ROLAND & ARGENTO

[2014] FamCA 1021

FAMILY COURT OF AUSTRALIA

ROLAND & ARGENTO [2014] FamCA 1021

FAMILY LAW – PRACTICE AND PROCEDURE – PROPERTY – Interim application – expedition – cross-applications – not ready for trial – application for expedition dismissed.

APPLICANT: Mr Roland

RESPONDENT: Ms Argento

FILE NUMBER: PAC 2474 of 2013

DATE DELIVERED: 27 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 27 October 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Maait of Norris Somers

COUNSEL FOR THE RESPONDENT: Mr Battley

SOLICITOR FOR THE RESPONDENT: Harish Prasad & Associates

Orders

1. The application for expedition is dismissed.

2. Any further Applications in a Case seeking interim orders are to be listed in accordance with the Rules before a Judge on a specific day rather than simply as part of a directions or duty day.

3. Costs in relation to today’s application are reserved.

Notation

1. All other applications have been either withdrawn or are no longer relied on.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2474  of 2013

Mr Roland

Applicant

And

Ms Argento

Respondent

REASONS FOR JUDGMENT

1. This is an application for expedition of the final hearing of an extremely complex property matter that commenced in this Court on 13 June 2013.

2. The basis for seeking expedition of the matter which is sought by the husband is two-fold.  Firstly, being the Applicant husband’s state of health which is said to be very poor and I do not think there is any dispute about that. The second is the husband’s contention that the wife has consistently failed to provide the information that he requires in order to prepare the matter for hearing.

3. The application for expedition was one of a number of orders that was sought by the husband in an Application in a Case which came before the Court on 14 March of this year.  On that date, the Application in a Case was withdrawn and dismissed. Some other orders were made by myself in relation to the appointment of a single joint expert in relation to some categories of property that were to be valued.

4. The issue of valuation of property is one of numerous issues and perhaps in some ways not the most important of the issues. A central aspect of the case is what has been described as the accounting exercise relating to the shifting of funds between companies.  That accounting exercise itself is bound up with the issue of valuation.

5. The husband, it appears, had thought that he would provide evidence about the movement of funds between parties from which the Court could determine the essential fact in issue about the removal of monies from various accounts by the wife and her dealing with it.  However, the husband through his solicitor, Mr Maait, today did concede that those sorts of matters really cannot be determined by the Court without expert evidence which itself in turn raises whether that expert evidence can be obtained whilst the underlying documents which will be needed for that expert are still not forthcoming.

6. Essentially it seems to me that this has been a very frustrating exercise particularly for the husband because it comes back to his central position that the wife has control over the documentation which is essential for him to prepare his case as well as prove the matters which he wishes to prove. He says in the absence of those documents being made available he can proceed no further. 

7. However, the answer is not simply to list a matter for hearing and in particular to give it expedition simply because the parties or the husband in particular has been frustrated to date by bringing various applications and then when they have perhaps not been given the attention that they deserve withdrawing them and bringing other applications.

8. I have been asked to determine this application for expedition today but in the midst of submissions Mr Maait asked that I not determine it and that it be adjourned to another date.  This application has been on foot since July.  The issue of expedition itself has been heard today.  I have listened to what has been put on behalf of the husband and I do determine that application by dismissing it.

9. I am firmly of the view that this matter is not ready to be heard. If the Court were to give it expedition then it could be listed in a few months’ time. If it is not ready it is simply a waste of the Court’s resources and particularly an allocation of what appears to be a significant number of days for hearing which also I have not been provided with. I have no estimate as to the parameters of this hearing and I certainly cannot expedite something which means that the parties would immediately go before the List Clerk and get a hearing date if we do not know what the parameters are going to be.

10. Dismissal of the application for expedition does not mean that all the previous interim orders that were sought simply can become revived and fixed for another date. Some of the interim orders that were made before the Registrar included a notation that only the issue of expedition was to be pursued. Also it appears that some of the orders that had previously been sought in the Application in a Case on 17 July 2014 are no longer sought, for example, the order in relation to the valuation of real property.

11. In terms of the application today, as I have indicated, I dismiss the application for expedition simply because the matter is not prepared for hearing. However, I acknowledge that there needs to be a docket judge appointed to this case. I direct that that occur and that any application for interim orders be heard by that docket judge and an estimate of the time that will be required for the determination of those matters needs to be made in consultation with the docket judge.

12. The matter should not be placed in a directions day or on a duty day but should be allocated the appropriate time that is needed having regard to the nature of and complexity of the interim application sought.

13. As I have indicated the Application for expedition is dismissed. I note that all other matters have been either withdrawn or noted that they are no longer relied on.

14. In the event that the husband or the wife are seeking any interim orders, they will need to be contained in an Application in a Case and supported by an affidavit, being a single affidavit by the Applicant, and there may need to be an affidavit by a solicitor.

15. It should be listed in the normal way in accordance with the Rules but as I have indicated it should come before a judge on a specific day rather than simply as part of a directions or duty day.

16. I reserve costs in relation to today’s application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 October 2014.

Legal Associate: 

Date:  13 November 2014