Applicant: Evans Brandon Family Lawyers Solicitor for the Respondent: Litigant in person ORDERS
BRC 10850 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DEFRIES
Applicant
AND: MR KEMENY
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
26 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Respondent’s application for an adjournment of the trial, listed to commence on 3 October 2023, is dismissed.
2.Pursuant to r 1.33(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the proceedings will be determined as if it they are undefended.
3.The Applicant’s application for permission to adduce evidence from Mr N and Mr O at the trial is refused.
4.The Applicant has permission to adduce evidence from Dr G and Mr P at the trial.
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 Defries & Kemeny has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J
The property settlement proceeding between the parties is currently listed for trial before me for five days commencing on 3 October 2023.
CURRENT APPLICATIONS
The following interim applications currently require resolution:
(a)the Respondent’s application that the trial is adjourned;[1] and
(b)the Applicant’s application that the trial proceed on an undefended basis;[2] and
(c)the Applicant’s application for leave to adduce evidence from the following expert witnesses:[3]
(i)Mr N from Q Chartered Accountants; and
(ii)Mr O from R Company; and
(iii)Mr P from Q Chartered Accountants; and
(iv)Dr G, a psychiatrist.
[1] Application in a Proceeding filed 8 September 2023.
[2] Submissions of the Applicant made at the hearing on 8 September 2023 before me.
[3] Application in a Proceeding filed 5 September 2023.
Very brief overview of the circumstances and the proceedings
The parties commenced cohabitation in about 1997 and married in 1998. Their first child was born in 2001 and their second child in 2006. The parties separated in about September 2013.
Proceedings under the Family Law Act 1975 (Cth) (the Act) between the parties commenced on 10 December 2013 when the Applicant sought parenting orders.[4] In the Response to Initiating Application filed on 5 February 2014, the Respondent sought both parenting orders and orders pursuant to s 79 of the Act: the order sought in relation to the property settlement aspect of the proceedings was then framed as “that the net matrimonial assets be calculated and divided between the parties in the shares of sixty five percent (65%) to the Husband and thirty five percent (35%) to the Wife”.[5] On 8 September 2023, the Respondent filed a Further Amended Response to Initiating Application in terms which are more particularised than this.
[4] Application for Final Orders filed 10 December 2013.
[5] Response to Initiating Application filed on 5 February 2014, paragraph 13.
The parenting aspect of the proceedings between the parties has been finalised.[6]
[6] Order made 11 November 2020.
The significant delay in finalising the balance of the proceedings between the parties (that is, the property settlement proceedings) can be explained – at least in part – by the following matters:
(a)the resolution of criminal proceedings against the Respondent arising out of the Applicant’s allegation that, in late 2013, he broke into her home and physically attacked her – a criminal trial before the Town S Court took place in early 2016 and culminated in the return by the jury of a verdict of “not guilty”;[7] and
(b)the resolution of the civil proceedings initiated by the Applicant against the Respondent in the Supreme Court of Queensland (the Supreme Court proceedings) in which she sought damages:
(i)in late 2022, Cooper J determined that the Respondent had committed the tort of battery against the Applicant, that he was liable to her for the same and assessed the damages, to which she was entitled as a result of the battery, in the amount of $967,113.40, for which judgment against the Respondent was given;[8] and
(ii)a short time later, Cooper J made an order that the Respondent pay the Applicant’s costs, assessed on the basis of 75% of the indemnity rate;[9] and
(iii)in mid-2023, the Queensland Court of Appeal dismissed the Respondent’s appeal against the orders made by Cooper J.[10]
[7] Affidavit of the Applicant filed 28 August 2023, paragraph 117.
[8] Affidavit of the Applicant filed 28 August 2023, paragraph 9.
[9] Affidavit of the Applicant filed 28 August 2023, paragraph 10.
[10] Affidavit of the Applicant filed 28 August 2023, paragraph 11.
Whilst the proceedings in the Queensland Supreme Court were ongoing, a number of orders were made in this court setting the property settlement proceedings down for trial.
Previous Orders listing the proceedings for trial and previous Directions made in support of such listings
On 4 February 2022, I listed the proceedings for trial for five days, commencing on 5 September 2022. I also listed the pre-trial case management hearing for 9 August 2022.[11] On this occasion, the Respondent was represented by Mr T of U Lawyers, which firm had previously filed a Notice of Address for Service on his behalf on 4 May 2021.
[11] Order made 4 February 2022, Clauses 2, 5.
Mr T also appeared on behalf of the Respondent on 10 February 2022 when a Judicial Registrar made various trial directions in terms which included that:
(a)by no later than 4.00 pm on 22 April 2022: the Applicant file and serve an Amended Initiating Application;[12] and
[12] Order made 10 February 2022, Clause 2.
(b)by no later than 4.00 pm 20 May 2022: the Respondent file and serve an Amended Response to the Amended Initiating Application;[13] and
[13] Order made 10 February 2022, Clause 3.
