PONDEL and LUMSDEN

[2018] FCWA 91

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975 (Cth)

LOCATION: PERTH

CITATION: PONDEL and LUMSDEN [2018] FCWA 91

CORAM: O'BRIEN J

HEARD: 13 APRIL 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 3869 of 2016

BETWEEN: MR PONDEL

Applicant

AND

MS LUMSDEN

Respondent

Catchwords:

PRACTICE AND PROCEDURE - Where parties have not complied with orders designed to ensure readiness for trial and efficient conduct of proceedings - Where parties nevertheless seek to retain trial listing on basis of assurances that matter will be ready - Importance of compliance with orders - Interests of other litigants and efficient use of Court resources - Trial vacated

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Hedges
Respondent	:	Mr Beckerling

Solicitors:

Applicant	:	Calverley Johnston
Respondent	:	Bannerman Solicitors

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The financial proceedings between the parties are listed for trial commencing before me on 2 May 2018 as a fixed listing. The fixed listing date was given at the request of the parties as the husband is a [dentist] and the wife is a [psychologist].

2Five days were allocated for trial as both parenting and financial matters remained in dispute. To the great credit of the parties, and no doubt with the assistance of those advising them, they have resolved the parenting dispute and final orders have been made by consent, leaving only their financial dispute to be resolved.

3I am advised by counsel this morning that the trial should now occupy two days of court time, but I must say that from the exchanges between the bench and bar table this morning, I harbour a concern that counsel’s estimate may be unduly optimistic.

4The proceedings were listed of the Court’s own motion for a status hearing today, just over two weeks before trial. The purpose of status hearings is to ensure that the matter is ready for trial both for the benefit of the parties concerned in the individual case, and to avoid the significant wastage of limited court time which occurs when matters are not properly prepared and when parties do not comply with procedural orders designed to ensure that their case is made ready in a timely fashion.

5That latter purpose is again two-fold. When parties do not comply with timeframes set by the Court in the lead up to a trial, all too frequently significant judicial time allocated for the hearing is wasted while the parties spend time in the court premises, generally on the first morning of trial, attending to tasks which they were ordered to complete weeks or months earlier.

6The trial judge is kept waiting, albeit no doubt attending to other work in chambers, and the commencement of the trial itself is inevitably delayed. That in turn means that the trial takes longer, its completion is delayed, and the commencement of the next trial waiting in the rolling list is in turn delayed to the detriment of other litigants and counsel. There is self-evidently a cumulative effect of such non-compliance.

7It is entirely unacceptable for parties and those representing them to treat procedural orders and deadlines as no more than polite invitations on the part of the Court to comply, if it is convenient to do so or not too much trouble. Orders and directions of the Court are just that. The Court is entitled to expect compliance unless there is a genuine and reasonable excuse and leave is appropriately sought in a timely fashion.

8Case management principles are never an end to themselves. The interests of justice are the key factor for consideration in any matter where procedural and timetabling issues arise. That said, the Court is clearly entitled and, in my view, often obliged to have regard in the individual case to the interests of other litigants in having their cases heard in a timely fashion and the associated need to use scarce judicial time resources as efficiently as possible without compromising the quality of justice delivered.

9All courts and registries around the country administering family law are under-resourced. While this Court is more fortunate than some, both due to its unique structure and the ever-expanding work taken on by specialist family law magistrates, the fact remains that the Court has the same number of judges as it did 40 years ago. As at this morning, there are over 1200 families whose matters are in the judicial defended list awaiting the allocation of a trial date.

10It is against that background that I must consider the current state of the present proceedings.

11The parties were advised of the listing of this status hearing by letter dated 7 February 2018. A clear direction was included in that letter requiring both parties to attend personally at this morning’s hearing, whether or not they were represented by solicitors or counsel, unless they had complied with all procedural orders and directions.

12That direction is made for a reason. It is critical that parties accept responsibility for the conduct of their own cases. The presence of the parties at a hearing when the trial judge asks pointed questions about non-compliance and readiness is also often useful in assisting those representing the parties to focus more closely on the need for compliance at an earlier stage.

13Both these parties are busy professionals. Bluntly, so am I. The wife, in compliance with the directions made on 7 February 2018, is present in Court, but the husband is not.

