Orwell and Hogan

[2017] FamCA 145

FAMILY COURT OF AUSTRALIA

ORWELL & HOGAN [2017] FamCA 145

FAMILY LAW – INTERLOCUTORY – self-represented parties in property dispute – issues of discovery unresolved – options canvassed with parties – cross-examination permitted – matter set to continue for trial.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Orwell

RESPONDENT: Ms Hogan

FILE NUMBER: MLC 11219 of 2015

DATE DELIVERED: 24 February 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 February 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

At the wife’s election, either the husband sign such authority to the Australian Taxation Office for the wife to confirm that the returns (which will be attached to her letter to the Australian Taxation Office) are the returns lodged or alternatively, the husband provide to the wife the Australian Taxation Office confirmation document as to the returns so lodged.

1. That the wife make available to the husband this day at 5.00pm, those chattels agreed to be provided in court this day.

2. That within 21 days, the husband provide to the wife a list of any chattels not collected this day which he says are in the possession, power or control of the wife and which he seeks as part of the property settlement.

3. That within 21 days, the husband provide to the wife the copy of the last lease(s) executed in respect of the real property(ies) said to be owned by the self-managed superannuation fund of the parties.

4. If the wife so request, the husband provide to the wife, the details of payments to any employees of Orwell and Associates Pty Ltd in relation to the employment connected with Company L.

5. Within 21 days, the wife provide to the husband all documents in her possession, power or control as described in paragraphs 1.1, 1.2 and 1.3 of the husband’s response to her application in a case (such response being filed on 17 February 2017).

6. That the reasons for judgment this day be transcribed and be made available to the parties.

7. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 26 June 2017 subject to any part heard case as a three day case.

8. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

9. By 4 pm on 13 April 2017 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)all affidavits of evidence to be relied upon; and

   (c)a financial statement.

10. The applicant pay all required court fees by 4 pm on 13 April 2017.

11. By 4 pm on 19 May 2017 the respondent file and serve upon all other parties:

    (a)     an amended response setting out with precision the orders to be sought;

    (b)     all affidavits of evidence to be relied upon; and

    (c)     a financial statement.

12. By 4 pm on 26 May 2017 the applicant file and serve any affidavit in reply.

13. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

14. By 4 pm on 22 June 2016 all parties file electronically to … a case outline in one document setting out:

    (a)    the outline of the issues in dispute;
    (b)    the list of the affidavits to be read;
    (c)    a concise set of orders to be sought;
    (d)    the list of objections to evidence requiring a ruling;
    (e)    a list of assets and liabilities.

AND THE PARTIES SHOULD NOTE:

A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orwell & Hogan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11219 of 2015

Mr Orwell

Applicant

And

Ms Hogan

Respondent

REASONS FOR JUDGMENT

1. This application arises out of a hearing that I conducted some weeks ago in anticipation that the Court was listing the parties’ respective applications for property settlement for final trial.  Both parties are representing themselves. 

2. At the last hearing it became apparent that there are interlocutory disputes which have remained unresolved for a long time.  I gave both parties an opportunity to file their respective applications seeking precise orders supported by affidavits returnable today, and indeed both parties have done that. 

3. I have gone through each of the respective applications because the parties are both self-represented.  In respect of the orders sought by Ms Hogan, Mr Orwell responded by affidavit saying that he had provided all of the documents that she had sought.  But, as it transpired, she maintained there was a raft of things that had not been provided or indeed, she was not confident that they were accurate. 

4. After much debate, the only solution seemed to me to have the applicant have an opportunity to cross-examine Mr Orwell and she did that.  Even taking into account the fact that both parties are not lawyers, that cross-examination did not advance the matter further.

5. As I have indicated on a number of occasions, it is not the function of this Court to run parties’ cases, nor is it the function of a judge to give advice to parties.  If the parties will not seek advice there is not much the Court can do about it.  I have done the best I can today to try and isolate what is in dispute, and each party clearly has a view about the truthfulness of the other. 

6. I have indicated the three options in relation to disputed discovery, the first of which is to undertake cross-examination.  That has occurred.  The second is to pursue through other interlocutory processes provided under the rules but that does not seem to have resulted in anything in any event.  The third option is to conduct the trial on the basis that documents are being hidden or assets are not being properly provided.  Just so there is no misunderstanding about the situation, there is no excuse for any party who fails to make adequate discovery. 

7. Any failure to comply with not only discovery obligations but also court ordered discovery, can result in adverse inferences being drawn against that party but also an opportunity for the Court to exclude the recalcitrant party from participating.  With that warning, it seems to me that both parties still have a way to go, but each has indicated that they want this trial over and done with. 

