Phillips & Phillips

[2007] FamCA 1613

FAMILY COURT OF AUSTRALIA

PHILLIPS & PHILLIPS [2007] FamCA 1613

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where bulky affidavits on both sides filed within days of court event – Where counsel has had inadequate time to review material – Adjournment granted

Family Law Act 1975 (Cth)

APPLICANT: Mrs Phillips

RESPONDENT: Mr Phillips

FILE NUMBER: BRC 10818 of 2007

DATE DELIVERED: 14 December 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 14 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston of Counsel

SOLICITORS FOR THE APPLICANT: Andrew Wiltshire Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kirk of Senior Counsel

SOLICITORS FOR THE RESPONDENT: Philippa Power

Orders

1. The proceedings are adjourned for hearing of the Husband’s Application in Form 2 filed 31 October 2007 to 10.00 am on 22 February 2008.

2. Costs reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10818 of 2007

MRS PHILLIPS

Applicant

And

MR PHILLIPS

Respondent

REASONS FOR JUDGMENT

1. I will read my reasons for judgment into the record.

2. On a date which Americans refer to as 9/11 but which in Australia is referred to as 11 September, the wife filed an application seeking leave to re-open property settlement proceedings pursuant to s 79A(1)(a).  She is seeking that the consent orders entered into on 31 January 2002 be set aside and pursuant to other paragraphs she is seeking that a binding financial agreement which was entered into at the same time also be set aside.

3. The parties divorced in 2003 but for the sake of convenience I shall refer to them as the husband and wife respectively.  They married in Las Vegas in December 1987; they separated either on 30 December or 31 December 2001.  As I have noted, they entered into consent orders on 31 January 2002, only a month after separation.  The binding financial agreement was dated at the same time.

4. The husband filed a response to the wife's application seeking that her application under s 79A be dismissed.  He sought a further order that the husband be relieved from compliance with the Family Law Rules in respect of filing any further material including a financial statement until the application in a case filed concurrently with this response is dealt with.  He sought orders for costs and any other directions necessary. 

5. The husband filed on 11 December, a form 2 application seeking the following orders:

   “1) That the wife's application filed on 11 September 2007 be struck out;

   2) That in the alternative to Order 1:

   a) the wife file and serve within 14 days full particulars of her claim in respect of -

   i)         the consent order dated 31 January 2001 being set aside;

   ii) the binding financial agreement dated 31 January - it says 2007 but I am sure that is a typographical error - being set aside, and  

   b)the husband be relieved from compliance with the Family Law Rules in respect of filing any further material including a financial statement until the wife complies with Order 2A of this application.”

6. Paragraph 2A provides, in the alternative to paragraph 1, the wife file and serve on or before 16 March 2008 all expert valuation evidence upon which she shall seek to rely in respect of the alleged undervalue by the husband as at December 2001, January 2002 of his interests in the following properties - and then there is tabulated a series of properties which were the subject of the consent orders which properties the parties owned at the relevant time the consent orders were made.

7. Various other orders were sought but I do not need to canvass those for the purpose of the current application.

8. The wife filed an affidavit pursuant to the orders made by the Registrar dated 27 November and in that affidavit at paragraphs 29 and 30 she says:

   "29.  I am now aware that [the husband] suppressed certain information from me, failed to make proper disclosure of all financial circumstances and presented the financial circumstances in a manner designed to mislead me as to the value of the matrimonial property pool.

   30.   I am also of the view that [the husband]'s conduct leading up to the execution of the binding financial agreement and consent orders was such that I felt as though I had no alternative but to consent to the property settlement on the terms proposed by [the husband]."

9. I do not wish to be seen to be pre-judging any issue but if she can establish the matters set out as alleged in paragraph 29, she would have an arguable case to have the consent orders set aside.

10. Upon receiving the affidavit document the husband quite properly indicated he would not be proceeding with Order 1 of his application to have the wife's application for final orders summarily dismissed.  He filed a very substantial affidavit in conjunction with this application and counsel for the wife on today's date seeks an adjournment of the hearing in relation to the husband's application.

11. Counsel for the wife says that he informed the husband's counsel that he would be absent from Brisbane for the greater part of this week as a result of other commitments which he could not alter, and he only returned to Brisbane last evening, presumably to be met by the very substantial affidavit. The wife's counsel says he is not in a position to meet the case today.  He summarises his position by saying he came to Court today to argue a pleading point, not an evidentiary point.

