Dickson and Saller (No 2)

[2020] FamCA 672

FAMILY COURT OF AUSTRALIA

DICKSON & SALLER (NO. 2) [2020] FamCA 672

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – application for adjournment of trial – Application dismissed – orders to facilitate engagement of single expert witnesses – directions for trial.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

APPLICANT: Mr Dickson

RESPONDENT: Ms Saller

FILE NUMBER: BRC 1522 of 2017

DATE DELIVERED: 17 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 7 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson of Senior Counsel

SOLICITOR FOR THE APPLICANT: Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT: Mr Looney of Queen’s Counsel with Mr Bunning of Counsel

SOLICITOR FOR THE RESPONDENT: Barron Family Law

Amended on 25 August 2020 pursuant to Rule 17.02 of the Family Law Rules 2004

Orders

IT IS ORDERED THAT

1. By no later than 4.00 pm on Friday, 27 August 2020, Ms Saller advise Mr Dickson whether she wishes that Ms Q prepare an updated valuation of the Dickson Group for the financial year ended 30 June 2020 or whether she wishes to proceed to trial on the basis of Ms Q’s valuation of the same as at 30 June 2019.

2. If Ms Saller has advised that she wishes Ms Q to prepare an updated valuation of the Dickson Group for the financial year ended 30 June 2020 then, by no later than 4.00 pm on Monday, 31 August 2020, the parties shall jointly instruct Ms Q to:

   (a)prepare an updated valuation of the Dickson Group for the financial year ended 30 June 2020; and

   (b)commence an assessment of the possible taxation consequences for the Dickson Group as at 30 June 2020.

3. If Ms Saller advises that she wants to proceed to trial on the basis of Ms Q’s valuation of the Dickson Group as at 30 June 2019 then, by no later than 4.00 pm on Monday, 31 August 2020 the parties shall jointly instruct Ms Q to commence an assessment of the possible taxation consequences for the Dickson Group as at 30 June 2019.

4. Save as outlined above and in the Order made on 7 August 2020, the Application in a Case filed 3 July 2020 and the Response to Application in a Case filed 30 July 2020 are 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 Dickson & Saller 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 BRISBANE

FILE NUMBER: BRC 1522 of 2017

Mr Dickson

Applicant

And

Ms Saller

Respondent

These Reasons, which were delivered on 17 August 2020, have been amended pursuant to Rule 17.02A of the Family Law Rules 2004 by replacing the Orders which precede them with the Order amended pursuant to the Slip Rule.

REASONS FOR JUDGMENT

1. On 7 August 2020, I heard the parties in respect of the interim relief sought in the Application a Case filed 3 July 2020[1] and the Response to the same, filed 30 July 2020.

   [1]Sealed on 14 July 2020.

2. I made a number of orders that day, reserved two aspects of the interim relief sought for further consideration and informed the parties that, as soon as I could, I would deliver short reasons in support of the orders made on 7 August 2020 and the orders yet to be made.

3. These are those Reasons.

4. Proceedings between these parties, who separated in mid-2016, were commenced in the Federal Circuit Court in February 2017.

5. The current proceedings were originally listed for final hearing for nine days commencing on 5 May 2020; they were subsequently adjourned on 26 March 2020 as a result of the impacts of the COVID-19 pandemic. They are currently listed for final hearing for nine days commencing on 27 October 2020.

6. By the proceedings, the parties seek orders to determine the following in issue between them: property settlement proceedings; an application for an order for the payment of spousal maintenance; an application for child support departure orders and parenting orders.

The application to adjourn the following aspects of the proceedings to a date no earlier than 1 May 2022 for final hearing: property settlement proceedings; spousal maintenance application and application for child support departure orders

1. Ms Saller sought that the property settlement proceeding, spousal maintenance application and application for child support departure orders are adjourned to a date no earlier than 1 May 2022 and that only the parenting orders aspect of the proceedings be heard in October/November this year.

2. The application for adjournment was not made pursuant to s 90SM(5) of the Family Law Act 1975 (Cth). Rather, the bases for the same were as outlined in the written submission provided by Ms Saller’s legal representatives, supplemented orally by Mr Looney QC[2] at the hearing.

   [2] Who appeared with Mr Bunning of Counsel.

3. Mr Dickson opposed the adjournment. He did so for the reasons submitted by Mr Richardson SC orally at the hearing.

4. I do not propose to summarise the submissions made on behalf of each party here: rather, I consider it sufficient simply to record that I prefer the submissions made by Mr Richardson SC in opposing the adjournment. I am not persuaded that adjourning the proceedings in the manner sought is necessary to do justice between the parties.