(c)by no later than 4.00 pm on 8 July 2022: all parties file and serve the following:
(i)one affidavit setting out his/her evidence in chief; and
(ii)any affidavit setting out the evidence of any professional or lay witness that the party proposes to call at the trial; and
(iii)a Financial Statement (except the then Respondents 2 – 7); and
(iv)a Superannuation Information Form attached to an affidavit (if applicable); and
(v)a Balance Sheet which sets out the assets, liabilities and financial resources of the parties.[14]
(d)by no later than 4.00 pm on 22 July 2022: the parties file and serve any affidavit strictly in reply;[15] and
(e)the applicant file and serve, by no later than 31 March 2022: the affidavit of the single expert valuer, Ms V of W Financial Services annexing her report;[16] and
(f)any Application in a Proceeding seeking to rely upon the evidence of an expert not the single expert must be filed and served by no later than 6 May 2022;[17] and
(g)in the event a party fails to comply with these trial directions, the matter may proceed on an undefended basis on 5 September 2022 and the non-defaulting party shall be at liberty to seek orders by default on a final basis on that day.[18]
[14] Order made 10 February 2022, Clause 5.
[15] Order made 10 February 2022, Clause 6.
[16] Order made 10 February 2022, Clause 14.
[17]Order made 10 February 2022, Clause 15.
[18] Order made 10 February 2022, Clause 22.
Neither the Applicant nor the Respondent complied with any of the above before the matter came before me on 9 August 2022.
On 9 August 2022, I made an order by consent in terms which vacated the trial listed to commence on 5 September 2022. I then listed the matter for trial for five days commencing on 6 March 2023. On this occasion, the Respondent was represented by Mr T of U Lawyers.
On 23 August 2022, I made various trial directions in Chambers by consent in terms which included that:
(a)by no later than within seven (7) days of Ms V of W Financial Services releasing her updating Single Expert Report, the Applicant file and serve an Amended Initiating Application;[19] and
[19]Order made 23 August 2022, Clause 2.
(b)by no later than within seven (7) days of service of the Amended Initiating Application, the Respondent file and serve an Amended Response to the Amended Initiating Application;[20] and
[20]Order made 23 August 2022, Clause 3.
(c)by no later than 4.00 pm on 16 December 2022: the spouse parties file and serve the following:
(i)one affidavit setting out his/her evidence in chief; and
(ii)any affidavit setting out the evidence of any professional or lay witness that the party proposes to call at the trial; and
(iii)a Financial Statement; and
(iv)Superannuation Information Form attached to an affidavit (if applicable); and
(v)a Balance Sheet which sets out the assets, liabilities and financial resources of the parties.[21]
(d)by no later than 4.00 pm on 27 January 2023: the spouse parties (and, if they have filed an Amended Response to Initiating Application pursuant to paragraph 4 of these Orders, then Respondents 2 – 7) file and serve any affidavit strictly in reply;[22]
(e)in the event a party fails to comply with these trial directions, the matter may proceed on an undefended basis on 6 March 2023 and the non-defaulting party shall be at liberty to seek orders by default on a final basis on that day;[23] and
(f)the pre-trial case management hearing is listed for 2 February 2023.[24]
[21]Order made 23 August 2022, Clause 5.
[22]Order made 23 August 2022, Clause 6.
[23] Order made 23 August 2022, Clause 23.
[24] Order made 23 August 2022, Clause 26.
Whilst the Applicant did not comply with the requirement to file a Further Amended Initiating Application by the time nominated, or her affidavit of evidence in chief and Financial Statement, and the affidavits of any witness she proposed to call at the trial by no later than 4.00 pm on 16 December 2022, she did file:
(a)on 23 January 2023: affidavits by the witnesses Ms Z and Mr BB; Ms E; Ms Bingham and Mr CC; Mr P; Mr DD; Mr EE; Y and Mr FF; and
(b)on 24 January 2023: her Financial Statement and affidavits by the witnesses Dr G, Ms GG and Mr HH; Ms JJ; and
(c)on 25 January 2023: her affidavit of evidence in chief.
That is, by no less than about six weeks before the trial was to commence in March 2023, the Applicant had filed all the evidence sought to be relied on in her case, other than any affidavits in reply.
The Applicant could not comply with the direction for the filing of affidavits strictly in reply because the Respondent did not file an affidavit of evidence in chief, a Financial Statement or an affidavit from any witness whom he proposed to call at the trial.
On 2 February 2023, I made an order by consent in terms which vacated the trial listed to commence on 6 March 2023. I then listed the matter for trial for five days commencing on 3 October 2023, and the pre-trial case management hearing for 11 September 2023.[25]
[25] Order made 2 February 2023, Clauses 2, 4.
On 15 February 2023, I made various trial directions by consent in Chambers (the February 2023 Directions) in terms which included that:
(a)by no later than 4.00 pm on 18 August 2023: the Applicant file and serve the following:
(i)one affidavit setting out any further evidence in chief, if any; and
(ii)any further affidavit setting out the evidence of any professional or lay witness that the party proposes to call at the trial, if any; and
(iii)an updated Financial Statement, if required; and
(iv)Superannuation Information Form attached to an affidavit (if applicable); and
(v)a Balance Sheet which sets out the assets, liabilities and financial resources of the parties.[26]
[26] Order made 15 February 2023, Clause 2.
