KAREFA and KAREFA

[2024] FCWA 264

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: KAREFA and KAREFA [2024] FCWA 264

CORAM: O'BRIEN J

HEARD: 18 NOVEMBER 2024

DELIVERED : Ex tempore

FILE NO/S: 5772 of 2023

BETWEEN: MS KAREFA

Applicant

AND

MR KAREFA

Respondent

Catchwords:

PRACTICE & PROCEDURE - Application for leave to proceed undefended when trial documents were filed late by both parties - Turns on its own facts

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Moller
Respondent	:	Mr Griffin

Solicitors:

Applicant	:	O'Sullivan Davies Lawyers
Respondent	:	Peter J Griffin & Co

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Karefa and Karefa has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1The financial proceedings between [Ms Karefa] ("the wife") and [Mr Karefa] ("the husband") were listed to a Readiness Hearing today in order to progress them to trial. The parties, who have both been represented at all relevant times, were notified of the Readiness Hearing listing by letter dated 22 March 2024.

2Accordingly, the parties had ample time to comply with various procedural orders pivoting around today's hearing. The consent orders made by a magistrate on 18 March 2024 required:

(a)Each party to file and serve a minute of proposed final orders they would seek at trial by 23 September 2024. The wife filed her minute within time. The husband filed his minute on 14 November 2024.

(b)Each party to file and serve their affidavits (including witness affidavits) and an up-to-date Form 13 Financial Statement by 18 October 2024. The wife filed her documents on 28 October 2024,[1] and seeks the required extension of time to reflect that. The husband filed his documents on 14 November 2024.

(c)Each party to file and serve an undertaking as to disclosure annexing their list of disclosed documents by 18 October 2024. Again, the wife filed her undertaking on 28 October 2024 and seeks the required extension of time to reflect that. The husband filed his undertaking on 14 November 2024.

[1] The wife's documents are said by her to have been uploaded on Friday 25 October 2024. The court portal notes the documents as having been lodged at 12:47 pm on Monday 28 October 2024. Nothing turns on that discrepancy.

3The wife says that the delay in filing her documents was largely occasioned by the tardiness of the husband's response to her persistent and detailed requests for specific disclosure, which culminated in the provision to her lawyers of 236 pages of uncollated disclosure late on the afternoon of 11 October 2024.

4I am not able to discern how the late provision of the husband's disclosure documents can be said to explain the late filing of the wife's own undertaking as to disclosure, or for that matter her Form 13 Financial Statement. I acknowledge the possibility that it may properly have affected her capacity to complete her trial affidavit.

5In his affidavit lodged on 14 November 2024 the husband explained his delay by saying that he received a bundle of disclosure documents of some 1,102 pages from the wife's lawyer on 25 October 2024. He says further that on 14 June 2024 he signed an agreement to sell a particular property in [City A], that settlement was due on 1 October 2024 but was delayed, and that "by waiting for the settlement of the sale to be completed has effected [his] preparation for trial of the case" (sic). Again, there appears to be no logical connection between the late provision of disclosure by the wife and the delay by the husband in providing his own disclosure. As with the wife, I acknowledge the possibility that the late provision of disclosure might have affected the husband's capacity to complete his trial affidavit.

6On the materials presently available, neither explanation is satisfactory. In making that observation, I acknowledge that I am not presently able to discern just how much of the content of either party's trial affidavit material was informed by the late provided disclosure to which each refer.

7Court orders are just that. They are not mere invitations to comply if the parties to whom they are directed, or their lawyers, do not consider themselves too busy to do so.

8The main purpose of the Family Court Rules 2021 (WA) ("the Rules") is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case. The parties and their lawyers have a clear responsibility to promote and achieve the main purpose, as set out in r 8. That responsibility includes (relevantly for today's purposes) complying with the duty of disclosure, ensuring readiness for court events, complying with time limits, and complying with the rules and any orders.

9None of those are new or revolutionary concepts. Nevertheless, regrettably compliance with those responsibilities by parties and their lawyers remains problematic. The Court's statistics indicate that, of the matters which proceed to a first readiness hearing because they have not been finalised by an agreed settlement, only 52 per cent are actually ready. That causes additional delay and expense for the individual parties in the particular case, and contributes to the inability of the Court to reach and complete other proceedings.

10The Court has an obligation to apply the Rules in a way which promotes the main purpose. That includes setting realistic timetables, and monitoring and controlling the progress of each case.[2] The Court also has an overarching obligation to afford all parties procedural fairness; it must be remembered, though, that procedural fairness requires that parties be given proper opportunity to prosecute and present their cases – not that they be given indulgences which extend beyond that proper opportunity.

