MAIDA & MAIDA
[2019] FCCA 2474
•5 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAIDA & MAIDA | [2019] FCCA 2474 |
| Catchwords: FAMILY LAW – Application by Respondent Father for stay and review of previous Orders regarding sale of former marital residence – continued and protracted non-compliance by Respondent Father with Orders for filing material – unsubstantiated claims by Respondent Father regarding available finances – Applicant Mother pressing Orders for sale of former matrimonial home – Stay granted conditional upon Respondent Father filing evidence as directed – Costs. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21 AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172. |
| Applicant: | MS MAIDA |
| Respondent: | MR MAIDA |
| File Number: | CAC 642 of 2019 |
| Judgment of: | Judge Neville |
| Hearing date: | 28 August 2019 |
| Date of Last Submission: | 28 August 2019 |
| Delivered at: | Canberra |
| Delivered on: | 5 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Campbell & Co |
| Solicitors for the Respondent: | Self-Represented |
| Solicitors for the Independent Children's Lawyer: | Robinson + McGuinness |
ORDERS
The Orders dated 20th August 2019 be conditionally stayed upon the Respondent Father/Husband completing all of the following matters within 14 days of the date of these Orders, being by close of business on 19 September 2019:
(a)The filing and service of independent evidence that finance (e.g. bank statement/s) is immediately available to him to enable him to pay out the Applicant Mother/Wife of her interest in the former matrimonial home located at A Street, Suburb G, New South Wales; and
(b)The filing and service of a Response, Financial Statement, Notice of Risk and Affidavit material; and
(c)The payment of the Applicant Mother/Wife’s costs of and incidental to the Court events on 3rd June, 11th July and 20th August 2019.
For the purpose of Order 1(c), such payment is to be as agreed between the parties in writing and failing agreement, the Applicant Mother/Wife is to provide a schedule of relevant costs as soon as practicable and the Respondent Father/Husband is to attend to payment of same into an account nominated by the Applicant Mother/Wife.
At the expiration of the 14 day period specified in Order 1 of these Orders, the solicitor for the Applicant Mother/Wife is to advise the Court by way of affidavit as to whether or not the Respondent Father/Husband has complied with the provisions of Order 1.
The matter remains listed for further directions on 7 November 2019 at 2:00pm in CANBERRA.
THE COURT NOTES THAT:
(A)Absent compliance with these Orders by the Respondent, the Court may make Orders, without further notice to either party, to ensure compliance with them, including (if necessary) removal of either person or personal property from the former marital residence;
(B)The Orders dated 20th August 2019 remain in force until such time that the Respondent complies fully with the provisions set out in Order 1.
IT IS NOTED that publication of this judgment under the pseudonym Maida & Maida is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 642 of 2019
| MS MAIDA |
Applicant
And
| MR MAIDA |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9th April 2019, the Applicant Wife and Mother filed an Initiating Application seeking property and parenting Orders. The Wife is a public servant whose average weekly income is $1680. She deposed that her weekly outgoings currently total $2084.90.
In relation to property, the general substance of the Wife’s Application is that, after listing her income and other expenses (with the two children of the relationship – 5 year old X and 3 year old Y – in her primary care), she simply cannot continue to pay the mortgage over the former marital residence in Suburb B. Its estimated value is $940,000. At the time of the Application, the mortgage stood at $581,000; the weekly mortgage payments for the mortgage are $575.00.
The other details of the Wife’s current outgoings are set out both in her Financial Statement, and in pars.29 and following of her Affidavit. Both of these documents were filed with the Initiating Application on 9th April 2019.
In the Wife’s Affidavit, she also deposed to the Father having various mental health issues, which (she says) have been acknowledged by members of the Father’s family. She deposed that she and the Father were in a relationship for 15 years. He is a tradesman by trade but now has a range of health issues which prevent him from working as a tradesman. In Court, from the Bar Table, the Father has said that he works now as a labourer. He said that he was earning $8 per hour, but that his financial situation was “improving”.
As noted in more detail later in these reasons, since the Mother’s Initiating Application was filed in Y of this year, the matter has been before the Court on four occasions. Despite Orders on two occasions for him to file his Response, the Respondent has failed to file Response material.
