Juliet and Juliet and Anor

[2012] FamCA 412

FAMILY COURT OF AUSTRALIA

JULIET & JULIET AND ANOR [2012] FamCA 412

FAMILY LAW - PROPERTY – Where a five day trial was set down to commence 4 June 2012 – Where the Respondent Husband had not filed the material as directed – Where the Respondent Husband provided medical evidence of his incapacity to file material as requested – Where such medical problems have existed since at least 2003

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

APPLICANT: Ms Juliet

FIRST RESPONDENT: Mr Juliet

SECOND RESPONDENT: Y Pty Ltd

FILE NUMBER: BRF 6571 of 2002

DATE DELIVERED: 4 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 4 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Michael Sing Lawyers

Orders

1. The First Respondent attend upon Michael Sing Lawyers by midday on 5 June 2012 to do all such acts and things and sign all such documents necessary so as to remove (at his cost) the caveats registered against each of the following properties:

(a)       No … R Street, Suburb M in the State of New South Wales as more particularly described as Lot … of Section … in Deposited Plan … at Suburb M in the Local Government Area of … and County of … as contained in Folio … (“the M property”);

(b)       No … E Street, Suburb P as more particularly described as Lot … on Survey Plan … in the County of … and Parish of … as contained in on Title Reference … (“the P property”); and

(c)       Lot … G Street, Locality G in the State of New South Wales as more particularly described as Lot … in Deposited Plan … at Locality G Local Government area of … in the Parish of … and County of … (“the G property”). 

1. If the First Respondent refuses or neglects to sign or execute and return a document as required by these Orders then the Registrar of the Brisbane Registry of the Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

1. The Applicant Wife be authorised to draw down upon such loan facilities as are available to her to meet any mortgage payments and other outgoings on the properties referred to in paragraph 1 of these Orders together with the Wife’s reasonable living expenses.

1. The First Respondent Husband file and serve his affidavit of evidence in chief for the trial on or before 4.00 pm Friday 29 June 2012.

1. The Applicant Wife be at liberty to file and serve an affidavit in reply to the First Respondent Husband’s affidavit of evidence and chief on or before Wednesday 11 July 2012.

1. The First Respondent Husband account for all sale proceeds of … W Street, Suburb C in the State of Queensland as more particularly described as Lot … on Survey Plan … as contained on Title Reference … freehold land in the County of … and Parish of … (“the C property”) by 4.00 pm on Friday 29 June 2012.

1. The First Respondent Husband forthwith disclose to the Applicant Wife all source documents relating to the sale of the C property; the disbursement of the sale proceeds; and the disbursement of the $1,200,000.00 loan from the Bank of Queensland, not yet disclosed.

1. The Wife’s costs of and incidental to the hearing of 28 May 2012, together with the costs of the adjournment, be reserved to trial. 

1. The Applicant Wife have leave to issue and serve a subpoena upon Z Real Estate agency.

1. The parties are, otherwise than in compliance with these Orders, prohibited from filing any further applications or documents without first obtaining the leave of the trial judge to do so.

1. The trial of these proceedings listed to 4 June 2012 for five days be vacated and adjourned to commence at 10.00am on 16 July 2012 before Justice Kent in the Brisbane Registry of the Family Court of Australia.

1. Should the First Respondent Husband fail to comply in a material respect with any of his obligations of disclosure and to file material as specified in these Orders, then the trial of the proceedings commencing 16 July 2012 shall proceed on an undefended basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Juliet & Juliet and Anor 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: BRF 6571 of 2002

Ms Juliet

Applicant

And

Mr Juliet

First Respondent

Y Pty Ltd

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter before the Court has a lengthy and complicated history.  The parties commenced cohabitation in or about 1976, married in January 1980 and finally separated as long ago as January 2001 after an approximately 25 year relationship.  The proceedings have been on foot since in or about 2002.  When the matter came before me on 27 March 2012 there were applications in the nature of interim property Orders sought by the Respondent Husband.  At that stage I attempted to bring some finality to the longstanding litigation by making Orders on 27 March 2012 addressing the further steps that needed to be taken for the Court to consider section 79 Orders including in respect of the valuation of certain real properties both in Australia and also directions about proof of evidence of value of a property owned in the Husband’s name in the United States.

