Lynton and Lynton

[2009] FamCA 1002

FAMILY COURT OF AUSTRALIA

LYNTON & LYNTON [2009] FamCA 1002

FAMILY LAW – PRACTICE AND PROCEDURE – case management – adjourned for continuation of trial
FAMILY LAW – COSTS – where the husband has failed to comply with orders of the Court – husband to pay the wife’s costs of the hearing

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Lynton

RESPONDENT: Mr Lynton

FILE NUMBER: ADC 206 of 2008

DATE DELIVERED: 15 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Scragg

SOLICITOR FOR THE APPLICANT: Peter Scragg & Associates

COUNSEL FOR THE RESPONDENT: Mrs Lindsay

SOLICITOR FOR THE RESPONDENT: C E Legal Pty Ltd

Orders

1. Leave is granted to the parties nunc pro tunc to file the documents which are currently before the Court.

2. This matter is adjourned for a continuation of trial to the 19 November 2009 at 9.15 am before the Honourable Justice Dawe.

3. The husband within ten [10] days from today to file and serve an affidavit in relation to relevant documents within his power, possession or control UPON NOTING that any update of documents that the wife wishes to rely upon to be completed within that time and all inspection to be completed by the 13 November 2009.

4. The husband pay the wife’s costs of today’s hearing at a sum to be agreed or as otherwise taxed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 206 OF 2008

MS LYNTON

Applicant

And

MR LYNTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Because this matter has not been properly prepared in accordance with the orders which I made on the last occasion, I intend to adjourn the further consideration of the matter by way of a continuation to prepare it properly for trial. 

2. I have indicated in discussing the issues in dispute that the parties must undertake various steps well before that date.  I propose to indicate that the parties need to either agree valuations or agree the method by which the valuation will be determined, for all assets and liabilities in dispute save and except for those debts in relation to which witnesses have been named, or in relation to which the party claiming the debt (either owing or due to be paid) is relying just on their own evidence.  I want all steps to be taken very promptly so that everything is completed and all information filed and exchanged no later than 13 November.

3. I will then at that final hearing settle the issues in relation to the balance sheet which is before me.  I will hear Mr Scragg’s instructions in relation to further valuation at the request of the husband by a single expert of the N property, unless the updated valuation is agreed, and will expect all the parties to be able to answer the questions which they were not able to answer today;  namely, the particulars of each amount.  I also expect that full discovery and inspection will have been completed by 13 November. 

4. Inspection is to be completed, as I have indicated, by 13 November, so that the parties can either agree the figures in dispute or indicate what the basis of the dispute is.  On 19 November, I will propose to have those matters clarified and then I will make specific orders for the filing of any other affidavit material which is required to be filed.  I do not see the need for witnesses who have already filed affidavits dealing with their matters (if affidavits are adequate) for them to file further affidavits, but I will need to hear about that when full consideration has been given to the matters which are actually in dispute.

5. I am being asked to make an order in relation to costs.  I made an order on 6 August 2009, some of which was complied with properly, some of which was complied with by the wife, other matters which were not complied with on time. 

6. There are significant matters which the husband (who was then represented before the Court) failed to comply in any sense with the orders that were made, notwithstanding the specific terms of the orders I made on 6 August 2009.  I point out that that hearing before me on 6 August 2009 was an attempt at a first day of hearing for the trial, not simply a directions hearing or some other appointment before a Registrar.

7. I also point out indeed that the matter has been ongoing before this Court and the Federal Magistrates Court for a considerable period of time.  The proceedings commenced by the wife in January 2008 were listed for trial in the Federal Magistrates Court and were then transferred to this Court.  There have been numerous attendances before Registrars in this Court in order to prepare the matter for trial.  In particular, orders going back as far as 30 June 2009, when Registrar Paxton made specific orders in relation to certain matters to be done in order to have the matter ready to be listed before me on 6 August.

8. The matter again came on before a Registrar after my orders of 6 August, when it was pointed out to the husband firmly (and I have the note that says it was “emphasised” to the husband) that he needed to comply with the orders of 6 August.  The specific orders that he had not attended to were identified and he was reminded that he must attend to this as soon as possible.

9. Notwithstanding that notation that was made on 1 October 2009, the documents were provided to the Court today.  I note that the only explanation we have for that is that the husband’s previous solicitor, Ms Tucker, ceased to act for him at about that time and that he has recently instructed new solicitors.

10. However, there have been many matters which should have been attended to, and a considerable part of the hearing today has been taken up by attending to matters which, if the balance sheet had been correctly agreed between the parties in the manner that was anticipated, and if all parties had had an opportunity to fully consider the documents, a further adjournment in the matter would not have been necessary.

11. I take into account the provisions of section 117 of the Family Law Act, and in particular section 117(2A) (the matters which I have to consider). In this particular matter the most significant one is the failure of the husband to comply with the orders made by the Court, by the Registrar and by myself in an appropriate manner and the lack of explanation for the failure to comply with those orders, save and except he has changed solicitors.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  27 October 2009