8. Both parties have shifted ground in respect of the orders they are seeking, and notwithstanding Ms Hogan describes this dispute as a complicated one, it is relatively modest.  What is not simple is just what assets are being divided.  That is where the discovery process comes in, but there is little more that I can do in this case other than indicate that the parties have had their chance.  It is time for the Court to say the case should be heard based upon the evidence that the parties present.

9. As I also observed in discussion, there is a very big difference between information and evidence.  Evidence is what the law under the Evidence Act 1995 (Cth) describes as matters that would make a probative difference to an issue in dispute and the parties would do well to examine sections 55, 56 and 57 of the Evidence Act. So too they would be well advised to have a look at the relevant provisions of Part VIII of the Family Law Act 1975 (Cth) in respect of how the Court actually divides the respective assets of the parties.

10. Ms Hogan has consistently referred to the “matrimonial pool of assets”, and I have again indicated to her there is no such thing.  The Court is mandated to alter the interests of parties in assets of either of them.

11. In respect of the discovery issue, there is little more that I can do other than make orders in relation to Mr Orwell providing a copy of any last lease that has been executed in respect of the real property or properties said to be owned by the self-managed superannuation fund.  He concedes that there may be a lease somewhere around although it was a year to year basis and therefore it may not be current.  The currency of that lease is not the relevant issue, but rather the fact that a lease existed.  What difference that would make to any issue in dispute escapes me at the moment, but no doubt Ms Hogan has some plan in mind.  It seems to me that 21 days ought to be ample time for Mr Orwell to find any former lease.

12. So too there is a dispute between the parties over whether or not Mr Orwell has an interest in a business that Ms Hogan says is shown by a website that she has come across.  The website makes no reference to the corporate entity in any detail, and certainly it is confusing as to whether or not Mr Orwell has any interest.  He denies any such interest and indicates that to the extent that he has any association with that organisation, it is through engaging them to do work when so required, but, in those circumstances, he says they would be employees.  Notwithstanding Ms Hogan has not so requested, it seems to me logical to indicate that if she does request him to provide details of the payments to any employees then he needs to provide that as well.

13. There are a number of other allegations in relation to trusts and self-managed superannuation funds, but the evidence is far from clear as to who has those assets under their control, and indeed what documentation there is that would establish things one way or the other. 

14. Mr Orwell concedes that the returns for both the trust and the self-managed superannuation fund have not been done for the last couple of years, and to that end, he concedes that the self-managed superannuation fund is probably non-compliant. 

15. The parties would do well, and I am sure Mr Orwell is aware of this, to fix that problem relatively quickly before the Australian Tax Office takes control, because it may mean that they lose the asset completely.  It is always a dilemma for the Court in relation to self-managed superannuation funds when the fund is non-compliant, because the Court is being asked to alter an interest in an asset that may not, in fact, exist very shortly thereafter.

16. In relation to the trust, there is a blurring of the boundaries which is not surprising for someone who does not have legal training, between the ownership of an asset within the trust and the control of the trust, including particularly, the entitlement of a beneficiary of the trust to more than the due administration of that trust.  Just exactly what is happening here is unclear, but it would seem from the application for orders by Mr Orwell that he is, aware that in relation to the superannuation fund, Ms Hogan has documents in her possession.  Indeed, she concedes that but does not want them disgorged because she says that Mr Orwell will do something by way of lodging returns to her disadvantage.  That emotive argument does little in relation to the legal issue, and it seems to me there is no basis for me to reject Mr Orwell’s application for the production of those documents. 

17. Ms Hogan says from the bar table that some documents are not in her power, possession or control and to that end she would simply need to say that, to the extent Mr Orwell disputes that issue, he no doubt has his remedies in that same way that she does in respect of the documents that she says are in his possession, power or control.

18. In respect of a final trial altering property interests, in circumstances where the Court’s role is to quell a controversy rather than participate in it, these parties are going to have some significant difficulty establishing just exactly how that should be done if they do not get proper advice.  I make that warning again on the basis that the very first step in most property proceedings is to determine what is admissible evidence and what is not.  That warning relates to the fact that if a party attends and objects to evidence on proper grounds as to admissibility (as distinct from weight), then a Court may strike out the offending parts of an affidavit, leaving that party without the evidence that they thought supported the arguments and the orders that they were pursuing.  It is difficult, then, for that party, having been given this warning, to then seek an adjournment to rectify the problem that they currently have. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 February 2017.

Associate: 

Date:  14 March 2017