O'Malley and O'Malley (No. 3)

[2008] FamCA 1185

FAMILY COURT OF AUSTRALIA

O’MALLEY & O’MALLEY (NO. 3) [2008] FamCA 1185

FAMILY LAW  -  PROPERTY  -  failure by applicant to comply with trial directions  -  application by respondent for undefended hearing

Family Law Act 1975 (Cth)

HUSBAND Mr O’Malley

WIFE: Ms O’Malley

FILE NUMBER: MLF 2831 of 2006

DATE DELIVERED: 15 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 December, 2008

REPRESENTATION

THE HUSBAND In person

COUNSEL FOR THE WIFE Mr T.J. Puckey

SOLICITOR FOR THE WIFE Taussig Cherrie & Assoc

Orders

1. That at or before 12:00 noon on Wednesday 17 December, 2008 the husband file and serve the following documents :

   (a)a letter, setting out with specificity the final orders sought by him in these proceedings;  and

   (b)a form 13 statement of financial circumstances. 

2. That the husband have leave to give oral evidence in chief which, subject to any order of the trial judge, shall be of no more than thirty minutes duration. 

3. That the further hearing of all extant applications be adjourned to 10:00 am. on 19 December, 2008. 

4. That the wife’s costs of this day be reserved.

5. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2831 of 2006

MR O’MALLEY

Husband

And

MS O’MALLEY

Wife

REASONS FOR JUDGMENT

1. This case has a long and chequered history.  The proceedings before this court commenced in September 2006, when the husband filed an application seeking final property and parenting orders.  They have been before the court on numerous occasions since then, sometimes before me, sometimes before other judicial officers.  There have been an unusual number of interim hearings, including applications for spousal maintenance, applications for interlocutory orders in the property proceedings, and applications occasioned by a pattern of noncompliance with court orders. 

2. On a number of occasions, orders have provided for a registrar to sign certain documents if the husband himself failed to do so, as ordered.  On each occasion, the judicial scepticism behind those orders was warranted and a registrar had to sign the documents.  Referring to this today, the husband expressed the view there was no reason for him to sign (as ordered), because a registrar would do it if he did not.  That nicely illustrates his attitude to the proceedings generally, and to his obligation to comply with court orders. 

3. There have also been proceedings in the Supreme Court, brought by the NAB alleging mortgage default. Although those proceedings have settled in principal, NAB having been paid the nett proceeds of a number of real properties, sold pursuant to orders of this court, the solicitor for the husband in the Supreme Court proceedings still requires him to sign certain documents to finally conclude them. Indeed, via the solicitors for the wife in these proceedings, that solicitor asked this court to order the husband to sign the settlement documents in the Supreme Court case.  It would not be appropriate to do so. 

4. The husband was represented in these proceedings, from the outset. On 1 October, 2008 the court received a notice of ceasing to act from his then solicitors. They may have ceased to act for him a little earlier, as the matter was before Watts J on 25 September 2008, on yet further default applications, and at that time the husband appeared in person. Watt J ordered that within 48 hours of presentation to the husband he sign a number of documents in relation to a property in A Street, C. He put in place a default clause, pursuant to s.106A of the Family Law Act 1975, and in due course, yet again, that default clause had to be implemented.

5. On 7 August 2008 I made a number of orders, aimed at getting the case ready for trial. By 28 August the parties were to prepare a list of documents in accordance with rule 13.22 of the Family Law Rules. Orders provided for inspection of such documents. The husband was to file and serve an amended application by 12 September 2008, and the filing regime after that was posited on that occurring. That has never occurred. The parties were to serve all affidavits on which they intended to rely by 24 November. Orders provided for valuations of a number of items. Not one order has been complied with by the husband. The wife has filed material for trial setting out the orders she seeks, affidavit material and a financial statement.

6. Today the wife seeks that the case proceed on an undefended basis.  In essence, her counsel relies on the husband’s long history of non-compliance.  What the husband says today has all been said before, on numerous occasions;  that is, given time, he will comply with orders.  Clear directions were given in August this year, and he has had numerous opportunities to put material before the court and comply with orders for discovery.  He is acting for himself, as do many litigants in this court, and whilst the court must ensure procedural fairness is granted to all litigants, its job is not to prejudice those who are legally represented by allowing litigants in person to take advantage of their status. 

7. However tempting it is, I do not propose to order an undefended hearing today.  That might well be a pyrrhic victory for the wife, in the long run.  I will require the husband to file and serve a letter (not a formal application) by 12 noon on 17 December – that is Wednesday - setting out with specificity the final orders sought by him, and a statement of financial circumstances.  The court has provided him with a copy of that form.  I will grant him leave to give oral evidence for a maximum of 30 minutes, subject to any other order of the trial judge.  I will deal with any applications to adduce documents in the trial as they arise.  I will adjourn the trial to 10:00 am. on Friday, 19 December.   

I certify that the preceding
7  paragraphs are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the           day of            2009.
Associate.