Merton and Merton (No. 2)

[2007] FamCA 1665

FAMILY COURT OF AUSTRALIA

MERTON & MERTON (NO. 2) [2007] FamCA 1665

FAMILY LAW – CHILD PROCEEDINGS – PROPERTY PROCEEDINGS – ADJOURNMENT – Application for adjournment of child and property proceedings refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Merton

RESPONDENT: Ms Merton

FILE NUMBER: BRF 4482 of 1999

DATE DELIVERED: 20 June 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 20 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Ms Gilmour, Solicitor,

Graham & Associates

INDEPENDENT CHILDREN'S LAWYER 

Ms McArdle, Solicitor,

Legal Aid Queensland

Orders

1. The independent children’s lawyer prepare a paginated and indexed bundle of documents which she wishes to tender into evidence from the subpoenaed documents and provide a copy to each of the father and the mother by 4pm on 2 July 2007.

2. The father and the mother notify the independent children’s lawyer in writing by 4pm on 4 July 2007 which if any of the following persons is required for cross examination:

   1Ms B

   2Mr I

   3Dr W

   4Ms JN, Department of Child Safety

   5Ms TS, Department of Child Safety

   6Ms BC, Department of Education (Principal, child’s school)

   7Mr LP, Department of Education (Deputy Principal, child’s school)

   8The author of the file note at child’s school, Department of Education

   9Any other person whom the independent children’s lawyer may notify to the parties she wishes to call.

3. The mother file and serve any affidavits by Mr P, Ms HR and Mr J Merton by 4pm on 27 June 2007.

4. The father’s application for an adjournment of the trial is refused.

5. The father has leave to inspect all subpoenaed documents in this matter between 9am and 1pm on 27 June 2007 and to copy the documents produced by Mr J Merton and/or relating to the property at R.

6. The father file and serve any trial affidavits by himself and any witnesses he wishes to call including:

   1Ms L Merton

   2Ms N

   3Mr M

   4Mr L

   5Ms T

   by 4pm on 4 July 2007.

7. The father file a Financial Statement and a Notice of Undertaking as to Disclosure pursuant to Rule 13.15 by 4pm on 4 July 2007.

8. The parties without the leave of the trial judge not be permitted to read or rely on the affidavits or evidence of any other witnesses.

9. The parties each file and serve a summary of argument by 4pm on 6 July 2007.

IT IS NOTED that publication of this judgment under the pseudonym Merton & Merton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 4482 of 1999

MR MERTON  

Applicant

And

MS MERTON  

Respondent

REASONS FOR JUDGMENT

1. The father has applied for an adjournment of this trial set down for five days on 9 July 2007 on the following bases. 

2. First, he said that mediation occurred only a fortnight ago which has prospects of success in relation to settling of the child matter and that the mediation and the negotiation process can proceed at a better pace if there is not the threat of a trial imminent. 

3. He said that he has suffered difficulty in inspecting subpoenaed documents at the Court which he needs to inspect for the trial.

4. He said that to go to trial now would set the parties back in their negotiation process because after having been in the Court system now for about eight years, despite lack of settlement in that period, the prospects of success now are very hopeful and strong. 

5. He said that it would be better if he and the child's mother can agree on living arrangements for the child rather than have them imposed by the Court. 

6. He said further that because of the difficulty he has had obtaining subpoenaed documents from the Court he will now have insufficient time to prepare for trial because of the unavailability to him formerly of the ability to inspect the subpoenaed material.

7. The history of this matter is that child orders were made by the Honourable Justice Bell on 29 October 2004.  An appeal was heard by the Full Court in August 2005.  Judgment was delivered on 22 May 2006 and a retrial ordered. 

RECORDED NOT TRANSCRIBED:

1. The father today has admitted that he received notice of the trial dates either in the last week of April 2007 or the first week of May 2007. 

2. The father, it appears, has failed to date to comply with Court directions as to the filing of material for the current proceedings and today, on his own admission, has told me that he has not filed any affidavits at all. 

