EAVES & EAVES

[2020] FamCA 608

FAMILY COURT OF AUSTRALIA

EAVES & EAVES [2020] FamCA 608

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the matter is listed for final hearing – Where the respondent has a preference that the matter proceed in Court as opposed to via Microsoft Teams – Where there would be a significant adjournment of time to accommodate the matter in Court – Where such an adjournment is opposed by the respondent – Where the matter could appropriately be dealt with by Microsoft Teams.

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Where the respondent seeks leave to file further Affidavits on a limited topic – Where the application is not opposed.

FAMILY LAW – PRACTICE AND PROCEDURE – Case Outlines - Where the Court and parties are to have an understanding of the extent and nature of the applicant’s case – Further trial directions made. 

APPLICANT: Ms Eaves

RESPONDENT: Mr Eaves

FILE NUMBER: ADC 848 of 2019

DATE DELIVERED: 30 June 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 30 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Burrell

SOLICITOR FOR THE APPLICANT: David Burrell & Co

COUNSEL FOR THE RESPONDENT: Mr Bullock

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

UPON NOTING that the matter remains listed for final hearing to commence on 27 July 2020

Orders

1. That the matter be listed for hearing either in Court or by Microsoft Teams platform as may be advised by a joint letter to the Chambers of Justice Berman.

2. That leave is given for the respondent to file further affidavits on or before 4 pm on 10 July 2020 limited to the topic of any change in the date of the marriage of the parties.

3. That the practitioners for the parties file and serve electronically to ... by 4 pm on 22 July 2020 the following:

   (a)a concise set of orders to be sought if different from those already filed;

   (b)a list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;

   (c)a list of objections to evidence upon which rulings are required; and

   (d)a summary of argument, including contentions as to law and fact to be relied upon by the applicant in relation to the issues in dispute.

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  Eaves & Eaves 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 ADELAIDE

FILE NUMBER:  ADC 848 of 2019

Ms Eaves

Applicant

And

Mr Eaves

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 27 May 2020, this matter was listed for a first day hearing and orders were made that all applications for final orders were adjourned to a hearing before me on 27 July 2020 at 10 am as a four to five day matter.  Today is a compliance hearing.  There were a number of issues that were raised on the last occasion which required further consideration.

2. The first issue is the form in which proceedings are to be dealt with.  The respondent has briefed Mr Bartfeld of queen’s counsel in the proceedings, however Mr Bartfeld QC is resident in Victoria.  At this stage it is likely that Mr Bartfeld QC will not be able to physically travel from Victoria to South Australia.

3. This raises how the matter is to be heard.  Mr Bullock of counsel, who appears today for the respondent, indicated that there was a preference as far as his client was concerned for the proceedings to be heard in Court rather than by Microsoft Teams which, if granted, would necessitate the week of 27 July 2020 being vacated and another date being listed.

4. It is not as simple as moving a matter from one week to the next or one month to the next.  My diary is listed out to November and the earliest that I could accommodate an adjournment of the proceedings would have been either late November or early December.  Such action, in any event, was opposed by the applicant. In circumstances where the Court is able to offer the parties the opportunity for a matter to be heard by Microsoft Teams, without there being some reason why the proper administration of justice could not genuinely be dealt with by a remote platform hearing, I consider it would not be appropriate to adjourn the trial.

5. In any event, whilst I may have dates available to me in late November or early December, there are other matters which have not yet gained a place for hearing, which would or should take priority over a matter such as this that would be adjourned because of a preference that it be heard in Court.  Where it is now possible to do so, it is also the Court’s preference that a hearing should be heard in Court but that is not the position that we are in at the moment.  I am of the view that there is nothing unique about the case currently under consideration that would suggest that it should not be heard by remote hearing.

6. If during the course of the proceedings there are matters that are insurmountable in terms of the technology the Court will do the best that it can to make sure that if the matter has to be vacated or cannot proceed further, then it is given the very next convenient date that is suitable to all counsel.

7. At this stage, I consider the matter should proceed by remote hearing and that will mean that the entirety of the proceedings will occur in that way, that is, there will not be a hybrid arrangement.  Both counsel indicate that it is their preference that it is one or the other, and I think that there is good sense in that consensus approach.

8. For those reasons I do not propose to interfere with the trial date.  To the extent that Mr Bullock makes an application for the trial to be adjourned, the application is dismissed, although to be fair to Mr Bullock I did not really understand that his position was put as highly as a formal oral application.

9. Given the matter is to proceed as listed, Mr Bullock raises some further issues. The first is that it would be reasonable for there to be a brief outline of argument prepared on behalf of the applicant, setting out the issues that are to be raised, noting that the further amended Initiating Application filed on 25 May 2020 referred to sections 90K(1)(b) and/or 90K(1)(e) of the Family Law Act 1975 (Cth). There are a number of equitable subheadings within those two sections, and it is reasonable that the Court and all parties have an understanding as to the nature and extent of the case that is to be run on behalf of the applicant and required to be met by the respondent.

10. I will make my usual order in respect of the practitioners for the parties filing a case outline document.  I will expand the bullet point summary of argument in relation to the issues in dispute to include a contention as to fact and law relied upon by the applicant.

11. The third matter that was raised was an application for leave for the respondent to file either one, two or three affidavits from different witnesses, but limited to the topic of a change in the date of marriage.  This is not an issue that had been previously raised with the applicant’s solicitor.  The application is not opposed by Mr Burrell but he seeks the courtesy of some forewarning, by way of correspondence, as to what the issue is or what the evidence that is ultimately going to be led will be.  That seems reasonable.  I do not propose to make an order about that in the sense that Mr Bullock has indicated a ready preparedness to have correspondence forwarded to Mr Burrell, giving him forewarning as to the nature of those issues.  I am satisfied from Mr Bullock’s submissions that the issues to be raised are of very narrow compass.

12. A fourth issue was raised as to whether the Court would entertain an application for dissolution of marriage.  At this stage, there is no reason why I should not entertain the application, providing it is properly constituted.  Mr Burrell, at this stage, has not seen the application.  Assuming no issues arise, there is no reason why the Court would not hear the application but there may be issues with it. 

13. The final matter foreshadows an application for the sale of a property at Suburb B.  The basis upon which the application is foreshadowed is that a fund of money which supports that property, in terms of its outgoings, is rapidly diminishing or exhausted.  There may be an application for that property to be sold.  Whilst Mr Burrell agrees that the fund is either exhausted or rapidly diminishing, he considers that the trial should remain as currently listed.

14. If an application is brought, I will deal with it in the most appropriate manner.

I certify that the preceding fifteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 30 June 2020.

Associate: 

Date:  24 July 2020