On 20th August 2019, the Respondent’s lawyer appeared to advise that he had been unsuccessful in obtaining instructions from the Father and sought leave to withdraw. That leave was granted. The Father did not attend Court on that day. Having previously formally noted that the Father was at risk of the matter proceeding on an undefended basis due to his continuing non-compliance with Court Orders to file Response material, the matter was dealt with on an undefended basis. Orders were made (also noted in detail below) for the former marital residence to be sold, the Wife to be appointed trustee for the sale, and among other things, there be a partial distribution of funds to both parties, and the balance of funds to be held in trust.
On 26th August 2019, the Father filed an Application in a Case seeking a stay of the Orders made on 20th August. Other, not completely intelligible, Orders (e.g. “Approval of Appeal of (P)CAC 642/2019”) were sought. This Application was supported by an Affidavit which simply and only stated: “I have filed a notice of appeal on case and hence require a stay of these Orders.” The Father’s Application was never served on the Mother’s lawyer or on the Independent Children’s Lawyer. Nonetheless they became aware of it and attended Court for the first return of the Father’s Application on 28th August 2019.
For the reasons that follow, there will be a stay of the Orders made on 20th August 2019 conditional upon, within 14 days of the date of these Orders, the Father
(a) filing and serving independent evidence of finance (e.g. bank statement(s)) being immediately available to him to pay out the Wife’s financial interest in the former marital residence,
(b) [as previously ordered] filing and serving a Response, Financial Statement, Notice of Risk and Affidavit, and
(c) pay the Mother’s costs of the Court events on 3rd June, 11th July and 20th August 2019 (as agreed or assessed; if the property is sold the costs can be taken out of the Father’s share of the net proceeds of sale).
Chronology and previous Orders/Notations
Previous Orders, together with all notations, are set out below. As already mentioned, they highlight the Orders of the Court directed to the Father to file material in Response to the Mother’s Initiating Application and supporting material. To date, the Respondent has not filed anything in accordance with the Orders. They also highlight the concerns the Court has attempted to bring to the Father’s attention, unfortunately, thus far without success.
The Orders dated 3rd June 2019 were as follows (emphasis added):
THE COURT NOTES THAT:
A. The Respondent informed the Court that he intends to obtain legal representation; accordingly,
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1. Within 21 days of the date of these Orders, being by 24 June 2019, the Respondent is to file and serve his Response material.
2. The matter be adjourned for further directions on 11 July 2019 at 9:15am in CANBERRA.
The Orders dated 11th July 2019 were as follows (emphasis added):
THE COURT NOTES THAT:
A. The Respondent is yet to file his Response material pursuant to the Orders dated 3 June 2019;
B. The Respondent arrived some 15 minutes after the matter was called from open Court;
C. The Respondent informed the Court that he has applied for Legal Aid three times but has not yet been advised of the outcome of those Applications. The Respondent advised that he had prepared his Response material but had not yet filed it. The matter was stood down to allow the Respondent to speak with the duty lawyer;
D. When the matter was re-mentioned, the duty lawyer informed the Court that the Respondent had prepared some material, but that it was not in any form that could be filed immediately. The duty lawyer informed the Court that she was unable to further assist the Court, and sought leave to withdraw. That leave was granted;
E. The parties informed the Court that the Respondent currently resides in the matrimonial home and the Applicant continues to pay the mortgage and all outgoing costs on that property. The solicitor for the Applicant informed the Court that the Applicant is not in a position to continue to meet those costs on an ongoing basis; accordingly,
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1. Within 21 days of the date of these Orders, being by 1 August 2019, the Respondent Father is to file and serve his Response material, including:
a.A Response;
b.A Financial Statement; and
c.A supporting Affidavit.
2. Pursuant to s. 11F of the Family Law Act 1975 (Cth) the parties and the children, X (born: … 2013) and Y (born: … 2016), attend a Child Inclusive Conference with a Family Consultant at the CANBERRA REGISTRY on 29 October 2019 at 9:30am and pursuant to 11C of the Act, such conference be reportable.
3. The parties are to notify the Registry if they have any safety concerns in relation to attending the conference to assist the preparation of a Safety Plan.
4. The children, X (born: … 2013) and Y (born: … 2016) (“the children”), live with the Mother.
5. The children spend time with the Father each Saturday from 10:00am until 12:00pm, under the supervision of Contact Service F until such time as there is availability for supervision to occur through Family Services G.
6. For the purposes of Order 5, the parties are to each sign up and complete forthwith the intake process for Contact Services F and for Family Services G.
