O’Cleary & Vukasin
[2024] FedCFamC1F 472
•10 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
O’Cleary & Vukasin [2024] FedCFamC1F 472
File number: SYC 4005 of 2020 Judgment of: CAMPTON J Date of judgment: 10 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife filed an Application in a Proceeding seeking leave to extend the time for filing of affidavit material for trial – Where the husband seeks leave to extend the time for filing his Response to the wife’s Application in a Proceeding, and for the wife’s Application in a Proceeding to be dismissed – Where the husband has not demonstrated material prejudice should the indulgence of leave be afforded to the wife – Time for the wife to file affidavit material extended on the condition that she pay the intervener’s costs and 50 per cent of the costs of the husband – Time for the intervenor to file an affidavit in reply extended. Legislation: Federal Circuit and Family Court of Australia Act (Cth) ss 67 and 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, r 1.04
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 10 July 2024 Place: Sydney Counsel for the Applicant: Ms Carr Solicitor for the Applicant: Juris Cor Legal Counsel for the Respondent: Mr Levitt Solicitor for the Respondent: Jeffrey Choy Legal Solicitor for the Intervener: Newnhams Solicitors ORDERS
SYC 4005 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS O’CLEARY
Applicant
AND: MR VUKASIN
Respondent
MR PASSERINI
Intervener
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
10 JULY 2024
THE COURT ORDERS THAT:
1.Leave be granted to the wife to extend the time, as previously ordered by Justice Campton in order 4 of his orders of 23 February 2024, to file, serve and rely upon the following documents to 21 June 2024.
The affidavit of Ms O’Cleary affirmed on 17 June 2024 and the Exhibit MO-1 to the said affidavit, served on the First Respondent on 17 June 2024 and the Second Respondent on 18 June 2024.
The affidavit of Ms B affirmed on 290 June 2024 and filed and served on 21 June 2024.
The affidavit of Mr C affirmed on 20 June 2024 and filed and served on 21 June 2024.
The affidavit Mr D affirmed and filed on 21 June 2024 and filed and served on 21 June 2024.
The financial statement of Ms O’Cleary affirmed and filed on 17 June 2024 and served on the First Respondent on 17 June 2024 and served on the Second Respondent on 18 June 2024.
The undertaking as to Disclosure of Ms O’Cleary filed on 17 June 2024 and served on the first Respondent on 17 June 2024 and served on the Second Respondent on 18 June 2024.
2.As a condition of the leave provided for in Order 1 above:
(a)The wife pay the costs of the second respondent in the sum of $2435.81 within 14 days of the date of these orders;
The wife pay 50 per cent of the husband’s costs of and incidental to the determination of the Application in a Proceeding as agreed or as assessed on a party and party basis, such process and or agreement to be a matter for the parties, such costs to be paid not earlier than 28 days after any final adjustive property order is made as between the husband and the wife.
3.The time for the second respondent to comply with Order 5 made 23 February 2024, be extended until 31 July 2024.
4.In the event the parties achieve a compromise of all or part of the litigation prior to trial they have leave to submit any draft consent orders to chambers for consideration.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Cleary & Vukasin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are substantive property proceedings commenced by the wife on 22 June 2023. The proceedings have been in my docket for some time and have been the subject of criticism as to the parties’ conduct in the litigation and specifically as to failing to comply with the mandates in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act (Cth), r 1.04, with other parts of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), and as to being delinquent in filing material as directed, as recorded in the notations to orders made 21 November 2023.
It is self-evident that proceedings in the Major Complex Financial Proceedings List require proactive engagement by parties with the Rules, and compliance with crafted orders and directions. Litigants and practitioners engaged with the list are required to comply with directions individually designed to scaffold and particularize the fundamental integers of the specific property dispute. It is not an environment for the inefficient, the unprepared, or the inattentive. This financial dispute between the wife and the husband is complicated by the engagement of the intervener, who claims a significant portion of what the wife contends is the property of the parties.
The proceedings were provisionally listed for trial over five days commencing 9 September 2024. Comprehensive and detailed trial directions were made on 13 December 2023. Subsequent trial directions made 23 February 2024 confirmed the allocated trial dates to be dependent upon:
(a)The parties engaging in a private mediation. That mediation has been fixed for 13 August 2024; and
(b)Compliance with the timetable for filing of trial material as ordered 23 February 2024.
By way of Order 4 made on 23 February 2024, each of the husband and the wife were to file trial material on or before 19 April 2024. Order 5 made that day permitted the second respondent an opportunity to file any trial material strictly in reply to the affidavits of the husband and the wife on or before 13 May 2024.
Other orders made on 23 February 2023 were directed to the updating of single expert opinion evidence. I am told today that the single expert opinion evidence has been published and is available to the parties save the report of the single accounting expert, Ms E. Some disquiet exists at the bar table as to whether her report will be completed in adequate time for the trial.
The wife failed or neglected to comply with the direction to file her trial material on or before 19 April 2024.
The proceeding was re-listed for further case management before me on 18 June 2024. The parties were reminded as to the consequences of a failure to comply with the Rules and/or directions or orders made by the Court. Directions were made on that day for the wife to file an Application in a Proceeding on or before 21 June 2024, supported by an affidavit, should she seek to extend the time for her to comply with the prior directions by 23 February 2024 to adduce affidavit evidence for trial.