(b)by no later than 4.00 pm on 18 August 2023: the Respondent file and serve the following:
(i)one affidavit setting out his evidence in chief; and
(ii)any affidavit setting out the evidence of any professional or lay witness that the party proposes to call at the trial; and
(iii)a Financial Statement; and
(iv)Superannuation Information Form attached to an affidavit (if applicable); and
(v)a Balance Sheet which sets out the assets, liabilities and financial resources of the parties.[27]
(c)on or by 4.00 pm on 8 September 2023 or within thirty (35) days of service of the Applicant’s Amended Initiating Application (whichever is last in time): the spouse parties (and subject to the court’s determination of the Application for disjoinder, as contained within the Response to Application in a Case filed 18 June 2021, Respondents 2 – 7) file and serve any affidavit strictly in reply;[28] and
(d)any Application in a Proceeding seeking to rely upon the evidence of an expert not the single expert must be filed and served by no later than 1 September 2023;[29] and
(e)in the event a party fails to comply with these trial directions, the matter may proceed on an undefended basis on 3 October 2023 and the non-defaulting party shall be at liberty to seek orders by default on a final basis on that day.[30]
[27] Order made 15 February 2023, Clause 3.
[28] Order made 15 February 2023, Clause 5.
[29] Order made 15 February 2023, Clause 14.
[30] Order made 15 February 2023, Clause 22.
The Applicant filed the affidavit of Ms V, a single expert witness, on 20 June 2023. She filed a Further Amended Application for Final Orders on 24 July 2023. Whilst she did not comply with the requirement to file an affidavit setting out any further evidence in chief, an updated Financial Statement and any further affidavit of any witness she proposed to call at the trial by no later than 4.00 pm on 18 August 2023, she did file:
(a)on 25 August 2023: an affidavit of her further evidence in chief, an updated Financial Statement, a Balance Sheet and affidavits by the witnesses Ms Z; Mr N; Mr KK; and
(b)on 31 August 2023: an affidavit by Mr O, Registered Valuer and Senior Director of R Company, upon whom she seeks to rely as an adversarial witness.
Whilst not filed in accordance with the February 2023 Directions, the Respondent filed a Further Amended Response to Initiating Application (in which the orders he seeks in relation to the property settlement proceedings are particularised) and a Balance Sheet on 8 September 2023.
What the Respondent has not done – despite the various opportunities afforded to him by the various directions made by consent (as recounted above) – is to file an affidavit of evidence in chief in which he addresses the various matters relevant to the determination of the orders he proposes as being the orders which are just and equitable in the circumstances of the case. Similarly, he has not filed a Financial Statement as required by any of the consent directions made to facilitate the final hearing of the proceedings.
The Applicant could not comply with the February 2023 Directions insofar as they provided for the filing of an affidavit strictly in reply because the Respondent did not comply with the requirement to file an affidavit of evidence in chief.
Despite the Applicant filing affidavits of evidence in chief largely in compliance with the Directions made on 23 August 2022 and 15 February 2023, the Respondent has not filed any affidavit in reply to the same.
When the matter was before me on 11 September 2023, Mr T raised concerns about the Respondent’s capacity to provide instructions. Whilst there were a number of other issues associated with the hearing of this matter listed for determination that day, they could not proceed further until the issue of the Respondent’s capacity was resolved.
After being advised that the Respondent had a medical appointment on 19 September 2023, I adjourned the matter to 20 September 2023. I also ordered that:
(a)any Application in a Proceeding filed on behalf the Respondent for the appointment of a litigation guardian be filed and served by 3.30 pm on 19 September 2023, together with any affidavit in support of the same;[31] and
(b)any Application in a Proceeding filed on behalf the Respondent for the appointment of a litigation guardian be listed to the Case Management Hearing on 20 September 2023;[32] and
(c)all outstanding interlocutory applications be listed to the Case Management Hearing on 20 September 2023;[33] and
(d)the legal representatives for the Applicant and for the Respondent appear in person at the Case Management Hearing on 20 September 2023;[34] and
(e)the Applicant and the Respondent have leave to attend by electronic means at the Case Management Hearing on 20 September 2023.[35]
[31] Order made 11 September 2023, Clause 1.
[32] Order made 11 September 2023, Clause 3.
[33] Order made 11 September 2023, Clause 4.
[34] Order made 11 September 2023, Clause 5.
[35] Order made 11 September 2023, Clause 6.
The issue of a litigation guardian for the Respondent
No application for the appointment of a litigation guardian for the Respondent has ever been filed.
Having regard to the medical evidence relied on by the Respondent in support of his application for an adjournment of the trial and the submissions made personally by the Respondent in support of the same, I am not persuaded that the Respondent does not understand the nature and possible consequences of the proceeding or that he is not capable of adequately conducting (or giving adequate instruction for the conduct of) the proceedings. Consequently, I am not persuaded on the evidence before me that the Respondent is a person who needs a litigation guardian in relation to these proceedings.[36]
[36] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 3.12(1).
The Respondent’s application to adjourn the trial
On 19 September 2023, the Respondent filed a Notice of Address for Service by which he advised that he was no longer legally represented. Until that date, he had been represented by U Lawyers since at least 4 May 2021.
