Martin and Martin and Anor (No. 4) - [2014] FamCA 442

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN AND ANOR (NO. 4)

[2014] FamCA 442

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Dispute about who should file affidavits of evidence in chief first where creditor of the wife seeks orders for payment by the husband based on allegations of collusion and fraud – Order for a “pleading-type” regime.

Family Law Act 1975 (Cth)

Martin & Martin [2012] FamCA 869; (2013) 49 Fam LR 76

APPLICANT:

Ms Martin

RESPONDENT:

Mr Martin

INTERVENOR:

X Firm

FILE NUMBER:

MLC

9829

2007

DATE DELIVERED:

25 June 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Taylor

SOLICITOR FOR THE APPLICANT:

Cahill & Rowe Family Law

COUNSEL FOR THE RESPONDENT:

Mr Glick SC with Mr Puckey

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE INTERVENOR:

Mr Kirkham QC

SOLICITOR FOR THE INTERVENOR:

Nedovic & Co

Orders

TIMETABLE

That by 25 July 2014 the applicant husband file and serve upon all other parties:
(a) The precise orders he intends to seek; and
(b) The material facts that support the making of those orders.
That by 25 July 2014 the applicant wife file and service upon all other parties:
(a) The precise orders she intends to seek; and
(b) The material facts that support the making of those orders.
That by 4.00pm on 8 August 2014 the respondent X Firm:
(a)The precise orders they intends to seek; and
(b)The material facts that support the making of those orders.
By 4 pm on 22 August 2014 the applicant husband file and serve upon all other parties all affidavits of evidence to be relied upon.
By 4 pm on 22 August 2014 the applicant wife file and serve upon all other parties all affidavits of evidence to be relied upon.
The applicant husband or the applicant wife pay all required court fees by 4 pm on 22 August 2014.
By 4 pm on 19 September 2014 the respondent X Firm file and serve upon all other parties all affidavits of evidence to be relied upon.
By 4 pm on 26 September 2014 the applicant husband and the applicant wife file and serve any affidavit in reply.
CASE MANAGEMENT
The registrar may vary the filing timetable under these orders.
If a party fails to comply with these orders, a party who has complied may file an application in a case supported by an affidavit seeking to proceed on an undefended basis.
Any rulings required on objections to evidence shall be set out in the case outline.
COSTS
At the commencement of the hearing, each party shall provide the court with a statement setting out their costs incurred to that date, the source of any payments made and what costs are expected until the completion of the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Anor (No. 4) 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 MELBOURNE

