Ding and Ding

[2016] FamCA 226

FAMILY COURT OF AUSTRALIA

DING & DING [2016] FamCA 226

FAMILY LAW – PRACTICE & PROCEDURE – trial vacated – where trial direction orders have not been complied with by either party – where there is judgment pending in the District Court – where the matter is referred to the Registrar.

Family Law Act 1975 (Cth)

APPLICANT: Ms Ding

RESPONDENT: Mr Ding

FILE NUMBER: ADC 4389 of 2012

DATE DELIVERED: 4 April 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs V. Lindsay

SOLICITOR FOR THE APPLICANT: Jaak Oks Lawyers

COUNSEL FOR THE RESPONDENT: Ms M. Pyke QC

SOLICITOR FOR THE RESPONDENT: Harry Alevizos

Orders

1. The trial listing for this matter to commence on Monday 11 April 2016 for five [5] days before the Honourable Justice Dawe is vacated.

2. The matter is referred to the Docket Registrar for listing at a date to be determined and for further orders to be made by the Docket Registrar providing for updated dates in relation to the filing of the documents previously set out in the order of 28 January 2016.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4389 of 2012

Ms Ding

Applicant

And

Mr Ding

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which relates to only financial proceedings, the children’s orders having been finalised some time ago.  The proceedings started back in November 2012.  The most recent orders that I have made in relation to preparing the matter for trial again were made on 28 January 2016, when both parties were represented.  Mr Alevizos appeared for the wife, Ms Pyke QC for the husband.  Specific orders were made, listing the matter for trial commencing for five days on 11 April 2016 and listing the matter for a compliance check before me today.

2. The significant orders were that by 4.00 pm on Tuesday, 8 March 2016, each party was to file and serve on all other parties various documents, including the affidavits of evidence-in-chief of all the permitted witnesses and updated financial statements.  I am hearing this matter on 4 April 2016.  Nothing has been filed in the Court since 28 January 2016, save and except some subpoenas and the current Application in a Case and the affidavit of the solicitor of the wife, to which I will refer in a moment.

3. The orders of 28 January 2016 provided also for the parties to make determinations in relation to objections to the evidence and to set those objections out in case outlines.  The orders also provided for the practitioners for each of the parties to file and serve case outlines by 4.00 pm on Tuesday, 29 March 2016 containing the usual matters, including a list of assets and liabilities and a list of objections and a dot point summary of argument.

4. The orders also provided that each party provide to the Court and the other party at the commencement of the hearing a statement setting out the costs incurred to that date, from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing, those orders being standard orders for the preparation of matters for trial.

5. Leave was granted to issue subpoenas to the permitted witnesses.  Then the orders listed the permitted witnesses.  It was proposed that the wife would be the only person being called to give evidence in her case, and in relation to the husband’s case, there were the husband and his brothers and possible other witnesses.

6. The matter comes on before me this morning because it is the compliance check date, but it also is brought on, apparently, because the Court accepted, on Friday, 1 April 2016, an Application in a Case filed by the wife’s solicitors, in which the wife seeks orders that the trial listed for 11 April 2016 be vacated and that the matter be made specially returnable before me this morning at 9.00 am.

7. It purports to have been supported by an affidavit of the solicitor for the wife, in which he refers to the reasons which he alleges the trial date should be vacated and includes reference to the difficulties the wife has had in finding funding to prepare the matter for trial and the difficulty which continues in relation to not having yet received the judgment of the District Court Judge Beazley, in relation to proceedings which are outstanding in which the wife is the defendant of a substantial claim being made by a company connected to the husband’s family, for monies she has allegedly stolen from that company or group.

8. The order made on 28 January 2016 specifically said that the matter was listed for the compliance check this morning, upon noting:

   At that listing, the Court will hear further submissions about the relevance of the decision of the District Court in relation to the claim by the company against the wife and whether the trial listing is proceeding if the judgment of the District Court has not been delivered.

9. The husband’s counsel points out that the liability of the wife to the company is not considered to be a relevant factor for the determination of the property settlement proceedings, because it is the husband’s case that he has no assets of any significance and that the only funds which are available for consideration in this property settlement application are the funds in the superannuation fund.  That is disputed on behalf of the wife, and it is alleged that a substantial indebtedness may arise after the determination by Judge Beazley.

10. The difficulty in this matter is that the orders were made on 28 January 2016 to prepare the matter for trial, but those orders have not been obeyed.  Neither party has complied with any of the orders made for the filing of any of the documents by 8 March 2016, nor by 29 March 2016.  The Court cannot, therefore, determine that the matter is ready for a trial to take place next week.

11. There has been no adequate explanation for the failure of the husband to comply with the orders of the Court.  Saying now that the “Documents are now ready to be filed and served” is not a sufficient explanation for matters which should have been attended to by 8 March 2016.

12. I therefore consider that the failure to comply with orders to have the matters before the Court in a proper fashion, for both parties to consider the other party’s case and documents and take into account those matters with sufficient time to prepare the matter for cross-examination in the trial are the factors which I take into account.  I consider that the judgment of Judge Beazley may well be a factor which could be dealt with, even if the trial did proceed next week.  It is the failure of the parties to comply with orders of the Court having given a clear indication that the trial was listed on the basis that those orders are obeyed.

13. If there is any further Application in a Case, then that will be dealt with in the appropriate way.  Otherwise, both parties face the risk of having their applications struck out for want of compliance with Court orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 April 2016.

Associate: 

Date:  11 April 2016