The evidence given by the Respondent’s former solicitors relevantly included that:
(a)a significant portion of the Respondent’s affidavit material had been completed before April 2023;[37] and
(b)after the trial which had been listed to occur in March 2023 was adjourned until 3 October 2023, the Respondent’s affidavit needed to be restructured due to new disclosure and his concerns about the Applicant’s alleged non-disclosure;[38] and
(c)on 25 August 2023, the Respondent’s solicitors wrote to the Applicant’s solicitors to ask that they agree that the Respondent have until 30 August 2023 to file his affidavit of evidence in chief; [39] and
(d)on 31 August 2023, the Respondent’s solicitors wrote to the Applicant’s solicitors to advise that they were finalising the Respondent’s material – they also advised that they intended to file it shortly.[40]
[37] Affidavit of Mr LL filed 8 September 2023, paragraph 5.
[38] Affidavit of Mr LL filed 8 September 2023, paragraph 5.
[39] Affidavit of Mr XX filed 19 September 2023, p 11.
[40] Affidavit of Mr XX filed 19 September 2023, p 12.
Despite the above, one of the matters relied on by the Respondent as persuading of the exercise of discretion in favour of an order adjourning the trial was his health conditions and issues; another basis was his allegation that the Applicant has failed to comply with the ongoing obligations of disclosure cast on all parties to litigation in this court.
The following appears to me to be relevant to the consideration of the application for an adjournment of the trial on the basis of the Respondent’s health. It is also relevant to the consideration of the Applicant’s application that the trial proceed by way of undefended hearing.
The evidence seems to me to establish that the Respondent has longstanding, chronic health conditions which have impacted his life and his functioning since approximately 2013.[41]
[41] Affidavit of the Respondent filed 8 August 2023, paragraph 3.
The following can be drawn from the various medical reports exhibited to the affidavit of his former solicitor.
In late 2017, Dr MM, a specialist at NN Health Service wrote to Dr OO of PP Health Service detailing the Respondent’s health issues. The content of the correspondence can be summarised as including that:
(a)the Respondent had deteriorated since he first consulted with Dr MM in 2014;[42] and
(b)the Respondent’s pain remained severe and multifactorial: it resulted in him presenting with high-grade disability and using an aid for mobilising;[43] and
(c)a scan performed in November 2017 clearly explained why the Respondent had severe pain;[44] and
(d)the Respondent needed to lose weight urgently before the medical practitioners could reassess him and institute help.[45]
[42] Affidavit of Mr T filed 8 September 2023, p 21.
[43] Affidavit of Mr T filed 8 September 2023, p 21.
[44] Affidavit of Mr T filed 8 September 2023, p 21.
[45] Affidavit of Mr T filed 8 September 2023, p 21.
In 2018, Dr QQ, a Consultant Surgeon at RR Health Service wrote to the Respondent to outline the probable ongoing effects of his chronic illness. The content of this correspondence, which was provided to Dr SS in August 2018, can be summarised as including that:
(a)the Respondent suffers multiple impairments as a result of his medical conditions and their associated treatments – these impairments are considered permanent and impact on his health and activities of daily living, with increased costs sustained as a result;[46] and
(b)surgery on the Respondent had failed and his physical incapacity was permanent;[47] and
(c)the Respondent has total and permanent disabilities which will not improve or stabilise but will progressively get worse and transform substantially as he ages, with or without medical treatment: it was anticipated that future denigration would be aggressive;[48] and
(d)the Respondent was at extreme risk of permanent neurological deficits affecting his limbs – he had lost the use of one side of his body (including arm and leg) on multiple occasions; his injuries were inoperable and his musculoskeletal integrity and related structures were fragile, degenerative and exposed to fractures and collapse;[49] and
(e)the Respondent had multiple medical and mental health conditions;[50] and
(f)the aspects of the Respondent’s health which are ongoing and will progressively worsen include: chronic pain and permanent impairment; degenerative activity; loss of independence and daily life activities; loss of mobility and impairment of range; mental cognition and highest integrative function affected by medication; muscle weakness; neck issues; pain and poor health; permanent impairment to respiration, throat and related structures;[51] and
(g)the Respondent was then on a large variety of medications that impacted his mental status, cognition and highest integrative function;[52] and
(h)the Respondent had ongoing medical costs in excess of $184,000 annually;[53] and
(i)a post surgery syndrome had rendered the Respondent incapable of resuming his previous occupation or engaging in any other occupation for which he is qualified.[54]
[46] Affidavit of Mr T filed 8 September 2023, p 10.
[47] Affidavit of Mr T filed 8 September 2023, p 10.
[48] Affidavit of Mr T filed 8 September 2023, p 11.
[49] Affidavit of Mr T filed 8 September 2023, p 11.
[50] Affidavit of Mr T filed 8 September 2023, p 11.
[51] Affidavit of Mr T filed 8 September 2023, p 12-13.
[52] Affidavit of Mr T filed 8 September 2023, p 13-14.
[53] Affidavit of Mr T filed 8 September 2023, p 15.
[54] Affidavit of Mr T filed 8 September 2023, p 15.