12. The husband's counsel has prepared written submissions in relation to the application of his client and he notes that as far back as 7 August 2006 the wife, through her solicitors, forwarded a letter to the husband alleging a miscarriage of justice in relation to the original consent orders by reason of certain property being undervalued in the property division.  The wife says this arose because the husband suppressed information and presented the financial circumstances in a manner designed to mislead her but as I understand it, ultimately the misleading conduct relates to the undervaluation of the value of the subject properties.

13. When he received that letter the husband obtained valuations of all the relevant properties and I accept the submission made that they appear to be valuations obtained from reputable experts. That evidence would indicate that the valuations used by the parties for the purpose of the consent orders in 2002 were either very close to the mark or in some cases the value the parties placed on the properties was overvalued.

14. I am informed that for the purposes of the consent orders in 2002 the parties did not actually obtain valuations.

15. Counsel for the husband produced a further letter from the wife's solicitors dated 27 April this year - I have marked that as exhibit 1.  That letter from the wife's solicitors indicates that they have reviewed the material that the husband had provided and they had made further investigations and they indicated an intention to proceed with the litigation.  They do not disclose what the further investigations were and that is what counsel for the husband says he is entitled to.

16. The husband's counsel, rather tellingly, submits that the wife has had ample time to particularise her case and produce evidence in support of same and she should be forced to do so.  The wife's counsel says, in effect, that the valuers have given oral advice but detailed written valuations are not available at this point in time.  He expresses doubt whether the wife or her legal team could obtain valuations in the time frame sought by the husband's application, namely a date in early to mid-March.

17. Somewhat reluctantly, I will grant the adjournment as sought.  I intend to adjourn it before myself on 22 February, some nine weeks away.

18. My main reason for granting the adjournment is the husband's application and the supporting affidavit were not filed until earlier this week.  Matters in issue are very significant.  It has a degree of complexity about it and the material is considerable. I accept that the wife’s counsel has not been in a position to attend to this matter until this morning.

19. I note that when the husband's application was filed it was filed in the alternative but it was on the basis that it has only been filed in relatively recent times where the proceedings have been on foot since September.

20. The view that I have taken is that if the position of the wife's counsel be correct, the wife is not fully prepared to meet the application brought by the husband on today's date.  The view that I formed is that there is not a great deal of prejudice to the husband in the eight or nine week delay.  The period of delay is relatively brief in legal terms.  There are some additional costs; a Court can make compensatory orders about that.  I appreciate there is some inconvenience, there is some stress but that is part and parcel of the vicissitudes of life, particularly if one is locked into litigation.

21. The husband is the one who is seeking to depart from standard case management procedures and I believe the wife should be given every opportunity to consider her position further before the matter is adjudicated upon.

22. I note that some of the wife's complaints relate to what I would have thought were matters of enforcement rather than complaints of a miscarriage of justice; for example, in the wife's affidavit paragraphs 284 and following, she says that the household contents were not divided as proposed.  The view that I would take is "so what?"  She had her remedies, it is over five years since the relevant time so why hasn't something been done about it to say "I want my share of the household contents"?  It is hardly a matter that would lead a Court to find a miscarriage of justice. 

23. There is an old maxim in law, "he or she who asserts must prove".  The wife brings this application to re-open proceedings that were concluded back in 2002.  I do not want to anticipate what the submissions or the issues will be on 22 February but I would tentatively express the view that before putting the husband to the considerable legal expense of preparing for trial, it is appropriate he be fully apprised of the case he has to meet.  I also want to comment at this point in time, again without for one moment being seen to pre‑judge any issue in the matter on the statement where the husband's counsel at page 5 of his written submissions (the final paragraph) says:

    "Having regard to the wife's prospects the husband will seek to have the question whether the order and/or the BFA should be set aside determined as a preliminary matter and only if the wife is successful would there need to be a hearing to determine what other order, if any, ought be substituted. However, such a direction should be made at a later time if your Honour is prepared to make the other directions sought by the husband."

24. It is a question whether the parties want the Court to consider that on 22 February or at a later point in time when more fulsome material is before the Court.  It has always been a contentious issue.  I know that some Judges of the Court took the view until one could look at all of the issues in a holistic fashion, it is very difficult to ascertain whether there has been a miscarriage of justice.  However the view that I would express tentatively is it may be appropriate to be determined as a preliminary issue but I will wait to see what transpires.

25. I propose to adjourn the matter to 10 am 22 February 2008; that will be the only matter on that day.  Costs are reserved.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate 

Date: 14 December 2007