Rex and Rex

[2007] FamCA 49

FAMILY COURT OF AUSTRALIA

REX & REX [2007] FamCA 49

PRACTICE AND PROCEDURE – Preparation for trial

Legislation

Family Law Act 1975 (Cth)

APPLICANT: MRS REX

RESPONDENT: MR REX

INDEPENDENT CHILDREN’S LAWYER: LEGAL SERVICES COMMISSION

FILE NUMBER: ADF 95 of 2004

DATE DELIVERED: 2 February 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Robyn Croydon

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A - Self-Represented

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr T Stephen

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Rex & Rex

Orders

1. The time is extended for the wife to file and serve the affidavit of the evidence of updated valuations of Mr D provided the same is filed today and posted today to the husband’s address for service.

2. The time is extended for the wife to comply with the orders in relation to the filing of the material referred to in Document 106 the wife’s Compliance Certificate to the date of actual compliance which was the 18 January 2007.

3. The wife file and serve an affidavit to which is annexed her proposed minutes of order with as much particularity as the wife can provide such affidavit to be filed and served by 4.00 pm on the 9 February 2007 and posted to the husband’s address for service on that date.

4. The husband file and serve his affidavit of evidence in chief and of any of his witnesses upon whose evidence he seeks to rely, updated Financial Statement on oath and updated information in relation to his superannuation interests by 4.00 pm on the 13 February 2007.

5. A self-executing order is made that if by 4.00 pm on the 13 February 2007 the husband has not filed any affidavit of his evidence in chief then the matter is to proceed undefended before The Honourable Justice Strickland on the 19 February 2007.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 95  of 2004

MRS REX

Applicant

And

MR REX

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has been managed by me for many months; probably even years.  Orders that I have been making in relation to an attempt to prepare this matter for trial certainly commence back in 2005.  I have been in the process of making procedural orders in relation to the preparation of this matter for trial in accordance with the normal procedures and the normal Rules of Court.

1. The matter has come before me frequently, since at least September 2005, with a view to attempting to get the matter listed for trial.  There have been various difficulties along the way.  The orders were made to prepare the matter for trial, requiring the parties to file and serve their affidavits of their evidence‑in‑chief and of witnesses, in particular, the parties were directed by my orders of 24 October 2006, to file and serve affidavits of evidence-in-chief of themselves and their witnesses and comply with other pre-trial procedures, with a view to having the matter listed for a pre-trial conference and trial.

2. Subsequently, there have been other hearings when I have extended time for various matters to be attended to and set dates for compliance.  Specifically, it was proposed at one time that the trial be listed in January but that was postponed to a date in February 2007.  The date for the trial before Strickland J was specifically mentioned in the orders of the court that I made on 5 December 2006.

3. There have been delays and non-compliance, to a certain extent by the wife in these proceedings.  There has been ongoing delay by the husband in these proceedings.  Specifically, the husband has not filed any affidavits of evidence-in-chief of himself or any proposed witness.

4. The husband appears by telephone link today.  He has been unrepresented in the proceedings for all of the time that the matters have been before me for management and procedural directions.  The husband has been present when those orders have been made.  It is not a situation that he has not been aware of the orders and the need to comply with them to prepare the matter for trial.

5. Specifically, when the matters have been before me recently, it has been noted that the parties were on notice that if there was not compliance with the orders to prepare the matter for trial, consideration would be given to listing the matter as an undefended matter.

6. The matter now comes on before me today.  The husband has not complied with the orders for filing affidavit of evidence-in-chief and other procedural orders.  He files an affidavit by facsimile, yesterday, on 1 February 2007, in which he asserts that he has been working on the fruit block property for significant hours and that that explains his failure to comply with the orders in relation to the preparation of his 2006 tax returns.

7. In that affidavit he also asserts that he was under the impression that he had reached some sort of agreement with the wife in relation to financial matters, or at least that they had agreed to go to a financial mediator.  The affidavit itself is not clear, in that he asserts that they had agreed on a certain split of assets but that they also agreed that a financial mediator was required. 

8. I take that into account but also take into account that Ms Croydon has, since December 2006, filed proceedings in this court, including a compliance certificate in relation to the trial, which would indicate that the wife had not given Ms Croydon any instructions that the matter had resolved or was to proceed to mediation rather than the trial (which is fixed and has been fixed for 19 February for some time).

9. The material before me there is not sufficient to explain the husband's ongoing default in compliance with the orders.  However, in view of the allegation that he makes that he was under the impression that the matter was resolved privately, with the wife, I propose to give him one last chance to file and serve his affidavits of evidence-in-chief and that of any of his witnesses and his proposed orders for final property settlement, on the basis that there will be a self-executing order listing the matter as an undefended matter if he does not comply within the specified time.

10. Ms Croydon brings to the court's attention the short delay in compliance with the orders that were made for the preparation of the matter, as referred to in her compliance certificate, and the need to have an extension of time to file Mr D’s affidavit in relation to recent updated valuations.

I certify that the preceding eleven [11] paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  12 February 2007