Raich & Raich
[2024] FedCFamC2F 1215
•28 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raich & Raich [2024] FedCFamC2F 1215
File number(s): MLC 9895 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 28 August 2024 Catchwords: FAMILY LAW – Property – Where wife alleges substantial failure to disclose by husband – Husband unrepresented – Application for adjournment in circumstances where husband recently became unrepresented – Not infrequent difficulties with section 102NA representation in this court – Unintended consequences of section 102NA – Decision not to proceed undefended – Final hearing adjourned to allow appointment of another solicitor for husband by Legal Aid Victoria – Not insignificant volume of documents and material to be prepared – Costs thrown away by reason of adjournment fixed but to be determined at final hearing. Legislation: Family Law Act 1975 (Cth) ss 79, 102NA Cases cited: Filipovic & Filipovic (No 3) [2024] FedCFamC2F 249
Kowaliw & Kowaliw (1981) FLC 91-092
Middleton & Redmond [2021] FCCA 316
Su & Chang [1999] FamCA 1203
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 28 August 2024 Place: Melbourne Counsel for the Applicant: Mr Fudim Solicitor for the Applicant: Accord Family Law The Respondent: In Person ORDERS
MLC 9895 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RAICH
Applicant
AND: MR RAICH
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
28 AUGUST 2024
THE COURT ORDERS THAT:
Adjournment
1.The matter be adjourned to Thursday, 27 March 2025 at 10.00am (for an estimated 2 days) with priority.
2.All extant applications be and are adjourned to the above date and the parties must appear personally on that date.
3.The Applicant, MS RAICH (‘the Applicant’) costs of this day thrown away are fixed in the sum of $10,592 and a further issue to be determined at the adjourned hearing is whether the Respondent, MR RAICH (‘the Respondent’) should pay those costs thrown away.
Section 102NA
4.It is declared that pursuant to section 102NA(1)(c)(ii) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Applicant Wife, MS RAICH and the Respondent Husband, MR RAICH are prohibited from personally cross-examining the other in these proceedings.
5.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Respondent Husband, MR RAICH under the Commonwealth Family Violence and Cross Examination of Parties Scheme
6.For the purpose of order 3 hereof, the Respondent Husband, MR RAICH do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.
7.In the event that a solicitor is appointed pursuant to the Section 102NA Family Violence scheme, then such solicitor is requested to confer with the Respondent Husband, MR RAICH on a face-to-face basis, unless there is good and substantial reason this cannot occur.
Trial directions
8.The Respondent is to file and serve his trial material which he seeks to rely upon at the Final Hearing on or before 4pm on Monday, 9 December 2024.
9.The Applicant is to file any material responding to the Respondent’s trial material on or before 4pm on Wednesday, 19 February 2025.
10.The Respondent is to provide all relevant information and documentation that is necessary to comply with his duty of full and frank disclosure and provide corroboration and support for whatever his explanation is of the substantial money alleged to have been received by him to the Applicant on or before 4pm on Monday, 25 November 2024.
11.Any Outline of Case for the Final Hearing is to be filed on or before 4pm on Thursday, 13 March 2025, with the Applicant at liberty to rely on her Outline of Case filed 21 August 2024.
Liberty
12.The parties be at liberty to apply on short notice by email to the Chambers of Judge O’Shannessy in the event of the sale and/or the settlement of the sale of the B Street, Suburb C property occurs prior to the adjourned date, and in that event the parties be at liberty to rely on previously filed material.
13.The parties be at liberty to provide these orders and the reasons therefor (when settled) to Victoria Legal Aid and/or any other legal/accounting advisor.
AND THE COURT NOTES THAT:
A.The duty of disclosure is ongoing and both parties have the obligation to provide information on an ongoing basis.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.In the event the Respondent fails to comply with these orders, the Applicant may seek to proceed on an undefended basis.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The matter of Raich comes before me on day one of an intended two-day final hearing. The parties were married in 1988 and separated, on one view, under the one roof in 2010 or, on another view, at some point later on. These proceedings were issued on 29 August 2023. The parties are not divorced. The parties have three children now aged between 30 and 34.
