Markey and Addens

[2017] FamCA 568

FAMILY COURT OF AUSTRALIA

MARKEY & ADDENS [2017] FamCA 568

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournments – Application to adjourn a final hearing

Family Law Act 1975 (Cth) s 69ZN

APPLICANT: Ms Markey

RESPONDENT: Mr Addens

FILE NUMBER: SYC 4884 of 2013

DATE DELIVERED: 17 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 17 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Slater & Gordon Lawyers

ADVOCATE FOR THE RESPONDENT: In Person

Orders

1. Costs are reserved.

IT IS NOTED THAT

1. Further orders in relation to the property proceedings will be made at the conclusion of the children’s matter.

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 Markey & Addens 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 SYDNEY

FILE NUMBER: SYC 4884/2013

Ms Markey

Applicant

And

Mr Addens

Respondent

REASONS FOR JUDGMENT

Determination

1. In this matter, an adjournment application has been made this morning by the father, Mr Markey, to have the whole of the case, that is the children’s and property case, adjourned.  Failing my assent to that, the father seeks that the property case be adjourned.

2. In relation to the children’s case, the application is put on the basis that the father seeks the appointment of an Independent Children’s Lawyer as was recommended by the Family Consultant in the Family Report almost a month ago.  I note that there has been no application to this effect prior to today’s date, and do not consider, in the context where there is already the preparation of a Family Report, that the seeking of an Independent Children's Lawyer is sufficient to justify an adjournment on its own, even though I expect that an Independent Children's Lawyer would give some assistance in trying to deal with the views of the child B (“the child”), which is one of the troubling matters raised by the Family Consultant.

3. In relation to property, the mother now raises an issue regarding the father’s use of prostitutes. In this case it is notable that despite directions given by Justice McClelland that the parties were to file their primary affidavit material 28 days in advance of the trial date, the father has filed nothing.  That causes me to have significant caution in dealing with an adjournment application where he has chosen not to file any material.

4. In contrast, the mother filed almost on time, that is, about 26 days before the trial date.  Had service been effected at that time, then nothing would have turned upon the failure to strictly comply with that direction.  However, the mother failed to serve the material until Thursday 13 July 2017, despite the directions made by Justice McClelland, and despite having filed the material some time earlier.  There is correspondence, which was marked as exhibit M1 in the proceedings, wherein the solicitor for the mother sought to exchange material with the father.  Justice McClelland’s orders were not predicated upon the parties exchanging material, but allocated a particular date for the filing and service.  Consequently the father was not on notice as to the issue regarding prostitution until last Thursday.  He is a self-represented litigant.

5. That issue of prostitution is raised, I am told, principally in the property proceedings, and principally in relation to an argument of waste.  That is, it is suggested that the mother will tender material in support of her assertions in relation to the father’s use of prostitution to say that he spent approximately $432,000 in a period principally between 2012 and 2014, but extending to some point in 2011 and finishing at some point in 2015.

6. The father says that this expenditure pointed to by the mother is not expenditure upon prostitutes, and further says that, if given the opportunity, he could lead evidence to corroborate that position, that is, that the moneys expended were a legitimate business expense, rather than expenditure on the services of prostitutes.  It appears that in the property proceedings this is a matter of some significance.  There is considerable procedural disadvantage caused to the father by non-compliance with the directions by the mother that is a potential miscarriage of justice where the mother has been non-compliant.

7. Because of the potential prejudice to the father, it is appropriate to adjourn the property proceedings. If that was to occur, the mother then resists the splitting of proceeding, and does so primarily because it appears likely that there would be additional costs imposed upon her.  The father, in contrast, says that the children’s proceedings could be split off, and it seems that in this case the prostitution evidence is primarily regarding waste in the property proceeding, although counsel for the mother indicates that there may be some overlap.  The significance in the children’s proceedings seems minimal given the exchanges that have taken place between myself and counsel for the mother.

8. In determining the question about what should happen with the children’s proceedings, I note that there is the prospect that proceedings will be more expensive for the mother.  The key issue, however, given the content of the Family Report, is the severe impact of shared care, currently, on the child.

9. Section 69ZN sets out principles in relation to child proceedings, and the first principle is that I am to have regard to the needs of the child and the impact of the proceedings on him.  That raises the most significant consideration in terms of the interests of justice in relation to the various applications about adjournment or splitting.  Despite the potential further costs to the mother, it is critical that the issue in relation to the child be resolved as promptly as it can in respect of parenting, where he is currently at risk of adverse emotional development in the current regime, and with uncertainty as to what will happen in the future.

10. Accordingly I will determine the children’s proceedings, with the trial in the matter to start now.

11. In relation to the issue of any costs, I will reserve the costs of today, or of this morning, to the future disposition of the property proceedings.  If the father fails to provide the material that he says he can provide on adjournment, without in any way binding a future decision maker and without in any way indicating a determination of the issue on my part, there is potential that that may justify a costs order being made against him.

12. I will make further orders in relation to the property proceedings at the conclusion of the children’s matter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 July 2017.

Associate: 

Date:  7 August 2017