3. In relation to the child proceedings, despite what the father has said in relation to the prospects of agreement with the mother, I take into account that presently their applications are widely disparate, the father, in effect, seeking an equal shared care arrangement in relation to the child, … , who will be 10 years at the end of this year, and the mother seeking an order that the child live with her, that she have sole parental responsibility and that any time the child spends with the father be supervised.

4. It seems to me that as the child is nearly 10 and there have been Court cases about her for some years now, it is in her best interests that without any further passage of time there must be the retrial ordered by the Full Court as soon as possible and a determination made as to the parenting disputes surrounding her.

5. I have carefully considered the father's reasons for seeking the adjournment, however, it seems to me that the application for the adjournment should be refused, particularly as the father presently is in default of orders of the Court which bind him.  I have carefully considered the father's complaint that he has not had proper access to subpoenaed documents.  Whether or not that is so I am able to order today that the father, between now and 9 July 2007, have proper and adequate access to inspect the subpoenaed documents.

6. The father mentioned to me that the mediation of which he spoke only concerned the child and that there have not been settlement discussions in relation to property matters which plainly need to be dealt with by the Court. 

7. The father's application for an adjournment of the trial is refused.

RECORDED NOT TRANSCRIBED:

[The husband said his initial application for an adjournment related to the child proceedings only and he had not been heard in relation to his application for an adjournment of the property proceedings.]

1. The husband has made application now for adjournment of the property proceedings component of the trial set down for 9 July 2007. 

2. He says that he will be disadvantaged and unable to prepare for trial of the property proceedings between today and 9 July 2007 because the wife’s solicitors have issued a subpoena to a Mr J Merton in relation to some financial documents which subpoena is not returnable until 22 June 2007 and which, pursuant to directions which I have already made, he will not be able to inspect until 27 June 2007.

3. However, it appears there is only one real property in the pool which is at R.  Apparently there is some issue as to the ownership of that property from time to time.  The mother's subpoena is directed to the solicitors for Mr J Merton to produce documents from their conveyancing file to show ownership and relevant interests from time to time.  However, I put to the husband in argument, if he does not know himself whether and if so when he owned this property, he is quite capable of going to the Department of Natural Resources and obtaining for a modest fee what is called a title search.

4. He said in relation to the ownership of this property, that it is impossible for him, in the time between now and 9 July 2007, to prepare his case about it because he would need to consult and find out about financier's interests and so forth and that he asks only, after all, for a reasonable time to prepare for trial on this issue and any other issues that may be relevant in the property proceedings.

5. However, as has already been established today by his own admission, the husband has had notice of the trial dates from either late April 2007 or early May 2007.  The dates for trial were fixed on 30 March 2007 at a pre-trial conference at which the husband was present by telephone.  Thus, in my view, he has had ample time to attend to his part of the preparation for trial in what seems to be a very modest pool with very few issues. 

6. The husband, I would add, is already substantially in default of orders of this Court requiring him to put on material in relation to the property proceedings in that, by his own admission today, he has filed no material whatsoever, not only despite opportunity but despite Court order that he do so.

7. The husband argues that there is now no possibility of natural justice for him in relation to the property proceedings because of the fact that he is only going to be able to inspect the documents on the solicitor's file on 27 June 2007.  However, the husband overlooks that each party has the right and ability to request the issue of subpoenas for relevant material and, indeed, he acknowledged that he has been aware that he also has had that right and has not availed himself of that right or opportunity.

8. Finally the husband said it would be unreasonable to put him now under the duress of having to meet a trial on 9 July 2007.  However, it seems to me that one of the objects of the Family Law Act 1975 is not only to provide a mechanism for the dispute of matters relating to parties, children and property, but also to ensure that after proper opportunity for litigation there be an end to the parties' financial relationship.  Indeed, that is specified as one of the provisions of the Act. 

9. The husband’s application for an adjournment of the trial relating to the property proceedings is refused.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate 

Date:  20 June 2007