The applicant wife, Ms Raich (‘the Wife’), seeks property orders pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’) as is just and equitable. The matter has been before the Court for directions hearings on many occasions. It is undisputed that the respondent husband, Mr Raich (‘the Husband’), has not complied with directions for filing of material. He has managed to get on the portal a financial statement that appears to have been filed on 10 April 2024.
Issue in dispute
The Wife alleges that the remaining property of the parties would be the equity that they hold in a property at B Street, Suburb C, which is said to be worth (hopefully) $3,000,000 but encumbered by a mortgage of $1,250,000. That mortgage is being serviced solely by the Wife in difficult financial circumstances. She has entered a payment plan to hold off the mortgagee.
The parties previously suffered a mortgagee’s sale after a sheriff took possession of what had been the former matrimonial home. Because of the nature of the title of the Suburb C property, there are some complexities to its marketing. By reason of an order of the Court, the property is now on the market for sale but has not yet been sold.
The Wife commenced these proceedings on 29 August 2023 and, on her account, after many years of being separated from the Husband and having been unable to achieve any finalisation of the financial affairs between the parties.
Two sources of information
The Wife sets out, in an affidavit, information that she has learned from two sources. The first, by mere luck and fortuitousness. After the Sheriff (of the State of Victoria) had taken possession of the former matrimonial home, she attended that home for the purpose of tidying it up and getting it ready for sale, as is apparently her diligent nature. In that process, she says, she found certain documents. Those documents had some financial information about the financial affairs of the Husband. She says the matters that she learned therein were matters that she otherwise did not know of. This assisted her provide instructions to her lawyers.
Orders were pressed in court for the Husband to provide financial documents and information, such as he would be able to provide, to comply with his duty of disclosure. The Wife says he did not do so. That is corroborated by a detailed affidavit from her solicitor, who asserts that he did not do so. It's unclear to me the extent to which that is in issue.
The second source of information that the Wife has about the Husband's financial affairs comes from the trouble and expense of subpoenaing various banks and superannuation funds.
The information obtained by the Court's writ, that is a subpoena, indicates, the Wife says, that:
59.As well as deposits to the SMSF I understand that further funds were rolled out within [Mr Raich]’s superannuation with [Super Fund 1]. Specifically, the benefit statement for the period 1 July 2019 to 31 December 2019 indicate rollover and transfer of $940,035.92, and withdrawals of $998,249.97 within that same period. The benefit statement for the period I January 2020 to 30 June 2020 indicate rollovers and transfers of $886,672.96 and withdrawals of $893,486.90 over this same period. I have been unable to ascertain how these funds have been applied at the time of affirming this my Affidavit…
60.To the best of my knowledge and based on information I have been able to ascertain only by the issue of subpoena I believe that [Mr Raich] has had access to substantial funds. It is not possible for me to identify fully how those funds have been utilized however they do not appear to have been preserved in assets within Australia, and I have had no benefit from these funds. The bank statements produced would indicate that [Mr Raich] has property interests overseas, including in [Country D] and that funds are being diverted to overseas accounts.
In addition, those subpoenaed documents show what she says is receipt of substantial funds where both the source and the application of those funds has not been disclosed to her:
56.By order dated 25 October 2023 [Mr Raich] was required to file responding material and to exchange financial information. I am informed by solicitor and believe that he has failed to comply with requests to provide information, including bank statements. I instructed my solicitor to issue subpoena to various financial institutions, and to [Super Fund 1].
Documents produced under subpoena indicate that between 2015 and 2023 [Mr Raich] has had access to significant funds, including during the time when the [Suburb N] mortgage was not being paid. … The deposits include the following:
To National Bank Account ending# […]47
56.1Deposits from [Super Fund 1] between July 2019 and October 2020 totaling $280,815.66.
