Hartwell and Hartwell

[2017] FamCA 390

FAMILY COURT OF AUSTRALIA

HARTWELL & HARTWELL [2017] FamCA 390

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing- Where the husband seeks expedition of the interim and final property proceedings- where the husband’s application for expedition is granted

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Hartwell

RESPONDENT: Mr Hartwell

FILE NUMBER: MLC 9274 of 2016

DATE DELIVERED: 1 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

SOLICITOR FOR THE RESPONDENT: Lander and Rogers

Orders

1. All extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

2. On or before 4.00 pm on  3 July 2017 the wife file and serve upon the husband the following documents:

   (a)       a statement of claim setting out the precise nature  of the wife’s claim or claims against the husband including but not limited to:

   (i)the basis of such claim or claims and whether they are made pursuant to accrued jurisdiction, s 78, s 79 and/or Part VIIIAA of the Family Law Act 1975 (Cth) or otherwise;

   (ii)the precise legal basis and nature of the claim or claims and the relief at least sought in respect of each such claim or claims (such as constructive trusts, expressed trusts etc); and

   (iii)the propositions of law and fact asserted by the wife in respect of each such claim or claims and sufficient particulars to enable the husband to identify what the wife alleges against the husband including the issues to be determined in respect of each such claim; and

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 Hartwell & Hartwell 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 MELBOURNE

FILE NUMBER: MLC 9274  of 2016

Ms Hartwell

Applicant

And

Mr Hartwell

Respondent

REASONS FOR JUDGMENT

1. The applicant and the respondent were married in 1968 and separated in 1988. For convenience I will refer to the parties as the husband and wife. The husband is aged 74 years and the wife is aged 71 years.  Orders were made by this Court on 9 October 1992 (“the 1992 orders”) which finalised their financial relationship.  Those orders provided, inter alia, that the husband make available for use by the wife a small area of the property held by him for her to conduct her business and a paddock together with water for their daughter’s horse. It is common ground that since those orders were made the wife has used the land made available by the husband pursuant to those orders for her business.  

2. The substantive proceedings were commenced by the wife on 26 September 2016. The Initiating Application filed by the wife seeks that the 1992 orders be set aside and that new orders be made in their place. In the alternative, the wife seeks that paragraphs 9 and 10 of the 1992 orders be varied so as to cause the boundaries of the properties owned by the husband and/or the company he controls to be realigned such that the area utilised by the wife to conduct her business be annexed to the land owned by the wife.

3. The wife filed an Application in a Case dated 15 November 2016 in which she seeks that the husband and/or his company be restrained from doing any act that would interfere with the infrastructure associated with the business, restrained from entering upon the land which the wife conducts her business, that the husband and/or his company do all acts and things necessary to ensure any prospective purchaser of his land is on notice of the wife’s equitable claims and that any sale will not include the business and infrastructure. The wife has also lodged a caveat over the title to the husband’s property on 10 January 2017.

4. Although it is not clear from the wife’s application the basis upon which she says the orders should be varied or set aside, according to her submissions in opposition to the husband’s submissions in support of his application for priority, it is her case that if the husband breaches paragraphs 9 and 10 of the 1992 orders, which she then asserts he already has by purporting to evict her in anticipation of the sale of the land, that those orders should now be varied or set aside. She also submits that she may be relying upon s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) in support of her application which provides that orders may be set aside or varied if the Court is satisfied that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance. The wife has not particularised her claim pursuant to s 79A(1)(a) of the Act.

5. The wife also asserts in her submissions that she had acquired a proprietary interest in other parts of the land owned or controlled by the husband as a result of subsequent events and conversations with him. I note however that the wife has not sought to either amend her Initiating Application or institute any other proceedings with respect to that alleged proprietary interest. 

6. The husband denies that the wife has a proprietary interest in the land referred to in the orders. It is his case that pursuant to those orders she had a mere licence to use a small area of land. It is on that basis that the husband seeks that the wife’s Initiating Application and Application in a Case be dismissed.  

7. The husband’s former solicitors wrote to the wife on 10 May 2016 advising her of the husband’s intention to sell the property. The husband deposes that he has a number of health complaints and wishes to sell the property as the costs of maintaining and holding the land are significant and it is no longer viable for him to retain that property.

8. The husband in this case seeks an expedited hearing of the wife’s interim application and the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The husband relies upon the summary of argument dated 13 February 2017 pursuant to orders made by Registrar Lethbridge on 24 January 2017. The wife opposes the husband’s application for an expedited hearing and relies upon her summary of argument opposing the expedited interim hearing filed 7 March 2017.

