Sandford & Macy
[2022] FedCFamC1F 902
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sandford & Macy [2022] FedCFamC1F 902
File number: SYC 5112 of 2015 Judgment of: CAMPTON J Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Proceedings on foot for more than seven years – Significant non-compliance with trial directions and orders of the Court – Proceedings listed on the Court’s own motion for submissions as to the possible striking out of the Initiating Application and Response pursuant to s 69 of the Federal Circuit and Family Court of Australia Act2021 (Cth) – Parties’ conduct may be permissible under pirate code but is not under directions and rules of this Court Legislation: Family Law Act1975 (Cth) s 90SM
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6
Cases cited: Jobson v Clarke [2021] QDC 320 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 11 November 2022 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
SYC 5112 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANDFORD
Applicant
AND: MS MACY
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The de facto husband have leave to make an oral application for an adjournment of the proceedings for a period of 18 months so as to permit the progression and conclusion of the tribunal proceedings in the UK relating to the sale of a real property, and implicitly for the final hearing currently listed in the Sydney Rolling List commencing on 6 March 2023 to be vacated.
2.The de facto husband’s oral application for an adjournment is dismissed.
3.The proceedings be listed before me at 4.00 pm on 22 November 2022, in person at the Sydney Registry of this Court, for the consideration on the Court’s own motion, of the Initiating Application of the de facto husband and the Response to an Initiating Application of the de facto wife and any amendments thereto, as to property adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) being struck out pursuant to s 69(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Sandford Macy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Introduction
Mr Sandford (“the applicant”) seeks orders for the adjustment of property arising from the termination of a de facto relationship with Ms Macy (“the respondent”) in or around September 2014.
The applicant commenced these proceedings by way of an Initiating Application filed on 5 August 2015. The respondent filed a Response to that Initiating Application on 19 October 2015. She filed an Amended Response on 14 March 2016.
The parties have a child who was born in 2013 and is now nine years old. Final consent orders were made as to the parenting arrangements for the child on 3 November 2020.
Procedural history
The failure and neglect of the parties to meaningfully prosecute the financial dispute between them over the past eight years has been wholly unacceptable.
The proceedings were most recently listed before a deputy registrar for the purposes of attempting to progress the first stage of the financial litigation pathway on 5 July 2021. On that date, the deputy registrar recorded the continuing spats between each of the parties contending that the process of making full and frank disclosure of relevant financial circumstances pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) remained ongoing, and that cast against assertions of a lack of financial disclosure, even after years of litigation, the matter was unable to proceed to a financial conciliation conference. The matter was placed in the pool of matters for allocation of trial dates by the deputy registrar on that day.
The proceedings were allocated to my docket and first came before me for case management on 25 March 2022. On that date, the parties advised the Court that there had been some offers of settlement that had passed between them and expressed a desire to resolve their outstanding financial dispute. That compromise has not been achieved.
Broadly, the property available to the parties for adjustment appears to comprise the following:
(a)A real property in the United Kingdom (“the UK”) held in the applicant’s name, subject to a mortgage (“the UK property”);
(b)A joint bank account holding slightly in excess of $100,000;
(c)Each parties’ personal bank accounts;
(d)Motor vehicles and furniture; and
(e)Each parties’ accumulation superannuation interests.
Trial directions
The matter came before me again on 3 June 2022 and again on 18 July 2022. On that last date, I made orders dispensing with the requirement for the parties to engage in a conciliation conference pursuant to s 90SM(9) of the Family Law Act1975 (Cth) (“the Act”) and listed the proceedings for trial over two days in the Sydney Rolling List commencing on 6 March 2023. Directions were made for the applicant to file an Amended Initiating Application setting out with particularity the final orders he sought and for the respondent to file and serve any Amended Response to the Initiating Application setting out with particularity the final orders she sought. Neither party complied with that direction.
Further directions were made for the parties to file updated Financial Statements, single consolidated trial affidavits and undertakings as to disclosure pursuant to the Rules. Again, neither party complied with those directions.
Directions were also made for the applicant to make additions to a balance sheet filed by the respondent on 29 May 2022, and thereafter for an agreed version of that joint balance sheet to be filed. Again, neither party elected to comply with those directions.
Having regard to the non-compliance of the parties with the orders made on 18 July 2022, coupled with the order made on that date that the parties would not be permitted to file or rely on any further or past affidavits at trial without leave of the Court, there is currently no evidence before the Court for the purposes of the trial listed to commence in the Sydney Rolling List on 6 March 2023.
Future conduct of the proceedings
There has historically been some criticism of what was the Family Court and its delays in providing expeditious trial dates to litigants.