56.2Sale of shares between 2017 and March 2020 to an estimated value of $107,940. In relation to these shares, some were in my name. I did not know that shares had been sold until I met with my Accountant in 2017/2018. I was then informed that I had a tax liability of $15,000. Thankfully, I was able to reduce this liability by entering into a payment plan with the Australian Taxation office;
56.2Deposits from [E Law Firm] between 30 November 2017 and 7 March 2023 to a total of $809,758. I understand that the payments may represent proceeds from sale of overseas properties. I say this because in the context of clearing the [F Street] property for sale, I found a document from [E Law Firm] dated 23 February 2018 referring to [Mr Raich] as the vendor of a property at [G Street, Suburb H, Country D].
56.4Payments of more than $130,000 from individuals, some of whom I know to be members of [Mr Raich]'s family, including:
[named persons] …
56 5Payments from [J Law Firm] totaling $84,385.97 received on 14 May 2018;
To National Australia Bank Ltd ending #[...]22
56.6Payments from [Super Fund 1] between 26 June 2017 and 25 July 2018 of $68,596.77
56.7Payments from [K Firm] between October 2020 and 2 March 2021 of $71,237.92; and
56.8A payment of $77,900 on 20 October 2017 with reference to "Proceeds of overseas".
Redundancy from [L Company]
57.As well, [Mr Raich] was made redundant from his position at [L Company] [in early] 2020. l know this because in the context of clearing the [Suburb N] property for sale I found a letter from [L Company] addressed to [Mr Raich] confirming a final payment of all leave entitlements of $122,605. I do not know what happened to this money but understand that this was paid into an account with NAB ending #[...]88…
That gives rise to the Wife, in a carefully prepared outline of case, alleging that I should find and regard the property pool as being or including two add-backs of substantial funds in the Husband's hand in the order of $1.350million and, in addition, that the exercise of the discretion as to the division of the proceeds should be in accordance with the well-known principles in cases such as Su & Chang [1999] FamCA 1203 and Kowaliw (1981) FLC 91-092.
Those cases stem from the principle that, where a party has not provided the other with all relevant financial information and documents, that that may lead to the inference being drawn that the party has received the funds but refuses to disclosure where they went and, in that circumstance, the Court should be more generous to the innocent party than would otherwise be the case. Because to do otherwise would be a licence for fraud.
On the documents produced, the allegations of the Wife have at least some colour and appear, unfortunately, to be not implausible. Whether, in fact, she is able to convince me of those matters on the balance of probabilities is a different matter and I make no comment about whether I am, or I am not, likely to make such findings.
Some considerable time was taken in explaining the procedures and the applicable law and the rights of the Husband. He has this day (once he got the drift that I was assisted by precise information including dates of receipt of documents and dates he had sent documents rather than conclusionary summaries) been of some help to me. He appeared unrepresented.
Section 102NA
Back on 10 April 2024, when this matter was fixed for final hearing, an order pursuant to section 102NA of the Act had been made. Section 102NA provides as follows:
Section 102NA Mandatory protections for parties in certain cases
(1) If, in proceedings under this Act:
(a)a party (the examining party) intends to cross - examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii) a family violence order (other than an interim order) applies to both parties;
(iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross - examination;
then the requirements of subsection (2) apply to the cross - examination.
(2) Both of the following requirements apply to the cross - examination:
(a)the examining party must not cross - examine the witness party personally;
(b)the cross - examination must be conducted by a legal practitioner acting on behalf of the examining party.
…
There is, in evidence, the chain of email communication between the Legal Aid body administering the 102NA cross-examination scheme funds.
It is clear that Husband did apply to the Legal Aid body for representation and funding for representation as directed by the order. It also appears he did so in a timely manner. The Wife was to file her trial material on or before 31 July this year. The Husband was to file his material on or before 14 August. The Wife, with an efficient solicitor, filed detailed material a day early, on 30 July. On that day, that material was sent to the Husband and he was asked to advise the solicitors by email whether he agreed or disagreed or partly agreed or whether he could not comment.
He was asked to provide those instructions to a very detailed and comprehensive trial affidavit by the following Friday. That is, he had from the receipt of the affidavit on Tuesday, 30 July, to Friday, 2 August, to respond. He did not so respond. However, he did send some information and on the following 6 August 2024, that being the Tuesday, rather than the prior Friday. He followed up with more and substantial information, including responses to particular paragraphs of the Wife’s affidavit to his appointed solicitors on 12 August 2024.
