Markwell and Markwell

[2012] FamCA 714

FAMILY COURT OF AUSTRALIA

MARKWELL & MARKWELL [2012] FamCA 714

FAMILY LAW – PRACTICE AND PROCEDURE – Interim Orders – where the parties’ applications for property adjustment orders are dismissed for want of prosecution pursuant to Rule 11.06(1)(b) of the Family Law Rules 2004 (Cth) subject to the parties providing the Court with consent orders within three (3) months from the date of orders – where the parties have continuously adjourned the matter and made submissions to the Court as to the likelihood of settlement of the proceedings – where the proceedings have been on foot for three (3) years and there has been no progress for some sixteen (16) months – where the matter cannot be fixed for trial because of alleged outstanding issues as to the joinder of further parties, lack of knowledge about the witnesses to be called, possible staleness of the single expert evidence, and the possible need for appointment of adversarial experts

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 11.06

APPLICANT: Ms Markwell

RESPONDENT: Mr Markwell

FILE NUMBER: SYC 2928 of 2009

DATE DELIVERED: 18 July 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 18 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Baker Love Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Boyd Olsen Lawyers

Orders

1. Pursuant to Rule 11.06(1)(b) of the Family Law Rules the applications for orders contained within the following documents are dismissed for want of prosecution, unless the parties file with the court by 9.30 am on Thursday 25 October 2012 terms of settlement resolving all issues in dispute between them, which terms of settlement will then be considered by the Court:

   (a)Initiating Application filed on 19 June 2009; and

   (b)Response filed on 21 August 2009.

2. The matter is adjourned until 9.30 am on Thursday 25 October 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Markwell & Markwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 2928 of 2009

Ms Markwell

Applicant

And

Mr Markwell

Respondent

EX - TEMPORE

REASONS FOR JUDGMENT

1. Before the Court for consideration are the respective applications for property adjustment orders made by the applicant wife and respondent husband.

2. The proceedings have had an enormously protracted history.

3. The proceedings were commenced by the wife filing an Initiating Application on 19 June 2009. The respondent husband filed his Response shortly thereafter on 21 August 2009. Neither the applicant nor the respondent has amended their applications since the filing of those documents.

4. Notwithstanding, despite the passage of some three years since the initiation of these proceedings, very little progress has occurred from the Court’s perspective. In fact, no documents have been filed in the proceedings by either party since the last interim hearing was conducted on 25 March 2011, save for an affidavit filed by the husband on 9 May 2011 which simply deposed to issues of financial disclosure. In any event, that affidavit was not filed pursuant to the Family Law Rules 2004 (Cth) or apparently pursuant to any procedural order made by the Court. Consequently, there has been no activity on the Court file for a period of approximately 16 months.

5. The matter has enjoyed a series of interim events, the chronology of which I should shortly outline, it being noted that this chronology commences nearly twelve months after the proceedings were commenced.

6. On 12 May 2010 an intended interim hearing concerning the appointment of single expert witnesses was adjourned. The interim hearing was again adjourned on 28 May 2010, but was ultimately heard and determined 29 June 2010. Orders were made on that occasion appointing several single expert witnesses for the valuation of a huge number of real properties.

7. The matter was back before the Court on 28 October 2010 and 25 January 2011 in expectation of the single expert witnesses’ reports being available. On neither of those occasions were the single expert reports available.

8. One 25 March 2011 another interim hearing was due to be conducted in relation to the appointment of another single expert witness and further orders were made on that date.

9. The matter came back before the Court on 29 July 2011 at which point the proceedings were adjourned for a period of six months, even though the parties only wanted a shorter adjournment.

10. It was represented to the Court on that occasion that the parties were intending to attend mediation in August of 2011. The court was also informed that the parties were, or at least one of them was, dissatisfied with at least some of the single expert valuation evidence available at that point in time. The parties also informed the Court that there were valuations of relevant assets still yet to be undertaken.

11. When the matter came back before the Court on 15 December 2011 the matter was adjourned for a further period of two months, given that the parties represented to the Court the matter was settled and time was required for the preparation of consent orders. Regrettably, the same representation has been made to the Court on many occasions since then without the matter being brought to conclusion in such a manner.

12. On 15 December 2011, the Court noted that in the event the parties did not present the Court with consent orders prior to the next court event they would be asked to consider the question of the dismissal of the proceedings for want of prosecution.

13. The matter came back before the Court on 23 February 2012 instead of 22 February 2012 and the matter was again adjourned on the mutual application of the parties. Again the Court was informed that the proposed settlement between the parties had still not been consummated and a period of three months reprieve was requested to enable all relevant documentation to be prepared.

14. Again on that date the Court noted that it would expect submissions from the parties at the next court event about why the proceedings ought not be dismissed for want of prosecution if consent orders were not then available, or alternatively, the parties were not in a position to accept a trial date with ancillary procedural directions.

15. The matter was accordingly adjourned to 1 June 2012.

16. After that time numerous further requests were made by letter for the proceedings to be successively adjourned.

17. On 3 April 2012 the Court was requested by letter to put back the return date by one week to 8 June 2012. That request was granted.

18. On 5 June 2012 the Court was requested by letter to change the return date to 28 June 2012. That request was granted.

19. On 22 June 2012 a request was made by letter to change the return date to mid July 2012. The requested was granted.

20. As a consequence, the matter was re-listed before the Court today, being Wednesday 18 July 2012 at 9.30 am.

21. Only two days ago, on 16 July 2012, the Court was again requested by letter to adjourn the matter for one month. The Court declined that request.

22. The legal representatives for the parties appeared before the Court today and confirmed that the request made only two days ago for a further reprieve of one month was now not even sufficient. It was contended that difficulties in valuing a superannuation interest necessitated an even longer adjournment of approximately three months until October 2012.

23. Both parties represented to the Court again that the matter was close to settlement and each party represented that they were not in a position to accept a trial date, given that there is an intention by one or both parties to join other entities to the proceedings. Nor could the parties indicate to the Court what witnesses would need to be called in the proceedings or which single expert witnesses would be required for cross examination. Submissions were also made to the effect that there may be a need for an interlocutory application to call adversarial expert evidence in rebuttal of previously procured single expert valuation evidence.

24. On the strength of the submissions made by the parties I accept that it would be completely untenable to now fix a trial date for the matter, having regard to the extent of those unresolved issues.

25. I intend to accede to the mutual application of the parties to adjourn the matter for a period of three months in expectation that they can consummate their expected settlement within that period of time.

26. However, I am not prepared to allow the matter to drift on indefinitely. As I have already indicated, the proceedings have now been on foot for more than three years and from the Court’s perspective there has been absolutely no progress in the proceedings for 16 months.

27. For those reasons the adjournment requested by the parties will be granted, but upon condition that in the event that terms of settlement are not available for the Courts’ consideration at the next court event then the parties’ outstanding applications within the Initiating Application of the wife and Response of the husband will be struck out for want of prosecution.

28. If it is the case that those self-executing orders are invoked it will be necessary for one of the parties to recommence the proceedings in due course when all of the complicated issues to which the parties have drawn the Court’s attention are resolved or at least clarified.

29. In the management of this litigation the Court must give consideration not only to the interests of the parties but also the Court’s resources, which are meagre. There are many other litigants waiting in the queue for the Court’s attention and the Court’s resources cannot be continually devoted to the case management of proceedings which have the appearance of going nowhere.

30. Those are the reasons for the orders which I have already announced.

I certify that the preceding thirty (30) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Austin delivered on 18 July 2012.

Associate: 

Date:  23 August 2012