Importantly, this Court is regulated by the mandates contained in s 68 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”), being inter alia that the Court must conduct proceedings in a way that is consistent with the overarching purpose identified in s 67 of the FCFCOA Act. That section provides that the Court is required to ensure that litigation and the management of the Court’s workload occurs according to law as quickly, inexpensively and efficiently as possible. The FCFCOA Act requires the Court to efficiently use its judicial and administrative resources, to be efficient in the disposal of its overall caseload and to ensure the disposal of all proceedings in a timely manner at a cost that is proportionate to the importance and complexity of the matters in dispute.
Section 69 of the FCFCOA Act creates a capacity of the Court in its promotion of its overarching purpose (as identified) to dismiss proceedings in whole or in part, or to strike out any Initiating Application or Response to an Initiating Application in circumstances where parties have failed or neglected to comply with its directions.
I have today sought submissions from each party as to why the Court ought not strike out the Initiating Application and any Response thereto in circumstances of the chronic failures of the parties to comply with the Rules and the orders and directions made by the Court to date.
In his submissions, the applicant identified that a primary concern in the proceedings was the parenting of the child of the parties. That submission carries very little weight in circumstances where the final orders as to the child’s parenting were made two years ago.
The applicant identified issues as to his mother’s health in the UK and the loss of a potential buyer of the UK property as reasons explaining the failure to comply with Court directions and orders. It was further his submission that there now is a real possibility of tribunal proceedings in the UK being required to be commenced as to the freehold and leasehold interests attaching to the UK property (the costs of those proceedings estimated to be in the range of 180,000 AUD). These possible proceedings would not be concluded for 18 months and hence the s 90SM dispute ought to be adjourned until they are concluded.
Insofar as there has been an application made orally today by the applicant for an adjournment of the proceedings for a period of 18 months to permit the progression and conclusion of the aforementioned tribunal proceedings in the UK, I grant the applicant leave to make such oral application. It is refused for the reasons identified herein.
I asked, in the course of exchanges today, what value applicant contends the UK property would have for the purposes of any property adjustment hearing. He responded that he did not know. There is no suggestion that applicant will be in a position to ensure there is some valuation evidence available before the Court to enable the determination of any property adjustment pursuant to s 90SM of the Act at the forthcoming hearing.
The applicant submitted, and I accept for the purposes of these reasons, that the prospects of he and the respondent compromising the financial litigation have been exhausted.
In reality, there was no meaningful submission put forward by the applicant as to why the relief he sought and that sought by the respondent ought not be struck out and they be left to determine how to adjust their property as between themselves, without causing further strain and expense on the resources of the Court to the prejudice of other litigants and other stakeholders.
In her submissions, the respondent contended that she was unable to comply with the Court’s directions to prepare the matter for trial as the applicant had not yet complied with those directions. I reject that submission. The material to be filed by the respondent was not dependant on the filing material, if any, by the applicant. She makes complaint, again, as to disclosure failures by the applicant and contends that in those circumstances she is unable to articulate what her substantive relief would be or what ought be contained in her affidavit material. I also reject that submission. The capacity of the Court to be robust in circumstances where it is established, on the evidence, that there has been a failure or neglect to comply with the obligations of disclosure as codified in ch 6 of the Rules is plain and unequivocal.
It was further the respondent’s submissions that the financial proceedings have been listed before the Court on 16 occasions to date and that this is the first time she has not complied with the orders or directions made. That may well be so, but it does not assist the Court, its resource allocations including to other stakeholders and the matters identified earlier in these reasons in determining whether the matter can proceed to trial as directed.
The respondent is uncertain as to the value of the UK property for the purposes of the forthcoming trial, and is unable to reach agreement with the applicant as to that value. She does not indicate, for example, that she will be in a position to put any admissible evidence as to the value of the UK property before the Court for the purposes of the listed trial.
During the course of submissions the respondent said that she does “not want to be here” [part of the court litigation] for the purposes of the property adjustment case. If that is the case, it is a simple matter for her to discontinue her Amended Response filed on 14 September 2016. At least to my mind, the respondent has not made clear whether she is in fact seeking any orders for property adjustment pursuant to s 90SM of the Act at all.
So that it is clear and unequivocal, the chronic failures of the parties to comply with orders and the rules of the Court will not be tolerated. During the course of submissions, I identified to the parties that directions made are the expectations of the Court to ensure the prompt disposition of proceedings. It is inconsistent, as identified earlier in these reasons, for parties merely to ignore orders and directions of the Court and the obligations placed upon them by way of the legislation but expect that the Court will continue to devote resources to the resolution of their dispute. It is further inappropriate for parties to treat the directions and orders of the Court more as suggestions or guidelines, rather than actual rules. That might be acceptable for the pirate code, but not for directions and orders of this Court (see Jobson v Clarke [2021] QDC 320 at [16]).
In the circumstances, I will list these proceedings on the courts own motion before me for the purposes of the striking out the Initiating Application of the applicant and the Amended Response to an Initiating Application of the respondent on 22 November 2022 at 4.00 pm. For the purposes of that listing, each party is directed to attend the Sydney Registry in person.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 11 November 2022