2. Those Orders of 27 March 2012 also set out specific Orders and directions for the filing of material to enable a trial of these proceedings to be held commencing today, 4 June 2012, for five days.  In the result the timetable set out in the Orders of 27 March 2012 was not strictly complied with by the Wife, albeit that her non-compliance was of no particular significance her affidavit of evidence-in-chief for the final trial being filed about a day late.  In respect of the Respondent Husband the non-compliance extended to the Husband’s failure to file an affidavit of evidence-in-chief for the trial.  That was due to be filed and served on or before 4 pm on 18 May 2012.

3. As a consequence of the Husband’s non-compliance the matter was listed for a hearing again before me on 28 May 2012. At that stage the Husband sought to advance evidence suggesting that he is a person with a disability within the meaning of the Family Law Rules 2004 (Cth) (“the Rules”), being a person who, because of a physical or mental disability;

   (1), does not understand the nature and possible consequences of the case; or

   (2) is not capable of adequately conducting or giving adequate instructions for the conduct of the case. 

4. The Husband relied upon a medical certificate, amongst other things, from Dr A, who is said to be his current treating doctor.

5. Dr A had provided in his certificate a diagnosis that the Husband was suffering from bipolar disorder and other health conditions which Dr A opined rendered the Husband unable to attend to the legal affairs relevant to these proceedings or to appear for himself at a trial of those proceedings commencing on 4 June. I was not satisfied then, nor am I satisfied now, that the Husband is a person with a disability within the meaning of those rules and as determined by well-known authorities. For that reason on 28 May 2012 I made Orders which would have enabled the Wife to test the opinion expressed by Dr A. Those Orders included an obligation on the Husband to file and serve an affidavit from Dr A addressing the particular matters set out in the Order and as well made provision for the Husband to have leave to issue and short serve a subpoena upon Dr A requiring Dr A to attend short this morning to be available to give evidence and obviously to be cross-examined by counsel for the Wife.

6. The Husband asserted before me this morning that he didn’t understand that it was for him to subpoena Dr A for this purpose. The Husband asserted before me that Dr A had informed him that it would take some two weeks for Dr A to be able to provide a report and because Dr A is employed in a particular practice Dr A may not be able to attend Court for the purpose. I made it clear to the Husband and I reiterate that subpoenas of the Court require parties receiving the subpoena to attend Court either in answer to the subpoena or to mount the objection to attendance provided for.

7. I don’t accept on its face that the Husband had any misunderstanding about this given the exchange that occurred between the Court and the Husband on 28 May which was specific about him issuing, being given leave to issue and short serve the relevant subpoena. The Husband asserts that if he has further time he will be able to provide his affidavit of evidence-in-chief. I have noted that he still has not complied with the Orders that I made on 28 May 2012 in relation to the medical evidence he was to produce to the Court and in relation to the production of Dr A to be available to give evidence.

8. He seeks an adjournment of the trial for a short period to enable him to provide his affidavit of evidence-in-chief. That being one outstanding matter on his side of the ledger pursuant to Orders I made on 27 March 2012, although the Wife has provided evidence that the Husband is still to comply with Orders and directions that were made in relation to him accounting for the sale proceeds of the settlement of the sale by the Second Respondent of certain land at C.  The Wife opposes the adjournment of the trial on the basis that she will be prejudiced by such an adjournment.  In summary, the Wife says that what the Husband raises in terms of his medical condition might be said to be “more of the same” in terms of the history of this matter so far as the Husband advancing the assertion that he is incapacitated for medical reasons.

9. In her affidavit filed 31 May 2012 the Wife advances evidence which supports the proposition that despite his asserted incapacity the Husband seems to have demonstrated a level of sophistication in terms of the filing of further documents in short periods of time which are comprehensive that would put into question that he, in fact, suffers a legal disability within the meaning of that expression, or is a person with a disability within the meaning of that expression as used in the Family Law Rules 2004 (Cth).