In January 2020, Dr UU wrote to Dr OO of TT Health Clinic in terms which may be summarised as including that:
(a)although the Respondent’s pain had increased in one area of his body, his pain actually extended from that area and was there all the time: he complained of hand numbness, whether asleep or awake;[55] and
(b)the Respondent’s pain was present most of the time, but increased with physical activity or when he stood for prolonged periods of time;[56] and
(c)the Respondent had sought many opinions over the years including the opinions of Dr MM and Dr VV;[57] and
(d)having reviewed scans of the affected area, there was no evidence of abnormality or compression;[58] and
(e)the clinical features were such that it indicated that the Respondent’s surgery had failed and surgical intervention was unlikely to benefit him: he was already in pain (which was more than likely from failed surgery) and treatment would more than likely make the symptoms worse and would significantly impact his life.[59]
[55] Affidavit of Mr T filed 8 September 2023, p 22.
[56] Affidavit of Mr T filed 8 September 2023, p 22.
[57] Affidavit of Mr T filed 8 September 2023, p 22.
[58] Affidavit of Mr T filed 8 September 2023, p 22.
[59] Affidavit of Mr T filed 8 September 2023, p 22.
The evidence suggests that, more recently, Dr SS of WW Health Practice instigated further investigations into the Respondent’s health – for example, he has recently had scans.[60]
[60] Affidavit of Mr T filed 8 September 2023, p 30-31.
In September 2023, Dr SS provided a medical certificate to the Respondent in which he asserted that the Respondent: received medical treatment from September 2023 to October 2023 inclusive;[61] was suffering from acute chronic pain with weakness of limbs;[62] had an appointment with the pain specialist and surgeon in late 2023;[63] had been referred to a psychologist for treatment of his anxiety and depression[64] and would be unfit to appear in court during this period.[65]
[61] Affidavit of Mr T filed 8 September 2023, p 26.
[62] Affidavit of Mr T filed 8 September 2023, p 26.
[63] Affidavit of Mr T filed 8 September 2023, p 26.
[64] Affidavit of Mr T filed 8 September 2023, p 26.
[65] Affidavit of Mr T filed 8 September 2023, p 26.
Despite the latter assertion, the Respondent appeared on his own behalf and made submissions in support of the adjournment of the trial, focusing particularly on his assertions about the Applicant’s alleged non-disclosure and the impact of this on the trial and, in particular, on the ascertainment of the value of the property of the parties.
In September 2023, Dr QQ provided a report which outlined the impacts of the Respondent’s condition on his ability to participate in the proceedings. The contents of this report may be summarised as including that:
(a)there is no deficiency in the Respondent's cognitive capacity, except for the impacts and effects of his increased intake of medications and the side effects of that medication, due to new neurological changes, an increase in pain and change in bodily function since early 2023 (which are detailed in MRI findings in mid-2023);[66] and
(b)due to the recent worsening of the Respondent’s condition, his opinion was that the Respondent would realistically be unable to attend to matters of preparation ahead of the scheduled trial date and would also require additional time to prepare to present in front of the court;[67] and
(c)the Respondent has had a significant recent exacerbation of his condition – he had recently had a CT scan in August 2023 due to severe pain with neurological problems impacting his lower limbs, bladder and bowel;[68] and
(d)the Respondent has developed significant neurological compression and advanced degeneration and will require medical and possibly surgical treatment for this significant condition;[69] and
(e)the Respondent suffers significant pain and dysfunction;[70] and
(f)due to the Respondent’s severe pain, he needs to use sedating medications (including opioid medications) which may further impair his ability to prepare for the matter ahead of the court and to present in front of the court without undue sedation;[71] and
(g)the Respondent had intervention in May 2023 which resulted in misadventure and accidental eye damage, which has further limited him as he recovers.[72]
[66] Affidavit of Mr T filed 19 September 2023, p 21.
[67] Affidavit of Mr T filed 19 September 2023, p 21.
[68] Affidavit of Mr T filed 19 September 2023, p 21.
[69] Affidavit of Mr T filed 19 September 2023, p 21.
[70] Affidavit of Mr T filed 19 September 2023, p 21.
[71] Affidavit of Mr T filed 19 September 2023, p 21.
[72] Affidavit of Mr T filed 19 September 2023, p 21.
Dr QQ asked that the court consider deferring the trial whilst the Respondent attended to his ongoing painful spinal and neurological condition.[73] He said the Respondent cannot sit through a seven day trial scheduled from 3 October 2023 to 9 October 2023 due to an increase in his pain levels, loss of ability to control his bowels, bladder and lower limbs.[74] He also stated that the Respondent would be at a disadvantage and unable to prepare for trial, due to the change in his neurological functioning, the side-effects of the medications prescribed to him and with further surgeries imminent.[75] He said he was scheduled to consult with the Respondent again in late September 2023 to review options and strategies to deal with the new issues with the Respondent’s spine. He also said that there were unknown factors in the treatment of the Respondent’s condition which should be determined appropriately in time – he said it may take a minimum of six months, but more likely nine months, to implement a plan so that the Respondent was able to progress these matters. [76]
[73] Affidavit of Mr T filed 19 September 2023, p 22.
[74] Affidavit of Mr T filed 19 September 2023, p 22.
[75] Affidavit of Mr T filed 19 September 2023, p 22.
[76] Affidavit of Mr T filed 19 September 2023, p 22.
As already noted, it is clear from the above that the Respondent’s health issues are chronic and long-standing. They have not arisen since the matter was first listed for trial by the order made on 4 February 2022. In the time since then, the Respondent has been able to participate in the trial in the Supreme Court of Queensland which culminated in the Orders made by Cooper J in late 2022. He has also given instructions for the numerous steps taken by his former solicitors on his behalf in these proceedings, including for the preparation of the Further Amended Response by which he outlined those orders which he asserted to be just and equitable in the circumstances of his case.