FILE NUMBER: MLC 9829 of 2007

Ms Martin

Applicant

And

Mr Martin

Respondent

And

X Firm

Intervener

REASONS FOR JUDGMENT

The final hearing of this dispute has been fixed for October and the parties now seek directions for filing of material. They disagree who should file material first. In my view, subject to what I am about to say about a pleading or document defining the issues, there seems to me to be no prejudice to any of the parties for the usual process to be followed.
There should be a defining of the orders sought together with simple statements as to why those orders should be made. Thereafter, affidavit material can be filed to prove the issues in dispute. While the Family Court of Australia is not a court of pleadings, there is no reason why “pleadings” cannot be ordered and I consider that course of action may assist the Court.
There have been several judgments given by me in this case following on from the reported reasons of Coleman J in Martin & Martin [2012] FamCA 869; (2013) 49 Fam LR 76. It is not necessary to repeat those.
It is sufficient to say that the husband and wife had been involved in property proceedings before the Court. The wife was represented by X Firm. X Firm is now the other party to these proceedings and, as a creditor, seeks to recover its costs.
Coleman J declined to make consent orders in the terms that had been agreed between the husband and wife. His Honour’s refusal did not mean that another judge might find the proposed orders were just and equitable. The application of the husband and wife for that to happen is still an extant issue. X Firm has consistently argued that the Court should not make the proposed orders. X Firm then seeks orders for itself and it is said that they are pursued against the husband. It is asserted against the husband and wife that they colluded with each other to avoid X Firm being paid. Emotive as that term may be, that has been the consistent position of X Firm.
In the hearing before me on 20 June 2014, Mr Glick QC submitted that X Firm should file its evidence first because of the nature of the collusion allegation so that the husband could respond to that. He submitted that fraud, which he said was being asserted, was serious and the husband (and the wife) had a right to advice before they filed their material. It was submitted that if the assertion of X Firm was confined to saying that the orders sought by the husband and wife should be declined on the ground that they were not just and equitable, he saw no problem with the husband and wife going first. His submission was based on the fact that they had to face this allegation of fraud.
Dr Ingleby for X Firm submitted that there should not be a departure from the usual practice of the applicants filing first. He submitted that X Firm was entitled to seek orders and he gave three reasons that he said would be argued. His position was simple. He submitted that the husband and wife came to the Court asking for an endorsement that their agreement was just and equitable and as such, they had a duty to make full and frank disclosure of all of their relevant circumstances. Thus, he submitted, the husband and wife had to support their proposed orders first and then X Firm would not only respond to that application and show why it was not just and equitable to make the orders but also then make their claim.
Underlying X Firm’s position was the submission that for X Firm to present its case, it needed to know what the settlement was between the husband and wife so that it could determine its position.
Whilst all of this might be semantics, there can be little doubt that the protagonists all know what it is that they are fighting about. It is apparent that the husband and wife know that X Firm is asserting that actions were taken by the husband and wife which is said were done to avoid the wife paying them. It is equally apparent that X Firm knows that the husband and wife have reached an agreement under which the settlement would mean that the wife could not pay the sum sought by X Firm. All of those positions can be gleaned from the various arguments that have been put throughout 2014 by all parties.
Having said that however, it is conceivable that one or all of the parties may have changed their position. To avoid that being a future problem, I consider that a “pleadings” approach would be useful. None of the parties seemed to disagree with that concept although I remain unconvinced whether that had changed the position of anyone.
I consider the most efficacious way of dealing with this case is to take an old-fashioned two step approach. First, a statement should be made setting out the orders sought and the material facts that support those orders. Once all of those documents have been filed, the second step can be undertaken which is to file the necessary affidavit material which is said to prove those material facts. Whilst this may be old-fashioned or perhaps in the opposite sense, revolutionary, I consider that it can and should be done in this case and that it is a course contemplated within the rules of the Court.
The Family Law Rules 2004, like all rules of court, are designed to assist in the smooth operation of litigation. The main purpose of those rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties as well as to the court that is reasonable in the circumstances of the case (rule 1.04). The court is required to apply the rules to promote the main purpose, and actively manage each case. One such management tool is to identify the issues in dispute early in the case and separate and dispose of any issues that do not need full investigation and trial (rule 1.06(c)). Where a specific practice which can be seen to assist the efficacy of the Court’s work, orders can be made for practice and management purposes (rule 1.09).
The requirement for the concentration of issues can also be seen in the rules. Parties are required in their applications to give full particulars of the orders sought and include all causes of action that could be disposed of conveniently in the same case.
The power to order a party to provide particulars and the basis on which orders are sought can be seen in rules 11.01 and 16.04.
There is little doubt therefore that the Court can exercise its discretion about what is filed relating to orders pursued and when. In respect of the second step that I mentioned, rule 15.71 permits the Court to determine the order of examination of witnesses.
The husband and wife began the proceedings between themselves and wanted to conclude them with an order. As is well known and has been previously said, s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) requires that the Court must not make orders altering the interests of the parties unless it is satisfied that the orders are just and equitable. Thus, notwithstanding the accusations of X Firm, the husband and wife should put that material first whereupon X Firm should point to the evidence as to why those orders are not just and equitable. At the moment, because of s 79(10) the jurisdiction for X Firm to seek orders is enlivened and as I earlier said, it is not entirely clear what precise orders are sought and what jurisdiction and power is sought that the Court exercise. Thus, X Firm should place those issues clearly in writing (notwithstanding that it is said that those are found in a written submission from January 2014).
The timetable should then simply follow with the second step of the filing of affidavits and the husband and wife can presume that having received the pleading of X Firm, an endeavour will be made to establish what it wants to prove by that evidence. To the extent that the husband and wife need to reply to that affidavit material, the timetable so provides.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 June 2014.

Associate:

Date: 25 June 2014