On 13 August 2024, the solicitors filed a Notice of Ceasing to Act and advised the administering Legal Aid body that the Husband did not abide the conditions of the grant, did not follow instructions, or provide required documentation. This was brought to the Court’s attention from an email from Legal Aid to my Chambers.
Dear Associate,
In the matter of MLC9895/2023, upon being notified that [O Law Firm] has ceased acting for [Mr Raich] in this matter, we have decided that it is not feasible to refer this matter to a new firm for a transfer of the grant.
This has been decided on the basis that the final hearing date is very close and that [Mr Raich] did not abide the conditions of the grant, did not follow instructions, or provide required documentation.
Please reach out with any queries.
Kind regards,
(emphasis added)
It is apparent that there is no reference in the information provided to Legal Aid by the appointed lawyers or by Legal Aid to this Court, to the circumstances and the actual chronology of events as I have described above.
The other complicating factor is that the Husband says that he only has the financial resources to communicate via mobile phone, although he may have some limited access to a computer.
Issue of face-to-face consultation
The Husband tells me that, when the lawyers were appointed under the Legal Aid scheme, which I am satisfied was back on 28 May 2024, that he telephoned that firm of solicitors and asked for a meeting with the solicitors. He wished to meet face-to-face, he says, and provide information. He says the request to meet face-to-face was refused, and he was told that he could not meet face-to-face but that he could communicate with the lawyers via email or video link only.
I am not prepared to make a finding that that is correct but, if correct, it is a substantial and not insignificant in-road into the ordinary manner of communicating with a legal advisor, that is face-to-face.
I am satisfied, having dealt with the section 102NA scheme before in detail, that it was not the intention of Parliament when drastically restricting the ordinary way a litigant would conduct litigation, that it was intended that there be some sort of second-rate service. The Husband tells me today that, after he received the Notice of Ceasing to Act and on 13 August 2023 (the day before the deadline for filing material) and the advice from Legal Aid that another 102NA lawyer would not be appointed, that he attempted to file documents on the Court portal himself but, because of the form of the document, the filing was rejected.
I make no finding in that regard, but I do not proceed on the basis that I reject his explanation. He may well have attempted to file those documents.
It is unclear to me as to just what it was that the Husband was meant to have done after the receipt of the affidavit that he did not do. I refer to my decision in Middleton & Redmond [2021] FCCA 316 as to an explanation of the section 102NA scheme.
30Section 102NA(1) has three limbs, (a), (b) & (c) and the third limb, (c), has four branches. Each limb must be found to apply but any of the four branches of the third limb is sufficient for that limb to apply. The fourth branch of the third limb gives the court a discretion to order a ban on personal cross examination whether or not any of the other three (of the four branches) apply provided the first two limbs are satisfied. Section 102NB is a related back up provision. If sections 102NA(1) & (2) do not apply and a party intends to cross examine and there is an allegation of family violence then the court must ensure that during cross-examination there are appropriate protections for the party who is the alleged victim of family violence. Sections 102NA and 102NB provide a cascading scheme of provisions where there is an allegation of family violence and a party intends to cross examine another party personally. If the more stringent or serious conditions of 102NA(1) are met the ban on personal cross examination and the obligation for cross examination to be conducted by a legal practitioner is mandatory and at public expense. If the stringent conditions of section 102NA(1) are not met but there is an allegation of family violence and a party intends to cross examine another party then section 102NB provides that the court must still ensure there are appropriate protections for the party who is alleged to be the victim of family violence in every case.
In this case, the final intervention order that triggers the third limb of section 102NA is for the protection of the Wife. The point and purpose of the section 102NA scheme is to protect the Wife from the prospect that she may be re-traumatised by being personally cross-examined by the Husband. It is unfortunate that the scheme and the legislation intended to protect the Wife, as the alleged victim of family violence, ends up substantially disadvantaging her when the Husband has been unable to communicate with the appointed lawyers in a manner he seeks. I do not intend to conduct a royal commission into what happened between he and his solicitor.