[2] Rule 6(e).

11Against that background, the matter requiring determination is the Form 2 interlocutory application of the wife filed on 28 October 2024 in which she seeks the extension of time to file her own documents referred to above, an order granting her leave to proceed on an undefended basis with her substantive application (which, by implication, would involve the dismissal of the husband's substantive response), and costs fixed in the sum of $2,000. In support of that application the wife relied on an affidavit filed contemporaneously with it. That affidavit set out the matters briefly summarised above, but also set out what the wife would assert to be the husband's consistent failure to meet his duty of disclosure over the course of the proceedings, and otherwise to comply with orders.

12The husband filed a response to that application on 14 November 2024. Sensibly, he consented to the order sought by the wife extending the time for filing of her documents to the date on which they were filed. He otherwise sought that the time for him to file his own trial documents be extended, without specifying a date. He did not specifically respond to the wife's application for costs.

13The wife filed written submissions on 15 November 2024, after the husband had filed his trial documents, confirming that notwithstanding that filing she still pressed for the orders sought in her Form 2 Application. While her evidence, if accepted in due course, would explain her frustration it was nevertheless surprising that the application was pursued in the present circumstances.

14While the wife makes the obvious point that the husband says he was delayed by the provision of disclosure documents after the date on which his trial affidavit was due in any event, the observations already made still stand. On the basis of the evidence available to me, I am not able to understand the logic of the submission where on the one hand the wife says the preparation of her trial affidavit had to await the provision of the husband's disclosure, but asserts that it is unreasonable for the husband to maintain the mirror proposition. I acknowledge that it may well be that at trial the logic in that argument will become clear, when the evidence is able to be tested.

Disposition

15As both parties were in default of the relevant procedural orders, but both have now belatedly complied, the proposition that the wife should be able to proceed undefended simply because her default was less than the husband's obviously cannot be sustained. Had the wife herself strictly complied with the relevant orders, the argument may have had more attraction. That said, I acknowledge that that is not the only default on the part of the husband about which the wife properly complains.

16Nothing in the written submissions filed on behalf of the wife changes that. While some of the matters raised about the husband's conduct of the proceedings to date and non-compliance with both procedural and substantive orders, if borne out in due course, may well inform the making of a costs order against the husband, they cannot justify the orders sought by the wife in her Form 2 application.

17The wife also makes submissions directed to the proposition that parties should not, by their inactivity or non-compliance, be permitted to delay the progress of the case towards trial to the detriment of the other party; while I could not agree more, that is not what has happened in this case. The readiness hearing has proceeded to completion as scheduled. The parties will find their case in exactly the same Callover as would have been the case had they both strictly complied with the procedural orders, as they should have.

18Notwithstanding the matters just set out, the wife perhaps understandably pressed for an order for costs.

19As already noted, both parties were in default. In that sense, both the wife's application and the husband's response were made necessary by their own failure to comply with previous orders. Both are critical of the conduct of the proceedings by the other, particularly in relation to discovery, inspection and production of documents. While on their face the wife's complaints in that regard may well in due course be shown to have more merit than the husband's, no clear conclusion in that regard can be reached until the evidence is tested.

20The appropriate course, therefore, is to reserve both parties' costs.

Orders

21There will be the following orders:

1.The time within which the Applicant wife, MS KAREFA was to comply with paragraph 11 of the minute comprising the orders made on 18 March 2024 is extended to 4.00 pm on 28 October 2024.

2.The time within which the Respondent husband, MR KAREFA is to comply with paragraph 11 of the minute comprising the orders made on 18 March 2024 is extended to 4.00 pm on 14 November 2024.

3.The costs of both parties are reserved.

4.The Form 2 Application of the wife filed on 28 October 2024, and the husband's response to that application, are otherwise dismissed.

5.The proceedings are included in the Callover at 9.00am on 21 March 2025 for the allocation of a trial date, with an estimated hearing time of three days and noting that the matter is not suitable for determination by a Magistrate.

6.The parties must each file Callover certificates by no later than 4.00 pm on 14 March 2025.

7.Upon the allocation of a trial date, the file is to be referred in Chambers to the Judge to whom the trial is allocated, for consideration to be given to the making of any further procedural orders in chambers to ensure the readiness of the matter for trial.

These reasons are the reasons for decision delivered [in] November 2024, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

[IN] NOVEMBER 2024