7. The Mother shall facilitate telephone contact between the children and the Father on Sunday, Wednesday and Friday between 6:00pm and 6:30pm and the Father shall initiate the calls.
8. The parties are restrained by injunction from causing damage to any part of the property at any time.
9. Within 7 days of the date of these Orders, being by 28 July 2019, the Applicant Mother is to inform the Court via email whether there are dates available prior to 29 October 2019 (the date of the currently listed Child Inclusive Conference) for a privately-funded Report to be prepared.
10. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X (born: … 2013) and Y (born: … 2016).
11. The Legal Aid Office, ACT, is requested to make arrangements as soon as practicable for appropriate representation for the children.
12. Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
13. Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.
14. The Independent Children’s Lawyer and the parties’ legal representatives only be granted leave to inspect and photocopy material produced under subpoena and / or pursuant to S69ZW Orders.
15. The matter be adjourned for further directions on 7 November 2019 at 2:00pm in CANBERRA.
THE COURT FURTHER NOTES THAT:
F. Absent the Respondent filing Response material pursuant to Order 1 herein, the Court foreshadowed that the matter may proceed on an undefended basis, and that Orders may be made for the marital home to be placed on the market for sale;
G. The matter may be re-listed at an earlier date, subject to any notification pursuant to Order 9 herein regarding the availability of a privately-funded Report writer;
H. The solicitor for the Applicant informed the Court that the Applicant currently drives the Motor Vehicle C (vehicle registration …), which is registered in the Respondent’s name, and that the Respondent currently drives the Motor Vehicle D (vehicle registration …), which is registered in the Applicant’s name. The parties agreed to sign all relevant documents prior to leaving the Court room to transfer the registration of each car to the party driving the car;
THE COURT FURTHER NOTES IN CHAMBERS THAT:
I. The solicitor for the Applicant informed the Court via email to Chambers dated 11 July 2019 that the Respondent refused to sign the relevant documents to enable the transfer of the registration of the vehicles referred to in Notation G above, and sought that a section 106A Order be made in Chambers; accordingly,
UNTIL FURTHER ORDER, THE COURT FURTHER ORDERS IN CHAMBERS THAT:
16. Pursuant to s106A of the Family Law Act 1975, the Registrar of this Court is immediately authorized to sign all relevant documents necessary to transfer the registration of:
a. The Motor Vehicle C (vehicle registration …) to the Applicant Wife’s sole name; and
b. The Motor Vehicle D (vehicle registration …) to the Respondent Husband’s sole name.
The Orders dated 20th August 2019 were as follows (emphasis added):
THE COURT NOTES THAT:
A. The Independent Children’s Lawyer was excused from attending Court on this occasion as the Applicant’s Application in a Case filed on 5 August 2019 relates to property matters only;
B. The solicitor for the Respondent informed the Court that since filing a Notice of Address for Service on 7 August 2019, he has had considerable difficulty obtaining instructions from his client and sought leave to withdraw;
C. The Respondent has not yet filed his Response material pursuant to the Orders dated 3 June 2019 and 11 July 2019;
D. Notation F of the Orders dated 11 July 2019 foreshadowed that, absent the Respondent filing any Response material pursuant to Orders, the matter may proceed on an undefended basis, and Orders may be made for the marital home to be placed on the market for sale; accordingly,
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1. The solicitor for the Respondent be granted leave to immediately withdraw.
2. The matter proceed on an undefended basis.
3. Forthwith, the former matrimonial home located at A Street, Suburb G, in the state of New South Wales (”the property”), being the whole of the land in folio …, be placed on the market for sale and by way of consequential arrangement that shall be made for the purposes of effecting the sale:
a.The Applicant is hereby appointed as sole trustee for the sale of the property:
i.The real property shall be listed for sale by private treaty with a Real Estate Agent nominated by the Applicant.
ii.The listing price or reserve price for the property shall be as recommended by the nominated Real Estate Agent.
iii.The Applicant’s signature on contracts and transfer documents necessary to initiate and finalise the sale of the property shall suffice to give effect to such contracts and to finalise the sale of the property.
iv.The Applicant’s signature on transfer documents necessary to transfer the title of the property to a purchaser shall suffice for the NSW Land Titles Office to effect the transfer of title on behalf of both of the parties.
2. The Respondent shall do all things to cause the property to be vacated by four hours prior to each and any inspection or Open House and for this purpose the Respondent shall be given 24 hours’ notice of an inspection or Open House.