14Properly, the husband’s solicitors did the Court the courtesy of requesting by letter, admittedly very much at the last minute, that he be excused from attendance this morning on the basis that he has a [work commitment]. Counsel was unable to tell me whether that work commitment had been scheduled and fully booked prior to or after 7 February 2018. If the work commitment was booked, locked in and full prior to the husband being notified of today’s listing then his request to be excused from personal attendance today would, in my view, have been entirely reasonable, albeit it should have been made much earlier. If, however, he booked his work commitment after being notified of today’s hearing, his absence is unexcused.

15Both parties were ordered to file and exchange their papers for the judge by the close of registry on 11 April 2018. The husband filed his papers for the judge yesterday. I acknowledge that came with an apology for the delay of one day associated with his solicitor having been ill the previous day. The wife has not filed her papers for the judge and no satisfactory explanation has been given.

16In her documents filed at the commencement of the property case, the wife simply said that she sought a settlement which would see her receive 70 per cent of the net assets and superannuation available for division between the parties after all liabilities are taken into account. She was ordered on 22 September 2017 by consent to file a minute of final orders sought by 1 November 2017, together with her affidavit of evidence for trial.

17She filed her trial affidavit on 16 November 2017, but did not file a minute of orders sought. The only explanation given was that she was unable to quantify her claim properly because of asserted failures on the part of the husband to provide adequate disclosure. I am accordingly in a position where I do not know with anything remotely approaching precision what relief is sought by the wife at the looming trial.

18The husband filed an amended application on 19 September 2017, attaching a detailed minute of orders sought. That minute at least indicated the in specie division of assets he proposed; he otherwise proposed overall a 50/50 division. However, when I asked counsel this morning to specify the relevant base amount for the superannuation split proposed to effect such a division, he was unable to do so.

19In her most recently filed schedule of assets and liabilities (which admittedly is somewhat out of date), the wife says the pool available for division is $2.718 million. In his papers for the judge, the husband says it is $3.182 million. No valuations have been obtained, but I note that to the credit of the parties, they appear to have agreed for the purposes of trial the values of the two major real estate assets, the homes in [Suburb A] and [Suburb B].

20What emerged in the status hearing this morning, however, is that there is a live dispute as to the value of an asset not taken into account or included by either party in their schedules filed to date.

21The husband has debtors associated with his practice. He says they are presently in the amount of approximately $340,000. He points out, and counsel for the wife properly acknowledges, that the net value of those debtors will be reduced by the tax payable once the income is received. It may well be that there is also an appropriate adjustment to be made to reflect the possibility or likelihood of bad debts. Neither party has yet done the work to drill down into those matters in order to reach a number.

22The dispute about debtors is not, however, the cause of the disparity between the figures shown by each party on their respective schedules. Counsel’s best understanding of where that disparity may have arisen, it not having been particularly considered by either counsel prior to this morning’s hearing, is that it may reflect a position adopted by the husband in relation to add-backs, which was not adopted in the wife’s schedule.

23The husband’s earning capacity and the extent to which he is properly exercising it is hotly disputed. The parties have spent considerable time, and presumably money, since April 2017 in largely fruitless exchanges about disclosure and, by way of one example only, an ongoing impasse as to who should be responsible for redacting confidential patient information from documents the wife seeks to have disclosed by the husband.

24The husband last filed a financial statement on 20 January 2017. In his affidavit affirmed two days ago, ostensibly for the purposes of updating his evidence-in-chief for the purposes of trial, he said that he “intends to file an updated form 13 financial statement prior to trial”.

25That rather ignores not only his clear obligations under the rules, but the specific order made requiring updating trial materials to be filed 21 days prior to trial. The husband does not deign in his affidavit to tell either the wife or the Court just when he intends to file that updated financial statement.

26The wife last filed a financial statement on 21 April 2017. Her counsel told me this morning that she to intends to file an updating Form 13 prior to trial.

27Neither party filed a financial statement with their affidavit materials for trial. Both counsel pointed out that there was no specific order made requiring them to do so. Neither was able to suggest that that was an intentional omission from what would otherwise be standard orders. Neither cavilled with my suggestion that it may simply have been an oversight on the part of the learned magistrate making the orders, given that at the time the focus was understandably on the parenting case.