10. The Wife advances that her prejudice by even a short delay of the trial will comprise her inability to attend to employment until this matter is finalised, in circumstances where she deposes that she also is suffering stress requiring medication and is thus unable to attend to her employment until this matter is finalised.  It is also advanced on her behalf that she has been put to the cost and expense of being in a position to prepare and be represented at the trial of the proceedings due to occur commencing today.

11. It is submitted on behalf of the Wife that the Husband has had ample opportunity or been given ample accommodation by the court in terms of the principles of natural justice and procedural fairness.  Plainly enough, those principles don’t require that a person actually is heard by the court.  Those principles require only that a person has an opportunity and a fair opportunity to present their case and to be heard.

12. The Wife contends that if the matter is to be adjourned, there at least needs to be some Orders addressing the potential prejudice to which she refers and in the course of the discussion of that prejudice, the Husband acknowledged that he will not be in a position to contribute to the outgoings on the properties which remain, between now and any adjourned date and he acknowledged that it would be reasonable for the Wife to have the opportunity to draw down on the line of credit available to meet the outgoings on the subject properties, together with her reasonable living expenses.

13. Balancing the competing considerations, and in particular out of an abundance of caution to protect the Wife from any further proceedings that might ensue if I acceded to her request to proceed to hear and determine this matter on an undefended basis, I propose to adjourn the trial of the matter to commence on 16 July.  That’s subject to a strict timetable which I will shortly refer to.

14. These reasons will be provided to each party and for present purposes I address particular comments to the Husband. Rule 6.08 of the Family Law Rules2004 (Cth) contains a specific provision that a person with a disability may start, continue, respond to or seek to intervene in a case by a case guardian. I have already referred to the feature that whether or not the Husband is a person with a disability within the meaning of the rule is an open question in circumstances where Dr A has not been able to be tested on the contents of his certificate, and presumably is unaware of the steps the Husband has been able to undertake as referred to by the Wife in her affidavit in terms of the filing of numerous affidavits and attendance to this matter in other respects.

15. It may very well be that if Dr A was informed of those matters and was tested in cross-examination, he would not be of the view that the Husband is a person with a disability within the meaning of the Rules. That is not to say that Dr A would be convinced that the Husband does not suffer bipolar disorder or depression or other medical infirmities, but there is a difference between a person suffering those conditions and a person being a person with a disability within the meaning of the Rules. The first does not necessarily mean the second follows.

16. If this trial is adjourned to 16 July, I make it clear that this is a last and final opportunity for the Husband to comply with Orders and directions of the court for the trial to proceed.  I make it clear that one way or another this matter will be finalised commencing on 16 July. It will be finalised either if the Husband complies with further directions for the filing of material on a defended basis when the Husband will have an opportunity to be heard at the trial. If he fails to comply with the Orders and directions I make today, then he is on notice that there would be no reason for the court not to proceed to hear and determine the matter on an undefended basis, meaning that the court will make just and equitable Orders under section 79 based upon the evidence of the Wife and her evidence alone.

17. If the Husband considers himself to be a person under a disability within the meaning of the Rules, he has the opportunity between now and 16 July to seek to appear before the court by a case guardian. I reiterate, that on the current state of the evidence I am not satisfied he is a person with a disability within the meaning of the Rules. He may be.

18. It is reasonable, given that the adjournment of this trial is occasioned in circumstances where the Wife has not made any contribution whatsoever to that occurrence, that there be protections for the Wife to meet the prejudice to which she has referred. That will require the removal of caveats over the remaining real properties and as already noted in the course of argument, the Husband accepted the reality of that.

19. The Wife’s costs of and incidental to the adjournment should be reserved on the basis that ultimately, even if the Husband defends the matter, but does not demonstrate to the court that he was at the relevant time a person with a disability within the meaning of the Rules, which has occasioned the adjournment, that in and of itself will be a costs issue, irrespective of the outcome of the property proceedings.

20. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 4 June 2012.

Associate: 

Date: