SIGLEY & CULLEN

[2015] FamCA 585

FAMILY COURT OF AUSTRALIA

SIGLEY & CULLEN [2015] FamCA 585

FAMILY LAW – Procedure:  adjournment because wife ill.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sigley

RESPONDENT: Ms Cullen

FILE NUMBER: MLC 11196 of 2013

DATE DELIVERED: 16 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Skerlj

SOLICITOR FOR THE APPLICANT: Coulter Roache Lawyers

THE RESPONDENT: No appearance

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sigley & Cullen 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 MELBOURNE

FILE NUMBER: MLC 11196 of 2013

Mr Sigley

Applicant

And

Ms Cullen

Respondent

REASONS FOR JUDGMENT

1. This is the day that the final hearing between Mr Sigley, to whom I shall refer in these reasons as “the husband” and Ms Cullen, who I shall refer to as “the wife”, in which property orders and spousal maintenance issues were to be determined.  This case has an unfortunate history, in the sense that it was commenced in 2013 in the Federal Circuit Court and, as I have previously indicated with some concern, adjourned to this Court.  It was listed in February 2015 for final hearing and it would seem on that listed day, the parties compromised their positions and asked for time whilst they implemented the settlement arrangements.

2. Subsequent to that day, the settlement fell apart, notwithstanding documentation had been executed.  Accordingly, the case was listed to commence today. 

3. Today, the husband appears by counsel, but the wife has not appeared.  On 14 July, so two days ago, the wife filed an application in a case seeking orders that the final trial be adjourned, as she explained it, “due to unexpected health issues”.  In her affidavit in support of that application, she referred to the fact that she had been referred to an endocrinologist, a Prof B.  She attached to her affidavit, a letter from Prof B dated 10 July, which reads:

   [the wife] has a significant medical problem and will be medically unfit to attend Court until further notice. 

4. That is consistent with what the wife said in her affidavit.  She deposed to the fact that Prof B had told her on 9 July that it may be many months before she was well enough to attend Court and that would depend upon the success of the treatment and whether further surgical intervention or radiation would be required.  In response to that application, the husband filed on 15 July, so yesterday, a document seeking to dismiss the wife’s application for the adjournment if she was not present, asking the Court to proceed in her absence on an undefended basis.  In the alternative, if the application for the adjournment was granted, he sought some partial property settlement orders.

5. The basis upon which the husband opposes the wife’s application for the adjournment was that there was a paucity of evidence as to why the adjournment was necessary.  The husband relied upon a general practitioner, who raises doubts as to the necessity for the treatment at this particular time, and indeed, the impact of any such treatment on a person, such as would debilitate them and make them unable to participate in Court proceedings.  It will be obvious, therefore, that I have this conflict in the evidence between a general practitioner who concedes that he does not know of the wife’s medical details, and certainly has not examined her, and a rather broad-brush statement by Prof B on his letterhead, saying that she was not capable of coming to Court.

6. In my view, this is a case that needs to be adjourned because I cannot be satisfied that the wife is being difficult about not wanting the case on.  Whilst I suspect I am being asked to infer that that is the case,  have an endocrinologist who is obviously a professor in his profession, indicating that there is a problem.  I could not conclude that the wife is being difficult or does not want to participate.  The dilemma is I do not know how long her incapacity will continue and in that sense, it seems obvious that I should fix a date in some weeks’ time and put the onus on the wife to call some proper evidence to indicate why the case cannot proceed on that day. 

7. If indeed, this is a long term problem and she will be incapacitated, such that the case cannot proceed under her hand, then it is conceivable that a case guardian should be contemplated. 

8. I propose to grant the wife’s application for the adjournment, but not as she would have it, on an unrestricted basis. 

9. The second dilemma in this case is that in his responding document, the husband went on to seek a partial property settlement.  At first blush, the argument sounded relatively simple.  The application seeks that orders be made in relation to what the parties had in common between them in their respective outlines.  The wife’s case outline was filed on 23 February and the husband’s on 13 July.

10. In a very helpful analysis, Mr Skerlj has shown me where the parties agreed and where they were apart and he promoted at least four, if not more, orders that should be made on an interim basis.  However, having looked at the affidavit that the husband swore in June, it is clear that the major problem seems to be in the area of the self-managed superannuation fund and whilst the wife in February was clearly indicating that the husband could have all of the superannuation fund, her subsequent correspondence with the fund managers, as distinct from the trustees, would indicate that that is not entirely what she is talking about.  This is an argument about the control of the fund, rather than its value, and the wife seems to be making complaints that she has been excluded from decision making and accordingly, the fund may not be what it seems.

11. If, as it is submitted by Mr Skerlj, the wife’s behaviour has not been proper in relation to the managers of the fund and that she is causing problems, then the appropriate solution is that an application be made to remove her as one of the two trustees.  In the correspondence, the wife makes a number of demands for action in relation to the sale of various assets of the fund, but of course, she is only one of two trustees, the husband being the other.  The wife did not have the right to make those demands as any decisions would have to be joint.  If she did not get what she wanted, then she too could make an application for removal of the husband as a trustee.

12. The sensible solution, therefore, seems to me, because it is now becoming a problem in the case, to deal with that issue with some expedition and I propose, therefore, to allow the husband to ventilate that part of his application in a few days’ time. 

13. Obviously, part of the wife’s application for the adjournment was that she could not come to Court.  This is a discrete issue and the wife does not need to attend Court, but I should hear what she says and that can be done by telephone.  If she wants to call some evidence, either from herself or indeed, in relation to the bigger picture associated with her health, I would permit her to call Prof B by telephone as well.

14. Whilst that has some logistical problems, the technology should allow it to be done.  I am also not comfortable about making orders of an interim nature which would amount to a partial property settlement today because the husband’s response was only served upon the wife electronically yesterday.  Having regard to the uncertainty about her medical condition, I am not confident that I could say she even knows of the application, even if the email was sent, as indicated, by an affidavit of service.  It is for that reason that I am going to give the wife the opportunity to participate in respect of that discrete issue that is, partial property settlement and injunctive orders.  There is also the prospect of a case guardian if the wife’s evidence is that she will not be able to participate in the foreseeable future.

15. For those reasons, I propose to grant the husband’s request that paragraph 3 of his response filed on 15 July be adjourned to 10 am on 22 July 2015.  I will make the usual orders in relation to giving the wife leave to attend and call evidence by telephone. 

16. I will list this for 21 September for final hearing, subject, on that day, only to any part-heard case that may still be running.  In other words, the parties need to be ready to proceed on 21 September.

17. That leaves the third and final issue to be determined, which is the question of a subpoena.  It appears that the wife issued four subpoenae and the husband objected specifically to one of them.  A registrar has transferred that matter to me for determination.  Mr Skerlj encouraged me to determine that issue today, but it is somewhat unclear what the wife’s position is and I should put that over to 21 September.  It seems that the recipient of the subpoena, who is the general practitioner for the husband, has complied with the subpoena so the documents are there.  The only objection is raised by the husband.  The husband’s objection is on the grounds of relevance and he gives evidence of that in his affidavit.

18. I have asked for the Court file to be examined as to the basis upon which the registrar granted the leave to the wife to issue a subpoena as a person without legal representation and there is a letter which is apparently on the court file in handwriting, signed by Ms Cullen and it is dated 27 April.  I am not aware of whether the husband has seen that letter and I do not propose to read it, because I am not determining the matter today, but I will release that letter for the husband’s legal practitioners to examine it.  Accordingly, I will adjourn the objection to the subpoena issue to 21 September as well, but to the extent that the husband wants that issue determined on 22 July, I propose to allow him to make an oral application on that day for that issue to be determined, unless the wife can explain what the basis of that application was.  Accordingly, I will make orders in those terms. 

RECORDED  :  NOT TRANSCRIBED

1. I reserve the husband’s costs.  I will reserve them till the trial rather than to next week to avoid complicating the issues and I will certify for counsel and also that it was appropriate for a solicitor to attend that day. 

2. Paragraph 3 is adjourned, noting that the husband is proposing to write to the wife forthwith to advise what specific orders he is going to seek. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 July 2015.

Associate: 

Date:  23 July 2015