Ducatti and Tritton and Anor - [2018] FamCA 979

FAMILY COURT OF AUSTRALIA

DUCATTI & TRITTON AND ANOR

[2018] FamCA 979

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the wife seeks an adjournment of the final hearing in the week prior to that listing – Where the husband and the Second Respondent oppose that adjournment – Where the parties have not yet obtained the ordered expert valuation reports in respect of real property contained in the matrimonial asset pool – Where the parties have not yet obtained the ordered Single Expert in respect of parenting matters – Where the parties have not yet filed and served their Affidavit material – Where the Court finds that the granting of an adjournment will cause detriment to the Respondents and the other litigants in this Court – Where the Court finds that this is counterbalanced by the importance of the parties properly putting their contentions to the Court at final hearing – Where the Court finds that the parties have not had the opportunity of clarifying the relevant expert reports, in terms of the procedures set out in the Family Law Rules 2004 – Adjournment granted.

Federal Court of Australia Act 1976 (Cth), s. 37M

Family Law Rules 2004 (Cth), r. 1.04

Gadde v Gadde [2015] FamCA 617
Hart v Deputy Commissioner of Taxation [2016] FCA 250
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

APPLICANT:

Ms Ducatti

RESPONDENT:

Mr Tritton

INTERVENOR:

Mr E Tritton

FILE NUMBER:

SYC

6271

2016

DATE DELIVERED:

6 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland

HEARING DATE:

6 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

KD Holmes Solicitors

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

SOLICITOR FOR THE INTERVENOR:

York Law Family Law Specialists

Orders

THE COURT ORDERS THAT:

The hearing of this matter listed to commence on 15 November 2018 is adjourned, with the matter to be heard over six days, commencing on 3 June 2019 at 10:00am.
The parties pay their share of the Single Expert fees, by 30 January 2019.
The parties are to act in accordance with the Family Law Rules 2004, including in respect to time limits, in seeking any necessary clarification from the Single Experts, following receipt of their reports.
The Applicant and the First Respondent file and serve any Affidavits upon which they intend to rely, by 1 March 2019.
The Second Respondent file and serve any Affidavits upon which he intends to rely, by 14 March 2019.
The First Respondent’s Response to an Application in a Case filed on 6 November 2018 and the Second Respondent’s Response to an Application in a Case filed on 1 November 2018 be adjourned to 15 March 2019 at 10:00am, in respect to those parts of the respective applications where it is sought that the matter proceed undefended.
Costs of this application and costs thrown away by the adjournment are reserved.

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 Ducatti & Tritton 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 SYDNEY

