Hall and Hall (No 3)

[2015] FamCA 397

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO 3) [2015] FamCA 397

FAMILY LAW – PROPERTY – Interim Orders – Compliance - wife seeks matter proceed on undefended basis if husband fails to comply with procedural orders – husband’s solicitors acknowledge non-compliance and seek an extension of time to file documents – length of proposed adjournment - orders made by consent to adjourn proceedings to enable compliance.

APPLICANT: Ms Hall

RESPONDENT: Mr Hall

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 15 May 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kari

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lindsay

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler

Orders

1. Paragraphs 1 to 4 of the Response to an Application in a Case of the husband filed 4 May 2015 (or any Amended Response thereto filed and served no later than 5.00 pm on 19 May 2015) are listed for argument on Wednesday 8 July 2015 at 9.00 am before the Honourable Justice Dawe.

2. On or before 5 June 2015 the wife file and serve a Reply and any supporting Affidavit.

3. Without prejudice to the wife’s application for costs arising from her Application in a Case filed 7 April 2015:

   (a)the husband is granted leave nunc pro tunc to file the following documents:

   (i)Affidavit of Mr KK filed 20 February 2015;

   (ii)Affidavit of Mr KK filed 1 April 2015;

   (iii)Affidavit of the husband filed 23 April 2015;

   (iv)Financial Statement of the husband filed 27 April 2015;

   (b)the time for compliance by the husband with paragraph 12 of the Order made by the Honourable Justice Dawe on 10 February 2015 be extended to 30 June 2015.

4. The wife is at liberty to provide the letters of appointment to each of the single experts referred to in paragraphs 8 and 9 of the Orders made by the Honourable Justice Dawe on 10 February 2015 (being those letters annexed to the Affidavit of Mr R filed 13 May 2015 at annexure “ALB2”).

5. The wife’s Application in a Case filed 7 April 2015 is adjourned to the hearing referred to in paragraph 1 herein.

6. Any further affidavit material upon which either party seeks to rely to be filed and served by 4.00 pm on Friday 3 July 2015.

7. The wife’s costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hall & Hall (No 3) 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 3671 of 2013

Ms Hall

Applicant

And

Mr Hall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has been before the Court on previous occasions, orders have been made by way of interim orders and further orders have been made in an effort by the Court to have the matter prepared for final determination.  The specific orders to which I refer are those of 10 February 2015 and 2 April 2015.  One of the orders previously made by the Court in relation to spouse maintenance has been the subject of appeal which has been heard but not yet determined.

2. The other issue that was the subject of appeal related to compliance with subpoenas concerning the wife’s late father’s will and estate.  The appeal has been heard and dismissed.  I understand that the subpoenaed documents have been provided.  The Court only knows that because a copy of what purports to be the last will of the wife’s late father is now annexed to the husband’s recent affidavit.

3. What is before the Court today is an Application in a Case brought by the wife in relation to the non-compliance by the husband with previous orders made, seeking that if the husband did not comply with them then the matter proceed on an undefended basis. 

4. In response to that application, the husband has sought orders for the stay of the maintenance order made on 10 December 2013.  He is seeking a stay from 2 April 2015.  He is also seeking orders in relation to water charges, restraining the enforcement of any arrears of spouse maintenance and an order that the wife execute an offer to, quote, “The wife do forthwith execute the offer to purchase [I Street, Suburb F].” 

5. The amended application now seeks leave by the husband nunc pro tunc to file documents out of time and extending the time for the husband’s compliance with another part of the orders made on 10 February 2015. 

6. I have now before me a proposed order sought by the wife seeking, in effect, the adjournment of those matters to give the wife an opportunity to file a reply and agreeing to the extension of time nunc pro tunc without prejudice to the wife’s position as to costs.  There are then orders sought in relation to the letters being sent to the experts as set out in the correspondence to which the husband’s solicitors have not responded, and that the matter be adjourned. 

7. The husband is not opposing the order which grants him leave to have the documents accepted notwithstanding that they are out of time and extending time for him to comply with the orders of the Court. 

8. What is the main subject of dispute today is how long the adjournment should be and whether it should be after 30 June 2015 or earlier.  The significant issue in that regard is the open offer to purchase annexed to the husband’s affidavit in relation to the I Street property.

9. It appears that there has been a failure to comply with the orders that the Court made in April 2015 which provided for the wife to nominate three agents to deal with the sale of the I Street, Suburb F property.  (I refer to paragraphs 7 and 8 of my orders of 2 April 2015.)  Nor is there anything in the correspondence indicating that the husband has taken any steps to remind the wife to comply with the orders of the Court which provided for that to be done within 28 days.

10. I take into account in these proceedings that both by way of affidavit of Mr KK and the comments from the bar table today by Ms Kari, that the solicitors acting for the parties are taking some responsibility for the failure to comply in a timely manner with the orders of this Court.  Notwithstanding that, however, the Court has to take into account when granting an adjournment a sensible time both from the view of the parties and for the Court.

11. I am concerned that the Court needs to have as much information as possible before it in order to make a decision about interim orders that are required to be made on the clear understanding that the interim orders must be just and equitable.  The assessment of spouse maintenance matters must also take into account not only the income of the parties but also the income earning capacity of the parties and their overall financial circumstances. 

12. In that regard, I believe that compliance with all of the orders that have already been made should be undertaken before the Court will be in a position to determine all of the necessary matters even on this interim basis. 

13. I therefore propose to adjourn the matter to a date after 30 June 2015.  I am told that I have a date available for a 9.15 am matter on 8 July 2015.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 May 2015.

Associate: 

Date:  26 May 2015