Saller & Danell (No 2)

[2017] FamCA 712

FAMILY COURT OF AUSTRALIA

SALLER & DANELL (NO. 2) [2017] FamCA 712

FAMILY LAW – PROPERTY – procedural orders – application for adjournment – application for extension of time to comply with final orders – application of rule 11.03 of the Family Law Rules 2004 - application dismissed – costs reserved.

Family Law Act 1975 (Cth) s 90SN

Family Law Rules 2004 (Cth) r. 11.02, 11.03

APPLICANT: Mr Saller

RESPONDENT: Ms Danell

FILE NUMBER: SYC 575 of 2015

DATE DELIVERED: 22 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 22 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Clinch Long Woodbridge Lawyers

COUNSEL FOR THE APPLICANT The Respondent appeared in person

Orders

THE COURT ORDERS THAT:

1. The wife’s application for an adjournment is dismissed.

2. The wife’s application for an extension of time to file an Application in a Case and supporting affidavit for variation of the final orders made 16 March 2017 pursuant to the Orders made 28 July 2017 is dismissed.

3. The matter remains listed for hearing at 10.00am on 15 September 2017 to consider the following issues only:

   (a)       Whether, as at close of business 16 June 2017, the Applicant had done all that was necessary to comply with the final property Orders made 16 March 2017; and

   (b)       In the event that the Court finds that the above did not occur, what orders should be made to effect the sale of the L property and the division of the proceeds of sale of that property pursuant to Order 17 of the final property Orders made 16 March 2017.

4. I DIRECT that within 7 days of the date of these orders, each party serve upon the other and provide to my Chambers a minute of orders sought in relation to the sale of the L property and the division of proceeds of sale of that property.

5. The parties’ costs of today are reserved.

AND THE COURT NOTES THAT:

A. The wife has not to date filed an Application in a Case and supporting affidavit pursuant to the Orders made 28 July 2017.

B. The husband’s counsel made submissions today as to the issues to be heard on 15 September 2017. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saller & Danell (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 575 of 2015

Mr Saller

Applicant

And

Ms Danell

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter arises in the context of a dispute between the parties regarding final orders that were made on 16 March 2017. Those orders were set out in a judgment that had been reserved at the conclusion of a 15 day hearing relating to parenting and property matters.

2. Specifically, the parties are in dispute as to whether orders should be made for the sale of a property at K Street, Suburb L (“the L property”) and, if so, what those orders should be.

3. The matter was initially listed before me on 28 July 2017 to consider an application by the husband for mechanical orders to effect the sale of the L property. The husband contended that the Court is required to make such orders pursuant to order 17 of the final orders made on 16 March 2017. This, the husband contended, is as a result of the fact that the wife had not complied with order 13 of those orders which, by way of summary, required her to sign all documents necessary to discharge a mortgage on a property which the wife owned at Suburb YY in the state of Victoria and to transfer the property to the husband. The orders also required the wife to transfer to the husband registration and ownership of a Ford motor vehicle and to pay the husband the sum of $263 569.

4. On 28 July 2017, the wife argued that she had done all that was reasonably within her power to comply with order 13 of the orders made on 16 March 2017 and, in the alternative, insofar as it was necessary, those orders should be varied to extend the time for the wife to comply with those orders.

5. The husband disputed the wife’s contentions that she had complied with the orders and indicated that, as he had not received notice of the wife’s intended application to vary the orders made on 16 March 2017, he required additional time to meet that case. In the circumstances I considered that request to be reasonable.

6. As a result, on 28 July 2017 I made the following orders:

   1. I DIRECT that the Respondent within 14 days of the date of these orders file and serve an Application in a Case supported by such affidavits upon which she intends to rely.

   2. I DIRECT that the Applicant within 28 days of the date of these orders file and serve a Response to the Application in a Case together with any supporting affidavits upon which he seeks to rely.

   3. The matter is listed for further hearing in respect of the Wife’s Application in a Case before McClelland J for 1 day to commence at 10.00 am on 15 September 2017.

   4. The parties’ costs of today are reserved.

   5. The parties are granted liberty to apply on apply on forty-eight (48) hours’ notice to my Chambers and to the other parties.

7. This matter has been listed today as a result of Chambers receiving a request from the wife by letter attached to an email dated 9 August 2017 for the hearing on 15 September 2017 to be adjourned. The wife has not complied with the obligation set out in order 1 of the orders made on 28 July 2017. Accordingly, the attention of the wife was drawn to rules 11.02 and 11.03 of the Family Law Rules 2004 (Cth) (“the Rules”). By way of summary, those Rules provide that a step taken after the time specified for the taking of the step by a procedural order is of no effect unless relief from the effect of rule 11.02 is granted pursuant to rule 11.03.

8. The matter has been set down the hearing on 15 September 2017 for the purpose of considering three matters:

   a)Whether the wife has done all that was required of her in accordance with the orders made on 16 March 2017 to comply with the orders to acquire the former matrimonial home at located at K Street, Suburb L.

   b)To consider the wife’s application to vary the orders made on 16 March 2017 to extend the time for compliance with those orders.

   c)In the event of wife failing to succeed in respect to her arguments concerning those matters, what orders are appropriate to the effect the sale of the L property.