FILE NUMBER: SYC 6271 of 2016

Ms Ducatti

Applicant

And

Mr Tritton

Respondent

EX TEMPORE JUDGMENT

This matter has been listed for final hearing, to commence in two weeks’ time. The wife, who has only recently re-engaged legal representatives, applies for an adjournment. The proceedings involve both parenting and property matters. The background to the issues in dispute have been referred to in numerous decisions of this Court concerning interim applications made by the parties.
The adjournment application is made in circumstances where previous orders have been made to obtain valuation reports in respect of the properties located at F Street, Suburb G NSW …, H Street, Suburb D NSW … and J Street, Suburb K VIC ... Those valuation reports have been completed, however, the valuers have not as yet been paid in full. In that respect it appears that the husband has recently complied with his obligations in respect to meeting 50 per cent of that cost, while the wife has failed to do so. Once the valuation reports are obtained, the parties will need to calculate capital gains tax implications. At this stage, it is not possible to determine whether there will be a dispute in respect to those valuations and/or the capital gains tax implications.
Similarly, there is an outstanding report of Dr B in respect to parenting matters. As I understand it, the husband has attended to payment of his share of that report, while the wife has failed to do so. The wife asserts that she has not made those payments in circumstances of financial difficulty.
The husband and the Second Respondent, being the husband’s father, contend that the wife, in fact, has access to an interest in the property at J Street, Suburb K VIC …, which would have provided her with an opportunity to raise funds, for the purpose of meeting those expenses. In determining this adjournment application, I am not in a position to consider whether or not the wife had the ability to raise such funds.
In this matter, aspects of the parties’ conduct to date gives me real concern.
In terms of wife’s conduct, the Second Respondent’s Affidavit filed on 1 November 2018 sets out, in quite specific detail, the delays caused by the wife in terms of failing to nominate Single Experts and drafting joint letters of instruction. The wife’s solicitor submitted that, in considering the wife’s conduct in that respect, the Court should appreciate she has been self-represented since approximately May 2018. I recognise that to be the fact, however, in my view, there was no reasonable basis for the wife’s failure to engage in respect to the process of instructing the experts.
As I have stated, the issue of the wife’s financial circumstances is a matter that will ultimately be determined at hearing. If it is found that the wife has, in fact, had the capacity to meet her share of the expert reports, then that may ultimately be a matter for the Court to consider in determining whether an order for costs is made in respect to both the cost of this application and of costs thrown away by the adjournment, which I propose to grant.
In terms of the other parties’ conduct in this matter, I note that orders made on 21 May 2018 required that the husband and the Second Respondent provide certain financial information to the wife, in respect to the conduct of their joint venture, L Pty Ltd. That information was not provided to the wife in the 42 days stipulated by those orders. However, I am advised that the information was provided to the wife at least by 19 October 2018. In any event, it is submitted by the solicitor for the husband that the orders made on 22 October 2018, extending time for that information to be provided, rectified any breach.
The wife has advised the Court, both on 22 October 2018 and today, that she has issued a subpoena to the accountant who prepared the financial records of L Pty Ltd, which is returnable within the coming days. The wife contends that she is prejudiced as a result of not yet having access to that material, as she may seek to challenge aspects of the information provided in those records. Again, in these circumstances, I am not in a position to determine the adequacy of the documentation that has been provided to the wife, pursuant to the obligations of disclosure concerning the affairs of L Pty Ltd. However, again, if it appears that the information that has been provided was sufficient to enable the wife to properly consider the records, then that again is a matter that the Court may have regard to in considering any application for costs.
The wife contends that, if the matter was to proceed to final hearing, she would be at a disadvantage, in terms of there not being an “even playing field”, in circumstances where the husband and the Second Respondent appear to be ad idem in respect of their positions. Further, it is also acknowledged that the Second Respondent has provided funds of approximately $100,000 to the husband to assist in the preparation of his case.
The issue as to whether the wife has had a similar capacity to raise funds to more diligently prepare her case is a question that I reserve for determination at a later date. As I have indicated, if it becomes clear that the wife has failed to take up opportunities available to her to diligently prepare her case, particularly in respect to the obtaining of the valuations and report of Dr B, that may well have significant cost implications.
The concern I have in respect to the property valuation reports, and more significantly, in respect to the report of Dr B, is that, while the husband has offered to initially meet the total cost of those reports so that they may be released to the parties, even if those reports were released to the parties today, the parties would have insufficient time to properly consider their contents, including in terms of seeking any clarification from the single experts, in accordance with Division 15.5.6 of the Family Law Rules 2004 (“the Rules”).
The issues associated with the prospect of the Court making any decision on the basis of those reports, in circumstances where a party did not have the opportunity to exercise the rights that they otherwise would have had under the Rules, has the potential to result in further litigation and is a matter that I consider to be of relevance in these proceedings.
The relevant law in respect to adjournments generally has been set out in a number of cases. In Gadde v Gadde [2015] FamCA 617 at [18] to [22], I endeavoured to summarise relevant principles as follows:
18. In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirby J discussed why an adjournment application requires a balancing exercise to be undertaken. That exercise involves consideration of the resources of the Court, its rules and its management and also the need to consider justice for both parties: Anton & Malitsa (No. 2) [2009] FamCA 242.
19. Litigants, whether represented or unrepresented, should be aware that the time of a court is a public resource which must be managed effectively in the interests of not only the immediate litigants but also in the interests of other litigants waiting for their matters to be listed for hearing: Sali v SPC Ltd (1993) 116 ALR 625.
20. In that context, courts place “considerable emphasis on the importance of dealing with cases expeditiously”: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as referred to by the Full Court in Nabers & Nabers [2011] FamCAFC 145 at [51].
