Harboard and Hatley

[2007] FamCA 1532

FAMILY COURT OF AUSTRALIA

HARBOARD & HATLEY [2007] FamCA 1532

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

Re F: Guidelines for Litigants in Person (2001) FLC 93-072; 27 Fam LR 517

APPLICANT: Mr Harboard

RESPONDENT: Ms Hatley

FILE NUMBER: MLF 1286 of 2006

DATE DELIVERED: 19 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Cronin

HEARING DATE: 17 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITOR FOR THE APPLICANT: O’Farrell Robertson McMahon

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the further hearing of the proceedings be adjourned to a date to be fixed.

AND THE COURT NOTES that the proceedings are part heard and had to be adjourned as a result of the illness of the wife.

IT IS NOTED that publication of this judgment under the pseudonym Harboard & Hatley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1286 of 2006

MR HARBOARD

Applicant Husband

And

MS HATLEY

Respondent Wife

REASONS FOR JUDGMENT

1. These are proceedings between Mr Harboard and Ms Hatley.

2. The proceedings relate to the division of property between the husband and the wife.

3. The parties had a modestly short relationship between January 2002 and December 2005.  The husband issued proceedings seeking a division of property in early 2006.  The proceedings have therefore being in this Court’s system for over 18 months.

4. The husband now lives in New Zealand and I am told that as a consequence of that, he made an application that this trial be given some priority.  He flew to Australia to commence the hearing today.  When the hearing began, the wife told me that she was not represented by a legal practitioner and she wanted the case stood down so that she could obtain the assistance of the duty solicitor.  When that had occurred, the wife told me that she had been advised to make an application for an adjournment of the proceedings.

5. The application to the adjournment was opposed by Mr Testart who appeared on behalf of the husband.

6. The wife told me that she wanted an adjournment for three reasons.  The first was that the husband had not complied with orders relating to discovering.  The second reason was that she was unwell and therefore not really able to conduct the proceedings herself.  The third reason was that she had approached a rural Victorian solicitor to act for her and that person had indicated that with the busy season of Christmas, he would not be able to assist her until after the holiday break.

7. I enquired about the issue of non-compliance.  There are several orders in this case involving discovery issues.  In an order made by Registrar Williams, it was made clear that the provisions of rule 13.20 were applied and each party was to provide the other with a request for documents to be made available for inspection.  It transpires that the document provided by the wife was a “cut and paste” of a document that had been in circulation in the court proceedings some time ago.  She alleged that the husband had still not complied with the order of the Registrar because he had not provided the information sought in the request.

8. When I enquired what particular non-compliance had occurred, the wife said to me that she had not received documents such as the contract of the sale of the one B property in the name of the husband and a whole series of documents relating to assets which she has often alleged the husband has outside Australia.  She pointed to shares in the United States and other investments.

9. Mr Testart told me that things would not get any better than what they had from the point of view of his client because his client had provided all the documents in his possession, power or control and that there was nothing further to provide.

10. The wife told me that she could point to a payment by her into a bank account of the husband during the relationship which he had sent offshore to New Zealand.  She said that he had not explained why that had occurred.

11. This case had been before the court on issues of discovery for some time and it was quite clear on looking at all of the documents, and also the orders of the court, that the husband has consistently maintained that he has no further documents.  Mr Testart pointed out that if that was untrue and could be shown to be so by cross examination by the wife, then the husband's credibility would be severely dented and I would be in a position to determine the case on the best available information that I had.

12. The wife maintained that she was entitled to a whole series of documents, including bank statements and Mr Testart said that many of these documents had been provided.  When I started to go through some of these, the wife conceded that she had in fact received some of them.

13. On the basis that Mr Testart said that things were not going to get any better and that there were no further documents to be obtained, it seemed pointless for the matter to be adjourned.

14. The second issue related to the question of the health of the wife.  She has filed an affidavit by Dr L.  Mr Testart told me that the evidence of Dr L is to be challenged.  However, when I enquired further of the wife as to what her concern was, she said that it was the fact that she could not undertake the task normally undertaken by a legal practitioner of cross examination that was really worrying her.  I indicated to her that I would explain the various issues set out in Re F: Guidelines for Litigants in Person (2001) FLC 93-072; 27 Fam LR 517.

15. I explained the guidelines to the wife and Mr Testart indicated that I had done so, quite properly.

16. The third issue related to the question of the availability of another lawyer to act for the wife.  It is to be noted that she has not been legally represented since October 2007.  Her explanation to me in relation to that was that her lawyer had terminated her services.  It is also to be noted that there have been a number of previous legal practitioners acting for the wife.  She has had ample legal advice.

17. I indicated to the wife that if the matter was to be adjourned, the earliest I could possibly resume the hearing or have it listed before another judge was well into 2008.  That severely disadvantages the husband having regard to the fact that he is the applicant and the wife has the preponderance of the assets.

18. Another issue of some concern to me was the fact that the husband had come to Australia from New Zealand at considerable expense as well as incurred legal fees only to face the prospect of going all the way back again and paying not only his expenses but also his legal fees for the day.  Accordingly, I indicated to the wife that in so far as there was to be any adjournment, I would be almost certainly ordering her to pay the costs thrown away for the day. Her response was that she had no money to pay.

19. That leads me to be issue of what the case is really all about.  This is a property division in which on a conservative view, there is approximately $900,000 worth of assets.  It is a short relationship and although the application of the husband, as filed in August 2007 was what I can only describe as an ambit claim, his counsel indicated to me that he was now seeking one third of the pool. On any view, the wife opposes that.

20. An application for an adjournment must be looked at from the perspective of both parties.  The husband has waited a long time for these proceedings and hence has every right to complain about the prospect of further delay.  The wife has had 18 months with various lawyers acting for her to resolve many of the issues in dispute.  As it transpired, she had boxes of documents and what appeared to be carefully prepared notes in computer form about the movements of the husband and financial issues.

21. In my view, it would not be fair to the husband then to simply adjourn the proceedings to enable the wife to get her house in order by arranging a lawyer.  Notwithstanding her assurance that she could have a lawyer acting for her, because of the fact that she has had a number of lawyers acting for her in the past, I had little confidence that she would be able to give any guarantee on this occasion.  In any event, it seemed to me that the issue about which she was concerned, namely the cross-examination of the husband, was adequately covered by the advice that I would be required to give her in any event.

22. Balancing the interests of justice also requires me to take into account the resources of the Court.  This case has been before the Court on interlocutory applications on a number of occasions, in particular in relation to the discovery issues.  No one had suggested until this morning that there was any prospect of the matter not proceeding.  In my view, I must take into account the fact that the court resources are extremely limited.

23. When I balance all of those issues, I do not see any prejudice or disadvantage to the wife in the matter proceeding particularly having regard to the matter that I am obliged to give to a person who does not have the assistance of a lawyer.

24. For those reasons, I declined to agree to the application of the wife for the matter to be adjourned.

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  31 December 2007