Lagioia and Rapino

[2018] FamCA 1110

FAMILY COURT OF AUSTRALIA

LAGIOIA & RAPINO [2018] FamCA 1110

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

Norton v Locke (2013) 50 Fam LR 517

APPLICANT: Ms Lagioia

RESPONDENT: Mr Rapino

FILE NUMBER: CAC 1615 of 2008

DATE DELIVERED: 18 December 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 18 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howard

SOLICITOR FOR THE APPLICANT: Phelps Reid

COUNSEL FOR THE RESPONDENT: Mr Haddock

SOLICITOR FOR THE RESPONDENT: Adero Law

Orders

1. The application for an adjournment is dismissed.

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 Lagioia & Rapino 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 CANBERRA

FILE NUMBER: CAC 1615 of 2008

Ms Lagioia

Applicant

And

Mr Rapino

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter has been listed for a single day of hearing to deal with an application on the part of the applicant to commence proceedings out of time for property settlement. 

2. The hearing of the matter has been delayed at first because there was a dispute, which was ultimately not pressed, as to whether or not the wife's legal representatives could continue to appear for her.  The husband had asserted that there was a conflict of interest, but discontinued that application on the morning that the restraint was due to be heard in April 2018.  In October 2018 today's date, 18 December 2018, was allocated to deal with the leave question.  I am told that on that date the husband, who is the respondent, sought to defer the hearing of the matter into the new year.  He was unsuccessful in that attempt, again I am told unsuccessful in the context that the wife pressed for the matter to go ahead in December.

3. This morning at the commencement of the trial counsel for the wife has sought to adjourn the hearing of the matter.  That adjournment is founded upon an alleged failure on the part of the husband to provide adequate financial disclosure.  It is asserted for the wife that there is an obligation upon the husband to provide disclosure and that a relevant duty has been breached and that the breaches occurred in circumstances which now justify an adjournment of the proceedings.  In support of that contention the wife relied upon exhibits W1 through W4 which were variously a Financial Statement provided by the husband in February 2018, although not filed, title searches for properties in Suburb B and Suburb C and an ASIC search identifying him as the director of a number of companies. 

4. It was pointed out that what is contained in those searches appears to be inconsistent with what was contained on the Financial Statement.  In response to that assertion the husband has pointed to the affidavit that he filed in November 2017 where he says that he deals with the ownership of those various entities and he deals with the various directorships.  It is put for the wife that the alleged failure to disclose on the part of the husband is in breach of his obligations and is of such a quality as it undermines the proper hearing of the leave application today. 

5. It proved to be somewhat contentious as to whether or not the husband is subject to the disclosure obligations contained within the Rules specifically at Chapter 13 of the Rules.  I was referred to the case of Norton v Locke[1] where a similar question was dealt with in the context of Federal Circuit Court proceedings and in the context of the determination of the jurisdictional threshold factual issue of whether or not the parties were in a de facto relationship together.  In that case the learned Federal Magistrate had made orders in an apparently standard form for the provision of various forms of financial material.  The Full Court found that such a course was not open to the learned Federal Magistrate on the basis that what was at issue at that point in the proceedings was the very question of jurisdiction.  Absent an answering of the question of jurisdiction and the underlying jurisdictional facts the general provisions were not available to draw upon in financial proceedings for disclosure.  The court however there noted that even in a contest as to jurisdiction it is within the power of the court to direct the provision of information that will be directed to the question of answering that jurisdictional fact. 

   [1] Norton v Locke (2013) 50 Fam LR 517

6. There are parallels with this case.  Section 44(3) indicates that proceeding shall not be instituted except by leave of the court.  The ability to give leave is conditioned by s 44(4) and relevantly requires the proof of hardship to be caused to a party to the relevant marriage, or a child if leave were not granted.  That precondition operates in much the same manner as a necessary jurisdictional fact.  That is, there is no power in the court to permit the commencement of the proceedings without the granting of leave and there is no power to grant the leave without the establishing of the underlying fact that hardship will flow. 

7. However, such a construction does not negate the notion that there are disclosure obligations which are imposed upon the husband.  The styling of the disclosure obligations at the commencement of Chapter 13 of the Rules is for the provision of information which is relevant to the case.  Relevant to the case in this instance is relevant to the case of the establishment of hardship. 

8. The Rules do not provide, as was seen in Nortonv Locke for the provision of information which goes beyond what is relevant to that matter in issue before the court.  Accordingly, as the Rules are crafted to require the provision of only what is relevant to the case before the court, and that what is the case before the court at present is the question of leave, and what is relevant to the question of leave is the issue of hardship, and what is relevant to the issue of hardship is whether or not the wife may have a good claim. 

9. The result is that there is an obligation to provide disclosure as to financial circumstances which are relevant to that particular question.  That then includes an obligation to provide disclosure as to current financial circumstances on the part of the husband. 

10. However, on the circumstances as identified before me I am unable at this point to be satisfied that there has been a material nondisclosure on the part of the husband.  I can see that I may be incorrect about that and so address the matter on the basis that there has been a material nondisclosure by the husband.  Such a material nondisclosure may found the basis for a late adjournment application, particularly where the nondisclosure is discovered at a time proximate to the trial of the matter.  In those circumstances the force of the nondisclosure would be that a fair trial of the contest between the parties could not take place by virtue of the default on the part of one of the parties.  That would normally be sufficient to ground an adjournment application and may well found a successful application for costs against the defaulting party.

11. Here there are a number of matters which tend against the granting of the adjournment.  The first is that the nature of the proceedings is such that the question of the prospects of the wife in pursuing her ultimate claim are to be judged on a prima facie basis taking her case at its highest.  That does not completely answer the question of whether or not the nondisclosure should or should not result in an adjournment.  However, there are other factors which indicate that in this instance it should not found an adjournment. 

12. The final hearing of this matter has been on foot since October.  As I noted that date was given over the husband's opposition.  The material, or at least part of the material that the wife points to say that there has been a material nondisclosure has been in her hand since February 2018, days after the provision of the Financial Statement by the husband which is said to be indicative of the nondisclosure.  In relation to such a nondisclosure the wife has sat on her hands.  She has not sought an adjournment, did not resist the setting down of the matter for trial and did not pursue orders for disclosure that she now asserts are necessary.  This is no late-breaking development in a case which has slowly moved towards an opportunity for resolution. 

13. The circumstances where the wife has sat on her hands pending the hearing of the matter to make her application on the morning of the trial, where if the issue of nondisclosure was important, she was well aware of it, as she asserts the husband has asserted that he does not have an obligation of disclosure, are such to mean that the late application for an adjournment should not be granted as the adjournment would not be in the interests of justice under those circumstances.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 December 2018.

Associate:

Date:  21 December 2018