This is not a case where, for example, the parties were afforded only a couple of months within which to prepare their evidence; it is not a case where, without notice and during the time provided for the parties to prepare their cases, a party has suffered a catastrophic injury which has impacted on that party’s ability to cause their evidence to be prepared. Rather, this is a case in which the parties have known that, absent resolution by agreement, the matter was going to trial and where such trial was first listed to be heard in August 2022 – and then in March 2023: before the more recent changes to the Respondent’s condition since April 2023.
There has been, in my view, more than ample time accorded to the Respondent to allow him to be able to complete an affidavit of evidence in chief and a Financial Statement (as he sought to do by the various consent directions made over time), even taking into account the impact on his functioning of his longstanding medical issues. If more time was needed to complete these tasks than would have been required for litigant without the Respondent’s medical issues, the chronology of orders and directions set out above makes it clear, in my view, that such time has, in fact, been available to the Respondent.
I consider that a litigant such as the Respondent, who knows that they suffer from medical conditions which may make the preparation of their evidence take longer than would otherwise be the case, bears the responsibility of ensuring that, whilst dealing with their condition, they can comply with the dates they agreed for the filing of material.
The Respondent also submitted that the Applicant had failed to disclose the existence of property asserted to be of significant value and that such failure meant that the value of the property of the parties was unable to be determined and, accordingly, the trial should be adjourned.
Litigation in this court abounds with allegations and counter-allegations of non-disclosure. Remedies exist for an established failure to comply with the ongoing obligation of disclosure cast upon litigants by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules).[77]
[77] See, for example: Weir v Weir (1993) FLC 92-338 at 79,593.
Even if the Applicant has failed to disclose as asserted by the Respondent (which was denied by her Counsel), I am not persuaded that such alleged failure provides a reasonable explanation for the Respondent’s failure to comply with the various directions made by consent over time for him to file an affidavit of evidence in chief and a Financial Statement.
Given:
(a)the time since the commencement of the property settlement proceedings and the desirability of concluding the same; and
(b)Dr QQ’s opinion in 2018 about the anticipated aggressive degeneration of the Respondent’s condition over time; and
(c)the previous occasions on which the matter has been listed for trial; and
(d)the number of previous directions made by consent to accord the Respondent the opportunity to file an affidavit of evidence in chief and a Financial Statement; and
(e)the evidence given by the Respondent’s former solicitors about the extent to which his affidavit had been nearly completed and their assertion about their anticipated filing of the same; and
(f)that the single expert witnesses jointly engaged by the parties have completed their reports; and
(g)that the Applicant is ready to proceed; and
(h)the need to bring an end to the parties’ financial relationship; and
(i)that the court is entitled to consider the effects of an adjournment on court resources and the competing claims by litigants in other cases, as well as the interests of the parties;[78] and
(j)that “the resolution of disputes serves the public as a whole, not merely the parties to the proceedings”,[79]
I am not persuaded that it is appropriate or just to adjourn the trial of the proceedings because of the Respondent’s allegation that the Applicant has failed to discharge her duty to make disclosure as required by the Rules or because of the health issues with which the Respondent must contend.
[78] Sali v SPC Ltd and Another (1993) 116 ALR 625 at p.629
[79] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [113].
The Applicant is entitled to prosecute these proceedings to a conclusion; her ability to do so should not, in my view, be further delayed by the Respondent’s failure to take up the opportunity afforded to him on multiple occasions, by directions made by consent, to file a trial affidavit and a Financial Statement.
Application to proceed as an undefended hearing
The Applicant has remedied her relatively minor failure to comply with the most recent set of trial directions. She is ready to proceed to trial. The single expert witnesses engaged by the parties have provided their reports. Despite his consent to orders requiring him to file the same, there is no trial affidavit evidence from the Respondent or from any other person on his behalf.
Mr Coulsen of Counsel who appeared for the Applicant submitted, in essence, that, given the Respondent’s failure to comply with directions made by consent on 15 February 2023 that he file an affidavit of evidence in chief and a Financial Statement, the trial should proceed on an undefended basis.
Rule 1.33(2)(c) of the Rules provides that, if a party to a proceeding does not comply with the Rules, the Family Law Regulations or a procedural order, the court may determine the proceeding as if it were undefended. In addition, this prospect was specifically referred to in the trial directions made by consent on 10 February 2022, 23 August 2022 and 15 February 2023, at which times the Respondent was represented by his former solicitors.
I accept that, notwithstanding the extensive powers of case and trial management specified in the Rules (including in r 1.33(2)(c)), there remains an obligation to ensure a fair trial and to afford procedural fairness to all parties in proceedings. However, I also consider that authority has made clear that what is required is the affording of the opportunity to present material information and make submissions relevant to a decision which may adversely affect a party’s rights[80] – not that a party may delay the conclusion of proceedings because, despite having been afforded such an opportunity on multiple occasions, they have failed, over a significant period of time, to take it up.
[80]See, for example: Allesch v Maunz (2000) 203 CLR 172 per Kirby J at [35]; Kioa v West (1985) 159 CLR 550 at p 582.