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. As set out in the Rules:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

   (b)  whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

   (c)  whether the applicant is suffering financial hardship that:

   (i)  is not caused by the applicant; and

   (ii)  cannot be rectified by an interim order;

   (d)  whether the continuation of interim orders is causing the applicant or a child hardship;

   (e)  whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

   (f)  whether the case involves allegations of child sexual, or other, abuse; and

   (g)  whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Discussion

1. The husband submits that the circumstances in support of his application for an expedited interim and final hearing are as follows:

   ·    he has acted reasonably and without delay and there is no discernible prejudice to the wife;

   ·    he will be significantly disadvantaged and prejudiced if his application is not determined promptly, as he has placed his property on the market for sale and has arranged for media production at a cost of $50,000 which will be lost if he cannot sell the property promptly;

   ·    the caveat on title is detracting prospective purchasers;

   ·    he suffers from ill health and these proceedings have caused him significant distress and anxiety;

   ·    the continued delay is causing the husband financial hardship as he cannot afford to meet the expenses for the property without an income. In addition, he may need the proceeds to move into an assisted living facility and has a limited timeframe (before he turns 75) with which to cause the sale proceeds to be placed in his superannuation fund to receive the tax concessions granted to superannuation funds.

2. The wife opposes the expedition of the interim and final hearing on the following grounds:

   ·    an interim hearing will require evidence from the parties and complex submissions as to the law to determine what the effect of the 1992 orders are and whether the wife has an equitable interest;

   ·    she denies there will be a significant prejudice and disadvantage to the husband as he placed the property on the market, knowing that the 1992 orders were in place and that the wife claimed she had a proprietary interest;

   ·    she does not admit the sale proceeds from the land may ultimately be required for the husband to move into an assisted living facility or that he does not have other sources of income he can contribute to his superannuation;

   ·    she will suffer financial losses if the husband denies her rights to the land. Her business infrastructure is unique and will be very difficult to replace. Therefore, damages would not be appropriate.

3. The wife concedes and I am satisfied that the husband has acted without delay and that he made this application for expedition at the first available opportunity.

4. The wife also concedes that she would not be prejudiced by this matter being afforded priority save and except for the expense of an interim hearing of the husband’s interim application for the withdrawal of the caveat lodged on the wife’s behalf in order for him to proceed with the proposed sale of the property. However as the wife properly concedes she could be compensated by an order for costs in the event that the husband’s application was not successful.

5. In so far as the husband submits that the matter should be given priority because of losses he will incur if the auction set for March 2017 does not take place, it is the wife’s case that the husband placed the property on the market for sale in full knowledge of the terms of the 1992 orders and any cost to him is in those circumstances of his own making. In essence it is the wife’s case that the husband has created his own urgency and that there will be no prejudice to the husband if the matter is not afforded any priority. I do not accept that submission.

6. Although the date of the proposed auction has passed and whatever financial hardship the husband may have suffered is likely to be an issue in the proceedings, I am satisfied that this is a matter that should be afforded priority albeit, that in circumstances where the interim issue is inextricably linked to the substantive issues to be determined, I am proposing to list the matter for a trial management hearing rather than an interim hearing followed by a final hearing.

7. The husband who is 74 years of age has deposed to his ill health, the fact that he cannot afford to meet expenses for the property and that he is attempting to make plans for the coming years, in terms of moving into a possible assisted living facility due to his declining health. The husband has also deposed to the significant stress and anxiety the proceedings have caused him. It is reasonable to infer that the wife who is 71 years of age has similarly found the proceedings to be stressful.  

Conclusion

1. The Court must be satisfied that there are circumstances that warrant this case being given priority to the detriment of other cases. The distinguishing feature in this case that weighs in favour of expedition is that the husband is almost 75 years of age and his health is deteriorating. In my view it is unsatisfactory for the husband to remain in a state of limbo in relation to the sale of his property, when he is trying to make plans for the next stages of his life. It is difficult to understand why the wife would not want to know where she stands with respect to her business and on that basis why she would oppose the matter being heard and determined as soon as possible.

2. I am satisfied that there are circumstances in this case which warrant the matter being given priority to the detriment of other cases that are awaiting hearing and propose to make the necessary orders for the listing of the matter for a trial management hearing. However notwithstanding that the wife submits that she has explained her case in without prejudice communications and in the summary of argument filed in opposition to the husband’s application for priority and the affidavit filed contemporaneously with that summary, in my view that is not sufficient. The wife’s claim now bears little resemblance to her Initiating Application. The Court needs to know what relief the wife is seeking and the legal and factual basis upon which that relief is based. On that basis I propose to also make orders requiring the wife to file a statement of claim setting out with particularity the relief she seeks and the basis of that relief.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 June 2017.

Associate: 

Date:  1 June 2017