5. In exercising the discretion to decline to accede to Ms Saller’s application for adjournment – being a discretion bestowed upon a trial Judge and a matter of practice and procedure – I have also placed particular weight upon the following matters:

   a)that the application to adjourn the particularised aspects of the proceedings must be considered within the specific legislative environment which includes that:

   a)a positive duty is cast upon the Court to bring an end to the parties’ financial relationships as far as practicable;[3] and

   b)the main purpose of the Family Law Rules 2004 (Cth) is to ensure that each case is resolved in a just and timely manner;[4] and

   b)the wider interests of other litigants in other proceedings in the Court to have their matters heard and the public interest in the proper and efficient use of the scarce public resources of the Court.[5]

   [3] s 81 Family Law Act 1975 (Cth)

   [4] Family Law Rules 2004 (Cth) r 1.04.

   [5]Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

Appointment of further single expert witnesses

1. I think it clear from Ms Q’s most recent report that it is necessary for the parties to appoint single expert witnesses to provide expert evidence about the legal taxation consequences and Mr Dickson’s remuneration. There was no issue between the parties about this and the orders made reflect what I regard to have been a shared position about the manner in which the practicalities associated with these appointments and the obtaining of the expert evidence should be managed so as to ensure that such evidence is available to Ms Q and the Court at the trial which will begin in late October this year.

2. Similarly, there was no issue that, should I decline to accede to the application to adjourn the proceedings as sought by Ms Saller, orders should properly be made to facilitate the preparation of updated valuations by Z Valuers of nominated real property.

Affording Ms Saller the opportunity to “elect” whether Ms Q should prepare an updated valuation of the Dickson Group as at 30 June 2020 for the purposes of the trial or whether the trial should proceed using the valuation based on the financial position as at 30 June 2019

1. In responding to the application for adjournment discussed above, Mr Dickson’s evidence included that he was content for the trial to proceed on the basis that the Dickson Group be accorded the value prescribed by Ms Q in her most recent report – a valuation determined as at 30 June 2019 – albeit that the same be adjusted following the receipt of the expert taxation and remuneration evidence discussed during the hearing.

2. During his submissions, though, Mr Richardson SC outlined that Mr Dickson did not oppose Ms Q being asked to prepare an updated valuation, as at 30 June 2020; he submitted that, if Ms Saller “elected” to take this course, Mr Dickson would ensure that Ms Q was provided with all necessary documents by no later than 31 August 2020, so as to enable her to undertake this task.

3. Mr Looney QC for Ms Saller submitted that Ms Saller be afforded until 31 August 2020 to make this “election”; in response, Mr Richardson SC raised concerns about the impact of such a delay on Ms Q’s ability to complete the task so as to ensure that the trial could proceed on its listed dates and proposed that Ms Saller be required to inform of her “election” by 14 August 2020.

4. The orders made today reflect my determination of those which are appropriate to reflect the balance of according Ms Saller sufficient time to consider her position and to ensure that Ms Q is accorded sufficient time to prepare the updated report for the trial.

Disclosure

1. Whilst Ms Saller sought orders for disclosure as particularised in the Application, I was told by Mr Looney QC that Mr Dickson had provided significant disclosure very recently. Such provision did not, in Mr Looney QC’s submission, erase the asserted need to make orders for ongoing disclosure.

2. On 7 August 2020, I ordered that, by the 25^th of each month, Mr Dickson provide Ms Saller with a management report, in the form of Exhibit 1, for the previous month.

3. Given that Mr Dickson has recently provided disclosure, I am not persuaded to make the orders sought on Ms Saller’s behalf.

4. Of course, the failure to make specific orders for disclosure does not abrogate from Mr Dickson the ongoing obligation imposed on him by Chapter 13.1 of the Family Law Rules 2004 (Cth). The consequences of a failure to comply with the same are as clearly prescribed in Rule 13.14 of the Rules.

5. In addition, the Rules provide Ms Saller with a mechanism to require Mr Dickson to answer specific questions about matters she asserts are relevant to the determination of the issues in dispute between them.

6. Whilst Mr Looney QC raised concerns about whether all the work yet to be done can be done so that the trial can proceed as listed, I remain confident that, with appropriate diligence and cooperation and in discharge of the obligations cast on them by Rule 1.08 of the Rules, the parties and their legal representatives can ensure that this is the case.

I certify that the preceding twenty-three (23) paragraphs a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 17 August 2020.

Associate:     

Date:              17 August 2020