Maybe an unintended consequence of section 102NA
But between 28 May 2024 and 13 August 2024, it is clear enough and, in particular, because of the incontrovertible evidence of the heading to the emails within exhibit C2 (I have not looked at the information contained therein because I understand it is protected by legal professional privilege) that the Husband did email information to the lawyers on Tuesday, 6 August 2024, and again on 12 August 2024.
Parties seeking an adjournment of a trial because of difficulties with the section 102NA scheme are not infrequent in this Court and, vex the proper administration of justice and disadvantage the victim of the alleged family violence, and in a significant financial way. It may be the way that this all washes out is an unintended consequence of the legislation.
In that context, the Husband tells me that he cannot proceed with the hearing today because he has not had enough time to prepare and file material himself, now that he is unrepresented. Had he had sufficient time to file the material or had his lawyers been able to organise the filing of material in the time available, that may or may not have answered the serious allegations of non-disclosure of the Wife, but at least it would give me what is said to be the other side of the story.
Issue of undefended hearing
As to a summary of the authorities dealing with adjournments and undefended hearings, I refer to, for convenience only and not because of any particular authority, my decision in the matter of Filipovic & Filipovic (No 3) [2024] FedCFamC2F 249.
56In Zane & Allan (2008) FLC 93-378 (‘Zane & Allen’), the husband had failed comply with orders and directions of the court and to cooperate with orders and directions relating to valuation of assets by single expert. The matter was listed for final hearing and on the day of the final hearing the husband appeared by counsel and sought an adjournment and, as I understand it, the purpose of the adjournment was to enable compliance by the husband with the Court orders and directions. The primary judge refused the adjournment application and proceeded to hear the matter in what was described as an “undefended” hearing over two days. A reserved judgement was delivered later. The husband appealed and the majority regarded the primary judge’s discretion as to whether to proceed undefended as miscarrying. The appeal was allowed and the matter remitted for rehearing on the basis that the discretion to determine whether the matter should proceed undefended miscarried.
…
60There was no criticism or approval of the primary judge’s description of the breadth of the matters to be considered within an undefended hearing. In that case the majority point out that even in the event of default of a party with complying with court directions and rules there is a discretion to be exercised as to whether or not a final hearing should proceed as undefended. Of significance in finding that the discretion had miscarried the majority observed that the recalcitrant and noncomplying husband had filed some material and sought to participate in the hearing and that there were significant factual and legal issues that required hearing. An error was that the observations about the breadth of the discretion was made after the “undefended” ruling had been made and the trial had concluded.
61As May J, in dissent as to the result of appeal in Zane & Allan, observed correctly and concisely:
[190]First it would be wrong in this case to lose sight of the fact that there are two parties to this dispute. The wife is entitled to have her application filed 1 September 2000 heard.
62In Singam & Moffrey (2015) FLC 93-641 (Singam) the primary judge proceeded to hear a matter undefended after a party had failed to file documents in accordance with the rules of the court and had not attended a court ordered conciliation conference. That litigant in person had attended to directions hearings by telephone but was required to attend a further hearing in person but on the day of the hearing requested to appear by telephone. The request was denied.
63In that case the Full Court regarded the primary judge as proceeding under the then applicable old (new Rules are now in force) default provisions of the then applicable rules. Those rules differ from the current rules but the themes are sufficiently similar for the observations to be apposite. At [43-44] the Full Court observed:
43.The exercise of the relevant discretions occurs within an important statutory and regulatory framework. The Federal Circuit Court “… must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted” (s 42 Federal Circuit Court of Australia Act 1999 (Cth)). The Court may “… dispense with compliance, or full compliance …” with any of the Rules (r 1.06) consistent with specified objects of the Rules to “… operate as informally as possible” and to “use streamlined processes” (r 1.03(2)). The Court “will apply the Rules in [80183] accordance with their objects” (r 1.03(3)) and “must … avoid undue delay, expense and technicality” (r 1.03(4)).
44. …As is evident, the court has wide powers to frame proceedings and procedural requirements consistent with the interests of justice and the proper interests of both parties. Judgment by default is a remedy that results from a conclusion that the interests of justice require one party to be denied an important right; to have their case heard, even if considered weak or misguided. Frequently, other orders, including procedural orders shaped to fit the particular circumstances of the case, should be preferred.