The wife filed an Application in a Proceeding seeking that relief on 21 June 2024. By way of that document, she sought the following orders:
1. Leave be granted to the Applicant to extend the time, as previously ordered by Justice Campton in order 4 of his orders of 23 February 2024, to file, serve and rely upon the following documents to 21 June 2024.
(a) The affidavit of [Ms O’Cleary] affirmed on 17 June 2024 and the Exhibit [MO]-1 to the said affidavit, served on the First Respondent on 17 June 2024 and the Second Respondent on 18 June 2024.
(b) The affidavit of [Ms B] affirmed on 20 June 2024 and filed and served on 21 June 2024.
(c) The affidavit of [Mr C] affirmed on 20 June 2024 and filed and served on 21 June 2024.
(d) The affidavit [Mr D] affirmed and filed on 21 June 2024 and filed and served on 21 June 2024
(e) The Financial Statement of [Ms O’Cleary] affirmed and filed on 17 June 2024 and served on the Frist Respondent on 17 June 2024 and served on the Second respondent on 18 June 2024.
(f) The Undertaking as to Disclosure of [Ms O’Cleary] filed on 17 June 2024 and served on the Frist Respondent on 17 June 2024 and served on the Second respondent on 18 June 2024.
2. The Applicant Wife to pay the costs of the Respondent Husband and the Second Respondent Intervenor of 10 July 2024.
The husband, by way of a Response to an Application in a Proceeding filed 9 July 2024, that is yesterday, sought himself an indulgence to extend the time to comply with a prior direction to engage by response with the wife’s Application in a Proceeding. If he achieved leave, he sought that the wife’s Application in a Proceeding be dismissed.
The intervener filed a Response to the wife’s Application in a Proceeding within the prescribed time, on 28 June 2024. He neither consented to, nor opposed, the relief sought by the wife in her Application in a Proceeding. In the event leave was granted, he sought an extension of time to file affidavits in reply, consistent with the regime provided for in the trial directions. He otherwise sought, as a condition of the indulgence of leave as sought by the wife, an order that the wife pay his costs in the sum of $2435.81.
The wife agrees to the quantum of costs sought by the intervener as a condition of leave. Insofar as the wife agrees to costs being paid to the husband as a condition of leave, the husband has not identified, for the purposes of the hearing today, the value of his costs incurred in his belated responding to the application in a proceeding.
The exercise of discretion in affording the wife the indulgence as sought in her Application and Proceeding pivots upon prejudice the husband will suffer should leave be afforded to the wife.
The husband’s affidavit material contains substantial complaint as to the wife’s alleged failure to comply with her obligations of disclosure as codified in ch 6 of the Rules over the years of the litigation. The submission attract little weight. A complaint as to disclosure failures ought to be properly ventilated at trial. He further submits that the wife’s failures to comply with the trial directions are not isolated to this occasion, her failure to comply with other directions have been often and long-standing. He submits that such conduct ought to weigh against the wife in the exercise of discretion.
The husband says that his affidavit filed in compliance with the trial directions was a substantial document, and that he suffers a forensic disadvantage by the wife having the opportunity to be “informed” as to his affidavit material insofar as it relates to her affidavit evidence as now sought to be adduced. He submits that the wife’s affidavit is, “in effect, an affidavit in reply,” such that the wife has been able to “pick and choose” the issues that will be the subject of controversy at trial. The husband’s case is that he has disclosed all relevant documents and information relevant to contested issues at trial. Should that be correct, then rhetorically, how he would suffer a forensic disadvantage by his affidavit containing material that ought to have been known to the wife or provided to the wife? The import of this submission is somewhat unclear.
He submits that he is the respondent to the matter and hence he suffers a disadvantage because of the fact he ought have had to respond to the wife’s claim, and not adopt the role similar to that of an applicant. I reject this submission. By way of his Further Amended Response to an Initiating Application filed 14 December 2023, he too is an applicant for orders as to property adjustment. Both the husband and the wife seek that a property adjustment discretion be exercised in circumstances where their continued joint use of property after their separation has come to an end. They are both applicants for property settlement. The dispute is that they cannot agree to its terms.
The husband says that he has suffered some prejudice because he may need to test, by way of further forensic procedures, such as subpoena, the evidence contained in the wife’s belatedly filed affidavit material. That said, he has had the material for close to three weeks and has had every opportunity to issue such subpoena as he would consider appropriate over that period. As he has not done so, I give this submission little weight.
In all of the circumstances, I am not satisfied that the husband has established a material prejudice so as to, in effect, shut the wife out of prosecuting a case for property adjustment by way of a trial process.
In those circumstances, I propose to grant the wife the leave she seeks in paragraph 1 of her Application in a Proceeding file 21 June 2024. A condition of that leave will be that she pays the agreed costs of the second respondent within 14 days from the date of these orders.
As to the husband’s costs of the indulgence of leave, it is relevant that the husband did not adopt an approach of either agreeing or submitting to the wife’s relief in her Application in the Proceeding. To my mind, his absence of success in opposing the wife’s material today is a relevant factor to consider in making such cost order as is just. An order will be made as a condition of the wife’s leave to adduce the further material for the purposes of the trial, that she pay 50 per cent of the husband’s costs as incurred on a party and party basis, as agreed or assessed. Such costs are to be payable 28 days after the date any order adjusting property is made as between the husband and the wife. The reason for the delay in the provision of the assessment and payment of costs is self-evident in circumstances where it may be necessary to inspect a solicitor’s file for the purposes of an assessment of costs and such process would be problematic in the shadow of the trial.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 10 July 2024
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