Further, it seems to me that the requirement that a party be afforded an opportunity to be heard about a decision which may adversely affect that party’s rights does not mean that the processes of the court itself are to be forgotten or ignored – the opportunity to be heard is the opportunity to be heard in accordance with the practices and procedures of the relevant court, as put into effect by the Rules of that court which govern those procedures and the procedural orders made to facilitate the litigation. In an affidavit court such as this court, the manner in which parties take up the opportunity to be heard is managed by the making of procedural orders which allow the parties to file affidavits; I do not think it could be said that a party who fails to take up the opportunity they sought to file an affidavit of evidence in chief and attempts to insist on giving oral evidence at the trial has been denied procedural fairness or a fair trial.
The various directions to which reference has already been made make it clear, in my view, that the Respondent has been afforded ample and repeated opportunity to file an affidavit of evidence in chief; a little over 18 months have passed since the proceeding was first listed for trial; a little over 18 months have passed since the first directions were made by consent to require the Respondent to file an affidavit of evidence in chief and a Financial Statement. He has not complied with any of the orders, made by consent, which required him to file an affidavit of evidence in chief and a Financial Statement.
As already noted, I consider that the Respondent has been afforded every opportunity to ensure that whatever was needed to be done, given his chronic health issues and medical afflictions, to ensure that his affidavit of evidence in chief and Financial Statement were filed in accordance with the trial directions was done. This is not a case in which a party has simply been late in filing a required document and has provided an explanation for the delay – here, there is simply no affidavit of evidence in chief and no Financial Statement from the Respondent despite the trial being listed to commence next week.
In the circumstances of this case, I am not persuaded that the Respondent has established that there is a reasonable explanation for his failure to comply with the February 2023 directions which afforded him the (further) opportunity to file an affidavit of evidence in chief and a Financial Statement. Whatever the prejudice to the Respondent of permitting the Applicant to proceed as if the proceedings were undefended, it is, in my view, entirely of his own making.
Given:
(a)the Respondent’s failure to comply with the February 2023 directions, made by consent, which required him to file an affidavit of evidence in chief and a Financial Statement; and
(b)the Respondent’s failure to comply with the previous directions made by consent to require him to file an affidavit of evidence in chief and a Financial Statement; and
(c)the history of the litigation; and
(d)the matters set out in paragraph 48; and
(e)my conclusion that the Respondent has failed to provide an adequate explanation for his failure to comply with the requirement that he file an affidavit of evidence in chief and a Financial Statement,
I am persuaded, in the exercise of the broad discretion afforded to trial judges, that the appropriate and just course in all the circumstances is that, on 3 October 2023, I determine the proceeding as if it were undefended.
The consequences of concluding that the proceedings should be determined as if it were undefended
Mr Coulsen for the Applicant submitted that, if the court was persuaded to make an order that the proceeding be determined as if it were undefended, the Respondent’s participation at the trial should be limited to making submissions about the terms of the orders which are just and equitable in the circumstances established by the evidence adduced by the Applicant.
The Respondent declined the offer that the court take an early lunch adjournment so that he could have additional time to consider the written and oral submissions made on behalf of the Applicant. As already noted, the prospect that failure to comply with the trial directions could result in the court deciding to determine the proceeding as if it were undefended was a prospect that was first mentioned in the directions made on 10 February 2022 and reiterated thereafter, including most recently in February 2023. Whilst he appeared on his own behalf on this occasion, the Respondent was legally represented on all of these prior occasions when directions were made by consent in terms which include the potential consequence of non‑compliance with the same.
Given this, whilst the Respondent did not specifically address the consequences for him of an order that the proceedings be determined as if they were undefended, I consider that he was accorded the opportunity to do so. He certainly took the opportunity to make submissions about the issue of the Applicant’s alleged non-disclosure.
Procedural orders are made to assist parties in the fair and timely preparation of their matter. Authority has established that, where non-compliance with orders will defeat the ascertainment of justice, suitable remedies, including the drastic step of excluding a party from further participation in a trial, must be found.[81]
[81] Tate v Tate (2000) FLC 93-047 at [108].
The mere fact that the Respondent has chosen to file a Further Amended Response does not change the impact of his failure to file an affidavit of evidence in chief, having previously agreed on a number of occasions that he would do so: it is not for a litigant to pick and choose which of the agreed directions he or she will comply with.
In this court (which does not use pleadings as a matter of course as the means by which the parties identify the bases of their competing claims), the affidavits of the parties seem to me to provide the mechanism by which parties inform each other of their respective contentions vis‑à‑vis the relevant statutory considerations to which regard must be had in the determination of their dispute.
In this case, despite having agreed on a number of occasions, as evidenced by his consent to the directions discussed earlier, that he would file an affidavit of evidence in chief and a Financial Statement, the Respondent has failed to do so.
In this case, absent an affidavit from the Respondent, the Applicant does not have the benefit of knowing what he says about those statutory considerations to which regard must be had in determining those orders which, in the circumstances, are just and equitable. She does not know what evidence, if any, the Respondent would seek to have the court consider; she does not know the evidentially supported case that the Respondent advances.
