Hawkins and Hawkins (No 4)

[2015] FamCA 835

FAMILY COURT OF AUSTRALIA

HAWKINS & HAWKINS (NO. 4) [2015] FamCA 835

FAMILY LAW – PROPERTY – Interim – Where the wife has filed an Application in a Case seeking an adjournment of the trial – Where the final trial of the proceedings was to commence today for a period of three days – Counsel for the wife submits that he and the instructing solicitor have not had sufficient time to prepare in circumstances where the wife received orders for litigation funding approximately three weeks prior – Where it is alleged that the husband has not complied with his obligations of full and true disclosure, which has necessitated the need for the wife to issue subpoenas – Where subpoena documents are yet to be filed in the Court – Finding that the husband would not be prejudiced should the adjournment be granted – Ordered that each party file a single affidavit of evidence-in-chief and a list of documents prior to the trial – Agreed between counsel that the issues at trial will only necessitate two days – Adjournment granted.

FAMILY LAW – PROPERTY – Interim – Wife’s oral application for litigation funding – Where the application was made without notice to the husband or the Court and lacked particulars – Application should be brought on proper notice, with particulars of the wife’s expenditure of previously granted litigation funding and the proposed use of further funds – Application dismissed.

APPLICANT: Mr Hawkins

RESPONDENT: Ms Hawkins

FILE NUMBER: BRC 6561 of 2007

DATE DELIVERED: 6 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 6 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Wrightway Legal

COUNSEL FOR THE RESPONDENT: Mr Creamer

SOLICITOR FOR THE RESPONDENT: Phillips Family Law

Orders

it is ordered that:

1. The trial of these proceedings listed for three (3) days commencing on 6 October 2015 be vacated and the trial be re-listed for two (2) days commencing at 10.00 am on 18 January 2016 at the Family Court of Australia, Brisbane Registry.

2. The Wife is to file and serve a single affidavit of her evidence-in-chief to be relied upon at the trial by 4.00 pm on 30 November 2015.

3. The Husband is to file and serve a single affidavit of his evidence-in-chief to be relied upon at the trial by 4.00 pm on 7 December 2015.

4. Each party’s costs of the adjournment of the trial today be reserved.

5. Each party is to file and serve a list of documents to be relied upon at the trial by 4.00 pm on 11 January 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawkins & Hawkins (No. 4) 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 BRISBANE

FILE NUMBER:  BRC 6561 of 2007

MR HAWKINS

Applicant

And

MS HAWKINS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Today was to be the first day of three days of trial of these longstanding substantive property proceedings.  Only on Friday afternoon last did the wife file an application in a case and a supporting affidavit seeking an adjournment of the trial.  Essentially, the reasons one can identify from her affidavit for seeking such an adjournment are, firstly, in relation to her capacity to prepare her affidavit of evidence-in-chief or to address the issues in the substantive property proceedings and, secondly, relating to issues she agitates concerning disclosure or alleged lack of disclosure on the part of the husband.

2. Initially, the application was opposed by the husband essentially in circumstances where it was contended that the trial listed for today has long been set down, and that both parties have had notice of the trial for a long period and, secondly, by reference to an affidavit of disclosure filed by the husband in September, it is said that the specific complaints about disclosure concerning the Royal Bank of Canada and Amex are essentially illusory complaints by the wife.

3. In the result, as a result of exchanges between the bench and bar table, the husband did not ultimately oppose the trial being adjourned to the week commencing 18 January 2016 and indeed, both sides agree it seems, that the trial will not require three days of hearing, but rather one or two days.  In adjournment applications the fundamental consideration of the Court is the need to do justice between both parties.

4. The exchanges to which I have referred relate to my observations concerning the husband’s case in these proceedings where he seeks substantive property orders, which would see him retaining essentially the whole of the property of any substance of either party which remains. 

5. It can fairly be observed of this case that the underlying issues are not easily described as simple or straight forward in circumstances where the parties separated as long ago as 2007 and for a period of about five years, they were involved in Supreme Court proceedings initiated by the wife, which came at a significant cost financially and otherwise to both parties.

6. There is a significant underlying issue in these proceedings related to the costs that were thereby incurred and features such as the time value of money in circumstances where the funding of that litigation was sourced to loan funds from the bank secured on the former matrimonial home.  The former matrimonial home has recently been sold and the settlement of that sale is to occur shortly and is expected to result in equity of only about $50,000 after payment for repairs that were effected.

7. In the result, it is clear that it can be said that the application is made late in terms of assessing delay, but in circumstances where the Court must have regard to potential prejudice to each party, the underlying feature of the case in terms of the substantive property orders sought by the husband tend in favour of the wife having every opportunity, or having no complaint that she was not afforded every opportunity, to present a case to resist those orders.  I do not in making that observation express any view, preliminary or otherwise, as to the merits of the husband’s application, but the fact is that he does seek orders which would see him retain essentially all of the matrimonial assets other than some part of the wife’s superannuation.  The case can be heard in January 2016, which is a relatively short period away and there is no specific prejudice to the husband identified. 

8. As between the parties, there is agreement again following exchanges between the bench and the bar table, that each party ought provide one consolidated affidavit of evidence-in-chief for the purpose of the trial

9. I should mention in passing, that an oral application was advanced on behalf of the wife to receive litigation funding which crystallised into an application that she receive one half, or $25,000, of the $50,000 expected to be recovered from the sale of the former matrimonial home.  Such an application, in my view, should properly be brought on proper notice, particularly to the husband so that he can answer that application, and moreover, it needs to be based on better detail than was provided from the bar table in terms of the wife’s utilisation of the litigation funding that was recently provided. 

10. I have previously expressed reasons for judgment in this matter, which I will not repeat, in terms of the relevant considerations when the Court is considering issues of litigation funding, whether by way of interim property orders or by way of the power to make an order as to costs. 

11. The fundamental consideration in this case is that, until there is a trial, the Court is not able to determine the merits of the husband’s application that he ought retain as appropriate and just and equitable final property orders essentially, all of the property which remains and, obviously, that would be eroded potentially if the wife was afforded further litigation funding, but that is a matter that can be heard and determined on an application properly brought. 

12. I have made the orders referred to in relation to the filing of material and the reservation of costs.  In addition to the orders I have just made I will order that each party file and serve within seven days of the trial date the list of documents they intend to rely upon at the trial.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 6 October 2015.

Associate: 

Date:  8 October 2015