64The appeal was allowed on the basis that the exercise of the discretion to proceed undefended had miscarried.
Those authorities demonstrate that to proceed on an undefended basis when a party is before the Court and insisting, or requesting, to participate and file documents and be represented, is a serious thing. I am troubled at the prejudice to the Wife. However, I am satisfied that, in the interests of justice, in all the circumstances, I am compelled to adjourn the matter.
Issue of costs?
In the event that the Husband is successful in resisting the Wife's application that she retain the whole of the proceeds of the remaining property that she says she has carefully conserved, there would be no funds available to compensate her for the costs thrown away.
The material filed by the Wife shows considerable professional skill and care and time involved in its preparation. The solicitor instructing will have been engaged for six hours this day and has a substantial hourly rate of $657 and will charge her client almost $4000, being $3,942, for attendance at Court today. Counsel will charge a total of $9,900, being for two days preparation and one day at Court. I am satisfied that one day of preparation (not two) and one day at Court are costs that have been thrown away by reason of the necessary adjournment. That is a total cost of $10,542.
Indemnity costs?
I am satisfied that there are exceptional circumstances in this case whereby I should deal with the matter on a solicitor-client or indemnity cost basis rather than a party-party basis on scale.
The costs thrown away of being in Court today, and counsel preparing for one day, would be considerably less on scale. However, the number of opportunities that the Husband had to file documents, provide information and provide discovery all take this case into the exceptional case and warrant costs being considered on the actual cost incurred rather than the party-party basis. It is the law that indemnity costs are the exception, not the rule, and only granted in exceptional circumstances. This is an exceptional case.
Depending on the outcome of the case, such a costs order may mitigate, to a small degree, the prejudice to the applicant Wife of this adjournment.
CONCLUSION
Considering the authorities and considering the Husband's appearance before me today and his submissions and the chronology of events of what occurred between 28 May 2024 and 14 August 2024, I am satisfied that to proceed undefended and compel the Husband to proceed undefended without further due today, may well end up with a miscarriage of justice. I am satisfied that, in the interest of justice, and with some reluctance and pique, the only aspect is to adjourn the matter.
Orders
I will not order that those costs be paid, as I do not know what the evidence will be. However, I will order that one of the matters to be dealt with at final hearing is the question of why the respondent Husband should not bear the applicant Wife’s costs thrown away by reason of this adjournment in the sum of $10,542.
I am unable to hear this matter as a priority matter of two days, due to other matters that are already listed before me, until Thursday 27 March 2025. If there was a time available to hear it before then, I would, but there is not. There are already other cases listed. I also take into account in adjourning this matter that had this matter not been listed before me, another family's case would have been listed before me instead, and there is another family waiting to have their case heard because this one was listed before me, and it has been unable to proceed. And that is a significant matter that also weighs on me.
Not a few documents
Nonetheless, I am satisfied, in the end, that I am compelled to adjourn the matter to give the Husband the opportunity to, again, engage with the Legal Aid Commission for the appointment of a lawyer and to, again, attempt to provide documents and information that are necessary for him to comply with his duty of disclosure. That is not some few documents. There will be a lot of trouble in chasing them up.
Whether or not the next solicitor (if appointed) is able to grasp just what the Husband’s defence or response to the allegations is, it is unlikely that the matter would again be deferred when it has been again listed for final hearing. I cannot decide such things in advance because I have to always deal with the applications and circumstances as they are on the day. But the Husband should be under no illusion, or delusion, that adjournments are easily granted in this Court. To adjourn this final hearing again would wreak a very serious injustice upon the Wife and that is a matter that I would have to take into account at the time.
I also add a note that the duty of disclosure is an ongoing one and that both parties have the obligation to provide financial documents and information on an ongoing basis, rather than a once-off.
I will also add that there will be liberty to apply in the event that the settlement of the sale of the subject property is to occur, or does occur, prior to Thursday 27 March 2025. I hope it does sell, but it may not.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 9 September 2024
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