21. However, it is a fundamental principle of justice that a person appearing before a court of law is given the opportunity of presenting material and making submissions relevant to issues being considered by the court before a decision is made by that court: Allesch v Maunz (2000) 203 CLR 172 at 184 – 85; Jones v National Coal Board [1957] 2 QB 55 at 67, Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145.
22. In that context, “proper consideration needs to be given to the particular disadvantages suffered by a self-represented litigant”. That is not to say, however, that a self-represented litigant is entitled to any “privilege” over and above that of a represented litigant: Gallo v Dawson (1990) 93 ALR 479 per McHugh J.
Also of relevance is a useful summary provided in the decision of Edelman J in Hart v Deputy Commissioner of Taxation [2016] FCA 250 (“Hart’s case”). In that case, his Honour referred to the decision of Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42], where the Court said:
In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the [Federal Court of Australia] Act, to which we have referred earlier in these reasons in summary form.
Section 37M of the Federal Court of Australia Act 1976 (Cth) deals with case management principles, including the objective of matters being resolved “according to law” and “as quickly, inexpensively and efficiently as possible”. Similar principles are reflected in Rule 1.04 of the Family Law Rules, which provides that;
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case
Each of the advocates at the bar table today, appropriately, recognised that purpose is relevant to my consideration of the wife’s adjournment application. This includes the impact on other litigants.
In Hart’scase, Edelman J summarised the four considerations for a determination of an adjournment application emerging from the majority decision of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as follows:
a)The explanation for the adjournment sought;
b)The detriment to the other party;
c)The detriment to the other litigants in the Court; and
d)The parties’ choices to date in the litigation as to the claims to be made, and how they were to be framed.
By way of clarification or addition I would add to that fourth consideration the manner in which the parties have conducted the proceedings to date.
I note that have earlier outlined the wife’s explanation for having sought an adjournment, in terms of that first consideration.
The Affidavits of the husband and the Second Respondent set out their contentions in respect to the second consideration, being the detriment they will suffer if the wife’s adjournment application is granted.
Relevantly, this matter was previously expedited as a result of circumstances primarily confronting the Second Respondent. He is currently aged 67 years and contends that he is unable to progress his business activities as a result of these proceedings affecting his interests in the Suburb G and Suburb D properties. The Second Respondent has given evidence regarding the resulting stress that has been caused to him, as well as his inability to move towards retirement. It should also be noted that, as a result of the Court granting that expedition, the Second Respondent agreed that he would not proceed with a separate application in respect to his claimed interest in those properties in the Supreme Court in New South Wales. In other words he has acted to his detriment on the understanding that this matter would be dealt with expeditiously.
In terms of the third consideration, being the detriment that would be caused to other litigants in the Court if the adjournment were granted, it is well understood that there are currently lengthy delays in the Court. Part 1.2 of the Rules requires the Court, lawyers and litigants to work to achieve the main purpose of the Rules, which is set out in Rule 1.04, to which I have referred.
In this matter, the number of applications that that parties have brought has placed, not only a significant burden on themselves, but also a significant burden on Court resources and judicial time. This includes the fact that the hearing time allocated for the final hearing of this matter, being six days, is in excess of the length of time usually allocated to matters, and that those days will now be foregone, as a result of this successful adjournment application.
In terms of the fourth consideration, that is, the conduct of the parties, Secondly, and most significantly, none of the parties have filed their Affidavits in preparation for the hearing, in accordance with the orders made on 22 October 2018. The husband asserts that he construed those directions as requiring the parties to exchange Affidavits by a certain date, and has offered to provide his Affidavit/s to the other parties. The wife has indicated that she is not in a position to provide her Affidavit/s to the other parties, at this time. With respect to that argument, the previous orders require the parties to file and serve their Affidavits. They do not require the parties to exchange their Affidavits. As such, each of the husband and the wife are currently in breach of those orders.
I note that the husband has applied for the matter to proceed to hearing on an undefended basis, given that the wife says she is not prepared for trial. Insofar as the Court’s consideration of that application is discretionary, the fact that the husband has not filed his Affidavit material is such that it is not appropriate in today’s proceedings to make such an order. That is not to say, however, that the conduct of any of the parties going forward may not be such that the Court would consider such an application in the future.
The Second Respondent, I appreciate, is in a somewhat different situation, in that the filing directions provide for him to file and serve his Affidavit/s one week after the husband and wife had done so. Until those other Affidavits are filed and served upon him, the time does not run against the Second Respondent to do the same.;
In summary and conclusion, while detriment that will be caused to the other parties, in particular, to the Second Respondent, and to the other litigants in the Court, as a result of the matter being adjourned, are live considerations, I determine the following matters to be countervailing to that position.
The matter is currently set down for final hearing for six days, commencing next week, in circumstances where the parties do not, as yet, have the real estate valuations or the single expert report in respect of the parenting matters and have not filed or served their Affidavit material. As stated, the parties have not had the opportunity to consider the expert reports, in terms of the procedures set out in the Rules, or the evidence of the other parties.
As such, the Court has significant reservations that this case can be adequately presented by any party at the final hearing. This includes the Court being in a position to properly inquire into matters that impact upon the best interests of the children who will be affected by final orders. It is therefore necessary to grant the adjournment sought by the wife.

I certify that the preceding thirty (30) paragraphs are a true copy of the ex tempore judgment of the Honourable Justice McClelland delivered on 6 November 2018.

Associate:

Date: 23 November 2018