28Nevertheless, the absence of a specific order requiring the filing of a Form 13 Financial Statement is irrelevant. The orders made required the parties to file their affidavit material to be relied upon as their evidence-in-chief for the purposes of trial. For obvious reasons, in a financial case that includes a Form 13 Financial Statement.

29The wife has not filed any updating affidavit in compliance with the orders giving her leave to do so. I acknowledge that her counsel confirmed this morning that her failure to do so was a conscious choice and that she does not seek to give updating evidence. That said, when I sought to confirm the witnesses to be relied upon at trial, counsel for the wife told me that his instructors would be seeking leave to issue a subpoena to compel the appearance of [Dr B], a former colleague of the husband, as a witness at trial.

30I was advised that Dr B had been asked some time ago to swear an affidavit and had declined. For reasons which are not explained, at the time of the filing of the wife’s trial materials, Dr B was not identified to the Court as being a person who had declined to swear an affidavit.

31For reasons again unexplained, the request to issue a subpoena seeking to compel his appearance to give evidence at trial has not yet been made, notwithstanding the parties having had notice some months ago as to the trial date.

32There is a dispute between the parties as to whether or not the husband and those advising him have been given notice of the intention to subpoena Dr B. Obviously, I am not in a position to resolve that dispute today. In making that observation I make no criticism of either counsel, both of whom are operating on their instructions, which at present conflict. That is a matter which no doubt can be the subject of further conferral in due course.

33There are also significant issues raised by the husband about the admissibility and relevance of much of the affidavit material. It may well be that with the opportunity for proper conferral some or all of those issues can be resolved. It may also be that some of those issues arise because the parties filed their trial affidavits at a time when the parenting dispute was very much alive.

34It is to be hoped that both parties will sharpen their focus in relation to their trial evidence, including the exhibits and annexures to their affidavits, so as to ensure that at trial they rely only on those materials which are both relevant and admissible. By way of example, counsel for the husband has indicated to me this morning that of the 368 pages of exhibits to his client’s trial affidavit, he anticipates seeking that only something in the order of 10 pages, or thereabouts, be admitted into evidence. I asked counsel the question leading to that response on the fly, and I would not purport to bind him to that estimate at any time in the future once he has had the opportunity to consider the issue more carefully.

35As will be apparent from the observations made, I am not satisfied that at the time of the status hearing the matter is properly ready to proceed to trial as presently listed.

36While counsel have understandably sought to assure me that the matter will be made ready in time, and I do not doubt the sincerity of their assurances or their good intentions and those of their instructors, that is frankly not the point.

37In circumstances where the parties have simply not complied with orders made, without reasonable excuse, I am not prepared to retain the trial listing on their behalf to the exclusion of other litigants based on any triumph of optimism over experience. I propose to vacate the trial date.

38The other matter before me this morning, and which again highlights the state of readiness of the matter, is the wife’s Form 2 application filed on 4 April 2018 seeking comprehensive orders for further disclosure from the husband.

39The husband’s Form 2A response and his affidavit in support of it, which ran into some 155 pages including exhibits, was filed the day before yesterday and came to my attention only late yesterday afternoon. In making that observation about the length of the affidavit, I acknowledge that it served also as the husband’s updating evidence for the purposes of trial.

40As the trial is to be vacated, any perceived urgency in that matter being dealt with falls away. It is also clear from some of the exchanges along the bar table this morning, and from responses by counsel to some of my questions, that there is likely to be scope for the disclosure issues to be resolved between the parties. Certain concessions have been made. That is to be encouraged and appreciated, though of course it should have happened a very long time ago.

41The Form 2 application of the wife and Form 2A response of the husband will stand adjourned generally, with liberty to the parties to re-list before me, or any trial judge subsequently assigned.

42I have no doubt that the parties would wish to move towards a relisted trial as quickly as they can. I am not, however, prepared to give them priority over other litigants who have complied with the Court’s orders. The proceedings will be included in the Callover on 29 June 2018 for the allocation of a trial date.

These reasons are the reasons for decision I delivered on 13 April 2018, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

LH
ASSOCIATE

11 MAY 2018