Given these consequences, in the exercise of the broad discretion afforded to judges at first instance and noting that natural justice requires a party to be afforded an opportunity to be heard in a manner that accords with the practices and procedures implemented by the court in its management of the cases it is asked to determine, I consider that the Respondent’s opportunity to participate and be heard at the trial should properly be limited to making submissions about the terms of the orders which he asserts are just and equitable.
Given this conclusion, I am confident that I will be able to ensure that the Respondent is accorded the proper and appropriate opportunity to make such submissions in a manner that takes into account the health issues with which he has to contend.
The Applicant’s application to adduce expert evidence other than from single expert witnesses
The Applicant seeks leave to adduce and rely on evidence from the following, who are other than single expert witnesses:[82]
(a)Mr N from Q Chartered Accountants; and
(b)Mr O from R Company; and
(c)Mr P from Q Chartered Accountants; and
(d)Dr G, a psychiatrist.
[82] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.10(1).
The adversarial expert evidence
The evidence given by Mr N is sought to be relied on by way of adversarial expert report in relation to the evidence given by Ms V, a single expert witness, whose report was filed on 20 June 2023. The evidence includes that Mr N’s affidavit, to which is annexed his report and his curriculum vitae, was filed on behalf of the Applicant on 25 August 2023 and that his evidence relates to the value of the Respondent’s previously held interest in H Pty Ltd.[83]
[83] Affidavit of Mr XX sealed 5 September 2023 at paragraphs 4-7; 11 – 13.
The evidence given by Mr O is sought to be relied on by way of adversarial expert report in relation to the evidence given by Mr KK from XX Property Advisors, a single expert witness, whose reports were finalised on 28 August 2023. The evidence includes that Mr O’s affidavit, to which is annexed his report and his curriculum vitae, was filed on behalf of the Applicant on 31 August 2023 and that his evidence relates to the value of the Respondent’s previously held interest in H Pty Ltd and the YY Partnership.[84]
[84] Affidavit of Mr XX sealed 5 September 2023 at paragraphs 4, 8-10; 11 -13.
Rule 7.08 of the Rules provides that if a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission. The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or
(b)another expert witness knows of matters, not known to the single expert witness that may be necessary for determining the issue; or
(c)there is another special reason for adducing evidence from another expert witness.[85]
[85] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.08(2).
The submissions made on behalf of the Applicant included that the grounds for the leave sought insofar as Mr N and Mr O are concerned is set out in the supporting affidavit of the Applicant’s solicitor. That affidavit relevantly includes only the assertion that the evidence given by Mr N and Mr O is “necessary as they give adversarial expert evidence which, as part of the Applicant wife’s case, shall be relied upon by her to challenge aspects of the Single Experts’ evidence”.[86]
[86] Affidavit of Mr XX sealed 5 September 2023 at paragraph 11.
This mere assertion does not satisfy of the matters prescribed by the Rules about which I must be satisfied before considering whether or not to exercise the discretion in favour of permitting the Applicant to adduce evidence from an expert witness other than the respective single expert witnesses. Further, nothing in the evidence of the Applicant’s solicitor, or the submissions made in support of the application, suggested that the interests of justice will be compromised if the only evidence given about the issues the single expert witnesses (being Ms V and Mr KK) have been appointed to address is given by those jointly appointed experts.[87]
[87] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.02(c).
Given the above and noting that the purpose of Part 7.1 of the Rules includes to restrict expert evidence to that which is necessary to resolve or determine a proceeding and to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness,[88] I decline to accede to the application to afford the Applicant permission to adduce the evidence given by Mr N and Mr O.
[88] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 7.02(b) and (c).
The non-adversarial expert evidence
The evidence includes that an affidavit by Mr P, to which is annexed his expert report, his curriculum vitae and a transcript of the evidence he gave in the Supreme Court proceedings about the Applicant’s economic loss consequent upon the Respondent’s conduct in December 2013, was filed on 23 January 2023.[89]
[89] Affidavit of Mr XX sealed 5 September 2023 at paragraphs 14-16; 20.
The evidence includes that an affidavit by Dr G, to which is annexed his expert report, his curriculum vitae and a transcript of the evidence he gave in the Supreme Court proceedings about the Applicant’s mental health consequent upon the Respondent’s conduct in December 2013, was filed on 24 January 2023.[90]
[90] Affidavit of Mr XX sealed 5 September 2023 at paragraphs 14; 17-20.
The matters to which a court may have regard in determining an application for leave to adduce evidence at a trial from an expert witness other than a single expert witness includes those set out in r 7.11(3) of the Rules. Given that the Applicant has already obtained evidence from these proposed witnesses, there is no prospective issue of the impact of the same on the costs of the proceedings or that the Applicant being granted leave to adduce evidence from them will either expedite or delay the proceedings.[91] I accept that each of Mr P and Dr G has the specialised knowledge, based on their respective training, study or experience, relevant to the issue about which their evidence is to be given and appropriate to the value, complexity and importance of the proceedings.[92]
[91] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 7.11(3)(b, (c).
[92] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.11(3)(f).
Having regard to the purposes for which the Applicant seeks to rely on the evidence of Mr P and Dr G and in the circumstances of this case, I am satisfied that it is necessary in the interests of justice to permit the Applicant to adduce evidence from Dr G and Mr P at the trial.[93]
[93] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.02(e).
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 28 September 2023
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