Melville & Dent - [2008] FamCA 926

FAMILY COURT OF AUSTRALIA

MELVILLE & DENT

[2008] FamCA 926

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – basis for seeking to proceed undefended – lack of compliance with orders and obligations of disclosure

Family Law Act 1975 (Cth)

Brown & Brown [2004] FamCA 1067
State of Queensland v JL Holdings 189 CLR 146
Tate v Tate (2000) FLC 93-047
Zane & Allan [2008] FamCAFC 115

APPLICANT:

Ms Melville

RESPONDENT:

Mr Dent

FILE NUMBER:

MLF

3157

2006

DATE DELIVERED:

31 OCTOBER 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

28 OCTOBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR STRUM

SOLICITOR FOR THE APPLICANT:

MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT:

MS CAMPBELL

SOLICITOR FOR THE RESPONDENT:

FORTE FAMILY LAWYERS

Orders

That all outstanding applications be adjourned for final hearing before me as the FIRST case in the list of defended matters for the period of 4 days commencing on 27 January 2009 at 10 am as a 1-2 day matter.
That the matter be listed for mention before me at 9 am on 12 January 2009 as to the issues of readiness and in particular, the husband’s compliance with orders.
That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.
That by 4 pm on 28 November 2008 the applicant file a document setting out with precision what orders are being sought.
That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 28 November 2008.
That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:
(a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or
(b) refer the case to me for directions as to its future management;
(c)return the case to the Registrar’s docket on a date to be fixed for further management
AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.
That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 23 January 2009 the following:
(a)a concise set of orders to be sought if different from those already filed;
(b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;
(c) a list of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Melville & Dent [2008] FamCA 926
Case: [2008] FamCA 926
Decision Date: 31 October 2008

CaseChat Overview and Summary

This matter came before Cronin J concerning applications made by the parties, identified as Melville and Dent. The precise nature of the dispute is not detailed, but the orders indicate it involves defended matters, compliance with previous court orders, and the resolution of financial and asset-related issues, likely within a family law context given the references to husband and wife.

The court was required to determine the procedural steps necessary for the efficient and orderly progression of the case towards a final hearing. This included setting timelines for the filing of specific documents, such as precise orders sought and summaries of argument, as well as the payment of trial fees. The court also needed to address the management of the case by docketed registrars and establish a framework for dealing with non-compliance with court orders by any party.

Cronin J applied principles of case management to ensure readiness for trial. The reasoning involved setting clear obligations for each party, including the precise identification of relief sought and the preparation of evidence and arguments. The court emphasised the importance of compliance, outlining consequences for default, which could range from striking out the case to proceeding on an undefended basis. Liberty was granted to approach the registrar to vary obligations, fostering flexibility within the established framework. The court also made specific orders regarding the inspection of assets and the provision of cost statements.

The court made several orders, including adjourning outstanding applications for a final hearing commencing on 27 January 2009, and listing the matter for mention on 12 January 2009 to address readiness and compliance. Specific directions were given for the filing of documents, payment of fees, and the appointment of docketed registrars. The court also reserved the wife's costs of 28 October 2008 and made orders for the inspection of chattels.

Orders

Orders of the court

That all outstanding applications be adjourned for final hearing before me as the FIRST case in the list of defended matters for the period of 4 days commencing on 27 January 2009 at 10 am as a 1-2 day matter.

That the matter be listed for mention before me at 9 am on 12 January 2009 as to the issues of readiness and in particular, the husband’s compliance with orders.

That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.

That by 4 pm on 28 November 2008 the applicant file a document setting out with precision what orders are being sought.

That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 28 November 2008.

That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

(a) If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

(b) refer the case to me for directions as to its future management;

AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 23 January 2009 the following:

(a) a concise set of orders to be sought if different from those already filed;

(b) a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

(d) a bullet-point summary of argument in relation to the issues in dispute.

That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

10.

The wife’s costs of 28 October 2008 are reserved.

11.

That the husband, his servants or agents, make available for inspection by the appointed representatives of the wife, the watches, gold coins, chattels and artwork referred to in his financial statement.

12.

That the wife make available for inspection by the husband the chattels referred to in her financial statement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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