3. Upon completion of the sale the proceeds of the sale shall be applied as follows:
a.Firstly, to pay all costs, commissions and expenses of the sale and to pay any in respect of the property;
b.Secondly, to discharge the mortgage attached to the property and other encumbrances affecting the property;
c.Thirdly, to pay the loans securing the Motor Vehicle D motor vehicle registration number … and the Motor Vehicle C motor vehicle registration number …;
d.Fourthly, to pay the parties an interim distribution of $10,000 each; and
e.Fifthly, the remaining funds be held in the trust account of the Applicant’s Solicitor.
4. Any of the funds held in trust pursuant to Order 4(e) shall only be released by further Court Order, or by consent of both parties and such consent shall be provided in writing.
5. On or before the completion of the sale of the property the Respondent shall provide vacant possession, remove all items not included in the sale and ensure that the property is left in a clean and tidy condition.
6. In the event that either party refuses or neglects to execute any deed or instrument, the registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
4. The matter remains listed for further directions on 7 November 2019 at 2:00pm in CANBERRA.
Outline of principle
I note the following from the Full Court’s decision in Aldrige & Keaton (Stay Appeal).[1] At [17] – [18], the Court said (emphasis in original):
[1] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications, where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B [2006] FamCA 848; (2006) FLC 93-288.
[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· a person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to grant a stay;
· the bona fides of the applicant;
· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
· the desirability of limiting the frequency of any change in a child’s living arrangements;
· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
· the best interests of the child the subject of the proceedings are a significant consideration.
I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[2]
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
[2] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.
In the same case, Aickin J (with whom Mason and Wilson JJ agreed at p.526) said (at pp.537-538) (emphasis added):
Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 CLR, at p 533 :
“The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.”
15. It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.
16. The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.
I also remind myself of the observations by Kirby J in CDJ v VAJ, where his Honour said, at [185, par.2] (internal citations omitted):[3]
Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
[3] CDJ v VAJ (1998) 197 CLR 172.
The Father’s Submissions
At the hearing on 28th August of the Application for a stay, the Father appeared with a person who identified himself as a “McKenzie Associate [sic].” The Father indicated that this person, Mr E, was also his new employer, a friend and general “supporter”.
Very summarily stated, the Father’s oral submissions were as follows. I simply note again that the Father has filed no evidence in the proceeding and therefore there is nothing before the Court to support any of the following contentions.
First, he wanted to keep the former marital residence as a familiar place for the children. I pointed out to him, in general terms, that children regularly change residence to no ill effect on relationships. It was, I suggested, the quality and stability of relationships with parents and siblings rather than the material surroundings that were usually the more important for children.
Secondly, he said that the Mother’s financial assertions were not correct.
Thirdly, he said that his financial situation had improved since he was last before the Court. He was unable to identify how this had occurred, in what respects, or to what degree, it had changed.
Fourthly, although his Mother is elderly and in some form of care, which (he said) required her to be “delicately handled”, the Father said that his Mother would effectively be his “bank” and provide him with funds to pay out the Mother’s interest in the former marital residence. I pointed out to him that, as with all else, there was no evidence from his Mother to support this claim.
Fifthly, the Father said that he did provide his former lawyer with instructions from him - contrary to what his lawyer said in open court, as noted earlier in these reasons, regarding his inability to get instructions from the Father.
Sixthly, the Father said that he had filed an appeal regarding the Orders made to sell the former marital residence, noting again that he did not attend Court on the date those Orders were made (20th August 2019). He also said that he would file an Amended Appeal. He did not disclose what would necessarily be in his proposed Amended Appeal or provide any confirmation or documents that verified that an appeal had been lodged.
The Court has checked with the Appeals Registry, which has confirmed that, contrary to the Father’s assertions, the appeal lodged by him has not been accepted.
The Mother’s Submissions
Noting again that the Mother (and the Independent Children’s Lawyer – “the ICL”) had not been served with the Father’s Application in a Case filed on 26th August 2019, the Mother’s brief oral submissions were as follows.
First, the Father has had more than 80 days to file response material to the Initiating Application but he still has not done so.
