Hayes and Johns and Anor

[2011] FamCA 146

FAMILY COURT OF AUSTRALIA

HAYES & JOHNS AND ANOR [2011] FamCA 146

FAMILY LAW – PRACTICE AND PROCEDURE – Service - Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Hayes

RESPONDENT: Mr Johns

2^ND RESPONDENT: The Trustee In Bankruptcy

FILE NUMBER: MLC 6187 of 2010

DATE DELIVERED: 9 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hams

SOLICITOR FOR THE APPLICANT: Glezer Lanteri & Associates

COUNSEL FOR THE 2^ND RESPONDENT: Mr Evans

SOLICITOR FOR THE 2^ND

RESPONDENT:

Piper Alderman

Orders

1. That all outstanding applications are adjourned to 5 May 2011 at 2.00pm as an undefended hearing before me.

2. That the wife’s solicitor serve upon the husband at the address shown in the recently filed Notice of Ceasing to Act by his former solicitors, details of the making of these orders and a copy of the reasons delivered this day. 

3. That the wife file and serve by 4.00pm on 20 April 2011 any affidavit and financial statement on which she intends to rely.

4. That there be liberty to the Trustee in Bankruptcy of the wife’s estate to file and serve a noticing of ceasing to be involved further in the proceedings at any time without further application being so filed.

5. That the wife’s costs of this day are reserved to the trial date.

6. That the reasons this day are to be transcribed and placed on the file.

IT IS NOTED that publication of this judgment under the pseudonym Hayes & Johns and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6187 of 2010

Ms Hayes

Applicant

And

Mr Johns

Respondent

And

The Trustee In Bankruptcy
2^nd Respondent

REASONS FOR JUDGMENT

1. This matter came to me on 15 December 2010, at which date the husband did not appear but was represented by his solicitor who told me that he was unwell and had not filed material.  There was some considerable debate about why that had not occurred.  On 15 December, I adjourned the matter to this morning for mention.  On 15 December also, the wife was agitating for the matter to be listed for final hearing and that was opposed by the husband.  One of the orders I made on 15 December 2010 was that the husband file and serve an affidavit by 4 pm on 24 December 2010 as to the reasons why he had not complied with orders and to why his case could not properly be presented to the Court.  There was again considerable discussion that day about whether that affidavit could be filed, having regard to the asserted incapacity of the husband at that time.

2. My recollection is that the husband’s solicitor said that it could be done.  It was not a question of any undertaking but certainly my recollection was that there was an assurance.  It has been brought to my attention that on 24 December, the husband’s solicitor indicated that the husband was undergoing an operation and was therefore not able to comply with the order I made on 15 December and requested an extension of time.  The Court record seems to indicate that my associate advised the solicitor that it was inappropriate for an extension to be given without consensus from the other parties and I note that my associate was then advised by the other parties that they did not agree with the extension of time.  Nothing seems to have happened until yesterday, 8 February, when a notice of ceasing to act was filed dated 31 January 2011. 

3. The solicitor for the wife indicated to me this morning that she has had that for a little longer than the Court seems to have had it, but it notes that the husband was sent a notice of address for service and that he was advised of the hearing.  He has been called at 9.30 am and there has been no appearance.  Having regard to the fact that the wife was agitating on 15 December for the matter to be sat down for final hearing and the husband was given the indulgence of getting his house in order on that day, I see no reason why, he having not carried out any of the things that were asserted were to be done, this matter ought not to proceed to a final hearing.  There is a limit to which the Court should allow a party to procrastinate and delay the other party’s right to the fruits of a reasonably long marriage.  The problem in this case is compounded by the fact that there is a trustee in bankruptcy as a party because the wife is an undischarged bankrupt.

4. I have heard this morning from the trustee to indicate that in the event that things go the way they are anticipated, the bankruptcy would be discharged because there is sufficient equity in other assets.  That then leaves the question of the husband apparently asserting at some stage in the life of this litigation that there are creditors to whom he is indebted.  It is asserted that the husband has not provided discovery so the wife is not aware of who those creditors are.  Obviously, therefore, the wife is not in the position to serve notice upon potential creditors and to enable them to have their rights to be heard pursuant to s 79(10) of the Act.  Insofar as the husband has not fulfilled obligations under orders, shown a reluctance to be involved, has not provided discovery and the creditors may languish, there is little the Court can do about all of those things. 

5. I see no reason in this case why the wife ought not have the opportunity to proceed on an undefended basis.  If the husband finds that unpalatable then he can make the appropriate application.  He will have considerable difficulty, having regard to the fact that he has not fulfilled the obligations at paragraph 2 of the orders I made on 15 December 2010.  Because of the fact that he has inconvenienced the parties otherwise today, I propose to reserve the wife’s costs of today to the trial.  The trustee in bankruptcy has not sought orders for costs arising out of the proceedings, presumably because those costs will be visited upon the wife in her bankruptcy estate. 

6. In those circumstances, it is appropriate to set the matter down.  I shall do so in the orders I make, setting it for May as an undefended final hearing.  I propose to make orders for the filing of material and for the trustee to have liberty to withdraw from the proceedings in the event that it is clear the wife is no longer in her bankrupt estate.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 February 2011.

Associate: 

Date: 4 March 2011