9. It is therefore necessary to consider the wife’s application to adjourn the hearing of 15 September 2017 and also whether I should grant relief pursuant to rule 11.03 by extending the time for her to file an application to vary the orders made on 16 March 2017.

10. The wife argued that the request for an adjournment should be granted because she is in the process of attempting to secure the services of a solicitor. The wife stated that this had been challenging because she is experiencing issues regarding the payment of fees to her former solicitors, who represented her in the substantive proceedings. Those solicitors, she explained, hold a lien over her file.

11. The wife indicated that while she is yet to retain a solicitor, she desires to instruct senior counsel who appeared for her in the substantive proceedings to represent her in respect to the issues that are the subject of these proceedings.

12. With respect, that reason is not a sufficient reason for the adjournment.  Further delay in the finalisation of this matter would, in my view, be contrary to the interests of the parties and the public interest in disposing of matters as soon as is reasonably practicable.

13. I am satisfied that the wife has sufficient time to retain legal representation for the hearing on 15 September 2017 even if it is the case that the counsel of her choice is not available. I note that senior counsel for the father has indicated that he is similarly not available for the hearing on 15 September 2017.

14. The second matter that I am required to consider is in respect to the wife’s failure to file an application and supporting affidavit in accordance with order 1 of the orders made on 28 July 2017. That order provided for the wife to file an application and supporting affidavit in the event that she wished to make an application for variation of the orders made on 16 March 2017. In considering whether to grant that relief, I am required to have regard to the matters set out in Rule 11.03.

15. Rule 11.03(2) provides:

    (2) In determining an application under subrule (1), the court may consider:

    (a)  whether there is a good reason for the non-compliance;

    (b)  the extent to which the party has complied with orders, legislative provisions and the pre-action procedures;

    (c)  whether the non-compliance was caused by the party or the party's lawyer;

    (d)  the impact of the non-compliance on the management of the case;

    (e)  the effect of non-compliance on each other party;

    (f)  costs;

    (g)  whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and

(h)  if the application is for relief from the effect of subrule 11.02(1)--whether all parties consent to the step being taken after the specified time.

1. In terms of rule 11.03(a), the first matter to consider is whether there is good reason for the non-compliance. In that respect, Ms Danell indicated that, as noted, she had difficulty retaining legal advisors and, specifically, she had not had the opportunity of retaining senior counsel of her choice.

2. The wife’s affidavit sworn on 21 August 2017 attaches an email from the wife’s previous counsel to Mr Clayton Long indicating that he would be prepared to act on behalf of the wife but that he required an instructing solicitor and for the wife to accept his costs agreement.

3. Despite those stipulations and despite the fact that the counsel of her choice was not available on 15 September 2017, as noted, it is my view that the wife has had the opportunity to engage other legal advisors.    

4. It is my view that a new legal representative could have been sufficiently briefed with a copy of the judgment of 16 March 2017, together with any supplementary documentation relating to events that have occurred since that time.  Accordingly, the wife has not satisfied me that there was a good reason for non-compliance with that 14 day timetable as set out in the orders of 28 July 2017. 

5. The other matter of relevance is set out in rule 11.03(d) which relates to the effect of non-compliance on each other party. The effect on the husband of granting an extension for the filing of an application to vary the orders would be that he has been deprived of an opportunity of adequately considering the matter and obtaining relevant evidence to respond to the application.

6. Senior counsel for the father also raised the appropriateness of my considering an application for variation of the orders that I made on 16 March 2017 in circumstances where my judgment of that date made findings relating to the father’s credit.

7. That matter having been raised, I consider that it would be appropriate for me to recuse myself from consideration of an application that the wife may make to vary the orders that I made on 16 March 2017. This would result in the matter being re-allocated to another judge with further consequent delay.

8. The third matter of relevance is the issue of costs as referred to in rule 11.03(f). If I granted an extension of time, the husband would incur additional costs in meeting such an application.

9. For these reasons I do not grant relief pursuant to rule 11.03 and, accordingly, the provisions of rule 11.02 apply. I do not grant the mother an extension of time for the filing of an application for variation of the orders that I made on 16 March 2017 for the purpose of that application being considered before me on 15 September 2017.

10. Having noted that, I decline that relief, however the wife is certainly free to exercise her rights under the Family Law Act 1975 (Cth) (“the Act”) generally, including, if she so chooses, to make an application that may be available to her under section 90SN of the Act. The proviso to any such application, however, is that it would not be dealt with by me on 15 September 2017.

11. Accordingly, I confirm that, on 15 September 2017, the matters that will be considered will be:

    (1)whether, as at close of business 16 June 2017, Ms Danell had done all that was necessary to comply with the orders that I made on 16 March 2017; and

    (2)and, in the event that I find that had not occurred, what orders should be made to effect the sale of the L property, those orders being of a mechanical or procedural nature. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 22 August 2017.

Associate: 

Date:  14 September 2017