Marsh and Marsh & Anor (No 2)

[2013] FamCA 1059

FAMILY COURT OF AUSTRALIA

MARSH & MARSH AND ANOR (NO. 2) [2013] FamCA 1059

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought to adjourn final hearing of the proceedings – Where the applicant is self-represented – Where the husband and intervenor are ready to proceed on the allocated hearing dates – Where contravention proceedings with respect to parenting matters are part-heard and are next before the court prior to the current allocated hearing dates for property matters – Where application for adjournment is granted.

Family Law Act 1975(Cth)

APPLICANT: Ms Marsh

RESPONDENT: Mr Marsh

INTERVENOR: Australian Taxation Office

FILE NUMBER: SYC 3464 of 2009

DATE DELIVERED: 12 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 12 December 2013

REPRESENTATION

THE APPLICANT IN PERSON: Ms Marsh

SOLICITOR FOR THE RESPONDENT: Champion Legal

SOLICITOR FOR THE INTERVENOR: ATO Legal Services Branch

Orders

1. That I vacate the hearing dates fixed to commence on 10 February 2014. 

2. That the applicant wife shall pay the costs of the husband and the Australian Taxation Office thrown away by reason of the adjournment as agreed or as assessed.

3. That I fix this matter, before myself for hearing, for six (6) days commencing at 10am on Monday 19 May 2014.

4. That the applicant wife shall file and serve all the material upon which she would seek to rely upon by no later than close of business on 24 April 2014.  Thereafter, the wife shall not be permitted to file any further material without further leave of the Court. 

5. It is noted that the parties are not agreed on the values of the properties and, I order, that Order 6 made on 10 May 2013 is hereby vacated.  In lieu thereof, the parties each have leave to obtain their own values of the K Town; G Town; and CC Town, New Zealand properties. 

NOTATIONS: 

1. It is noted that the parties agree that the changeover time and place for Christmas school holidays is 12 noon on 4 January 2014 at the K Town property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsh & Marsh and Anor (No. 2) 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 SYDNEY

FILE NUMBER: SYC 3464 of 2009

Ms Marsh

Applicant

And

Mr Marsh

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is an application for the vacation of the hearing date for the property aspects of this marriage.  The hearing was fixed in May this year for six days commencing on 10 February 2014.  There has thus been a significant time for the parties to prepare for a hearing.  The husband and the Australian Taxation Office (“the ATO”) have indicated that they are ready to proceed on the allocated hearing dates.  Ms Marsh (“the wife”) applies for an adjournment on a number of bases.  The wife says that she has been distracted from the proper preparation of this case by complicated parenting issues arising out of the relationship of the parties and their son B. 

3. It is clear that there are contravention proceedings on foot that were originally listed before me but transferred to another judge for hearing.  This was because those contravention proceedings might involve findings of credit, which would likely preclude me from then hearing the property aspect of the matter.  Those contravention proceedings are part-heard and are next before the court on 28 January 2014.  The wife is acting for herself in those proceedings as well.  There is some force in that argument. 

4. The wife also asserts that the property proceedings should not be concluded until the parenting proceedings are completed.  In this regard I note that last year, Fowler J made final parenting orders between the parties.  The wife has indicated that she proposes to file an initiating application seeking to discharge or vary those orders.  There is no evidence to support her submission that once the property proceedings are finalised the husband will simply disappear with the child.  It is difficult to give that factor much weight at all. 

5. More significantly, pursuant to interim orders I made, there is a sum of approximately $250 000 held in the solicitor for the husband’s trust account.  This arises from the sale of a property of the parties, the proceeds of which were, pursuant to those orders, divided between the husband, the wife and the ATO.  That $250 000 represents the wife’s share and was designed to be available for her costs of the final hearing.  Earlier this year, the solicitors who acted for the wife on that interim application sought to exercise a lien over those funds.  That application was listed for hearing before another judge of the court yesterday.  It did not proceed. 

6. The wife tells me that the hearing date was vacated because the solicitors had not filed the affidavits that they were required to file in order to prepare for that hearing.  No other hearing date has been fixed.  The significance of that application is that if the application for a lien is unsuccessful, I understand that there is a lawyer available to act for the wife on the final hearing but not otherwise. 

7. The fact also remains that the wife has not prepared for the hearing.  The wife has not prepared an affidavit.

8. It seems that the issues with disclosure, insofar as they can be resolved on an interim basis, have been resolved as best they can be but the fact remains that the wife is not ready for the hearing in February 2014.  I have to say that I have some doubts as to whether she will ever be ready for a hearing, but taking the above matters into account, it seems to me there is enough material, given that she is acting for herself, to support the vacation of the hearing date. 

9. The position of the other parties has to be considered.  The ATO has a debt of some $2.2 million, which is incurring interest at the rate of some $16 000 compound per month. 

10. There is sufficient equity in the former matrimonial home to cover that interest at least until the date of the hearing, which I will shortly fix.  It may well be that there will be an application that the interest, at least after the date fixed for hearing in February 2014, be borne by the wife but that is a matter for the final hearing.  Thus, although there is a prejudice to the ATO in that it is held out of its money for some time, to a real prejudice, the interest accruing would seem to be protected. 

11. The husband did not point to any particular prejudice.  There is, of course, the prejudice that he, as a party, is entitled to have his case proceed expeditiously and properly.  There have been a plethora of proceedings between the parties, and at some stage this matter will have to proceed whether the parties are ready or not.  There is a further prejudice to the husband and the ATO which is that it is likely that they have incurred costs which will be wasted as a result of any vacation of the hearing date.  When raised with the wife she indicated that her preferred option would be to have the matter vacated with an appropriate order for costs as opposed to the matter proceeding in February and accordingly, that prejudice is alleviated to that extent. 

Conclusion

1. Taking all these things into account, and most reluctantly, I think the better course is to vacate the hearing date, which I shall do.  I propose, however, to fix a hearing date now and indicate as strongly and as firmly as I can, although acknowledging I cannot bind any decision-maker in the future, including myself, that this matter should proceed on that date whether the parties are ready or not.

2. Accordingly, the hearing date of this matter to commence on 10 February 2014 is vacated.  The applicant wife is to pay the costs of the husband and the Australian Taxation Office thrown away by reason of the adjournment as agreed or as assessed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 12 December 2013.

Legal Associate: 

Date:  24 January 2014