Secondly, justice and equity requires that the former marital residence be sold. Moreover, on any version of facts, the property needs to be sold. The Mother cannot afford to keep paying the ongoing debts of the relationship (including the mortgage). In the ongoing absence of evidence from him, and in the light of only his bald assertions from time to time from the Bar Table, whatever and whenever his “improved financial position” is, it would clearly seem that the Father equally cannot afford to pay out the Wife and keep the property, at least not without the urgent financial assistance from his Mother.
Thirdly, a number of cases were briefly cited by the Mother’s lawyer. However, those cases – which I need not detail here – related primarily to matters involving the granting (or not) of injunctions. As such, in my view, it is unnecessary to consider them.
Fourthly, the Mother denied the Father’s unsupported and unsubstantiated claims that various personal property of his is being removed from the former family home and or destroyed. The Mother said that she was content to provide an undertaking or to be subject to an Order restraining her from removing or disposing of the Father’s possessions at the former family residence.
Consideration and disposition
First, as already noted, the Father has consistently been, and remains, in default of compliance with the Court’s Orders since 3rd June 2019. He has filed nothing in response to the Mother’s Initiating Application.
Secondly, it follows that his brief oral claims have all been made without reference to, or support from, any sworn evidence. His various contentions are also made without notice to either the Mother, the ICL, or the Court. As already indicated, the Father has had multiple opportunities to put on his material, and been directed by the Court to do so, but has failed to do so despite explicit direction from the Court.
Thirdly, according to the principles set out in Aldridge & Keaton (Stay Appeal) set out earlier in these reasons, in my view, the Father has not established any reason why the Court should accede to his entreaty (which is what it was) to give him more time to file his material. There is not a sliver of evidence he has provided that he will marshal the funds to fix up the property side of these proceedings, as he promises to the Court to do. He said that he will honour his promises to the Court especially because his children are his main focus and he wants to resolve the parenting side of the proceedings as a matter of priority also. He has not made any great strides on that score either – but that is for another day. Moreover, according to the principles outlined in Aldridge & Keaton, in all of the circumstances, the Wife/Mother is entitled to the Orders previously made being complied with.
Fourthly, there is a further not insignificant principle for the conditional Orders proposed by the Court being made. Perhaps unsurprisingly in the circumstances, no one addressed the principles set out by the High Court in AON Risk Services Australia Limited v Australian National University regarding the proper use and allocation of scarce public resources of the Court.[4] Although in times past it has occasionally been the case that somewhat different or attenuated rules, principles and practices have been adopted in family law proceedings compared to, say, commercial litigation. However, in my view, especially in these increasingly straitened times where resources of Courts (especially, but not only, in family law) are being stretched beyond breaking point, there must come a time where proper attention to the High Court’s admonition regarding the efficient allocation of scarce resources must be heeded. Otherwise, why have such principles in the first place?
[4] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
In the separate judgment of French CJ, his Honour said, at [5] (emphasis added):
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system….
At [23], his Honour said:
… the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.
Finally (for current purposes), at [26], French CJ said, by reference to earlier High Court authority (internal citations omitted; emphasis added):
… in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider "the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties" …
The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ made similar comments to those of the Chief Justice. For current purposes it is sufficient to note the following.
First, at [93], their Honours referred to the achievement of a timely and cost-effective resolution of a dispute as also having “an effect upon the court and upon other litigants.”
Secondly, by reference to authority from the English Court of Appeal, at [94], the High Court said (emphasis added; internal citations omitted):
In Gale v Superdrug Stores Plc Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
At [100], again by reference to UK authority, the joint judgment stated (internal citations omitted; emphasis added):
justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants …
In my view, the significant period of 80 days calculated by the Wife/Mother the Husband has had to file his material is more than sufficient for him to do so. He remains delinquent in this regard. Each time the matter comes before the Court, it costs the Mother money, time and effort to address both the Father’s non-compliance with Orders, and his brief, oral submissions comprised of unsubstantiated claims.
For the reasons given, the Orders set out earlier in these reasons should be made. Conditional upon compliance with all of the terms specified, they will give the Father one last opportunity to properly engage with the proceedings.
It must also follow that if there is no compliance with these Orders, the sale of the former marital residence must proceed as a matter of urgency. This would require the Father to vacate that property permanently (a) to allow its cleaning and inspection prior to sale, and (b) ultimately to give vacant possession when the property is sold. Both parties are on notice that, absent compliance with these Orders by the Father, the Court may make Orders, without further notice to either party, to ensure compliance with them, including (if necessary) removal of either person or personal property.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 5 September 2019
0
13
2