Skinner and Cluny

[2012] FamCA 82

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY [2012] FamCA 82

FAMILY LAW - PROPERTY SETTLEMENT - Adjournment of proceedings - Where Respondent's case amended on the first day of hearing - Where Applicant has insufficient time to prepare their response to that amendment

APPLICANT: Mr Skinner

RESPONDENT: Ms Cluny

FILE NUMBER: BRC 812 of 2010

DATE DELIVERED: 27 February 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 27 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carew

SOLICITOR FOR THE APPLICANT: Cooper Family Law

COUNSEL FOR THE RESPONDENT: Mr Hackett

SOLICITOR FOR THE RESPONDENT: Hirst & Co Solicitors

Orders

1. The Respondent provide, by way of an Amended Case Information Document, specific details of the Orders sought as currently appearing in paragraphs 21 and 22 of Exhibit 1.

2. The property proceedings in this matter be adjourned to the Registry for allocation of a further trial date.

3. The parties have leave to inspect the documents produced under subpoena by Vodafone.

4. Within fourteen (14) days of the date these Orders are made, the Applicant file and serve an Amended Application.

5. Within fourteen (14) days of the filing of the Amended Application, the Respondent file and serve an Amended Response.

6. Within twenty-one (21) days of the filing of the Amended Response, the Applicant file and serve a Case Outline.

7. Within seven (7) days of the Applicant filing his Case Outline, the Respondent file and serve her Case Outline.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Skinner & Cluny 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 BRISBANE

FILE NUMBER: BRC 812 of 2010

Mr Skinner

Applicant

And

Ms Cluny

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has an unfortunate history in terms of reaching the trial stage. I heard the matter in about September of 2011 from memory, at which stage it seemed that issues had been agreed but then apparently that agreement fell away and the matter had to proceed to a further trial that is now listed before me today.

2. On 31 January 2012, the Respondent Wife filed a third further Amended Response to her Initiating Application. That document showed that what was sought relevantly for present purposes was an Order for spousal maintenance in the amount of $500.00 per week and in respect of child support, a separate Order was sought that there be a departure from the administrative assessment of child support in the amount of $1,200.00 per week. Further to that document, a Case Information Document was filed by the Wife on 23 February 2012 which again repeats that the Order for spousal maintenance was sought in the amount of $500.00 per week, notably with the words, “…until such time as the Wife obtains full-time employment…” and at paragraph 22, a separate and discreet Order was sought by way of departure of child support in the amount of $1,200.00 per week.

3. Ms Carew, who appears for the Applicant Husband, says that essentially agreement was reached on the payment of spousal maintenance in the amount of $500.00 per week, at least agreement in the sense of that not being put in issue by the Applicant Husband on the trial. That is, that he was prepared to consent to an Order that the Husband pay by way of spousal maintenance the amount of $500.00 per week. The departure amount, so far as child support is concerned, remained in issue. That is, that the amount of $1,200.00 per week was not conceded by the Husband. Rather, it is said that in reliance upon what the Wife had deposed to as her needs, taking into account some further allowance for a recent change so far as the payment of rent is concerned, that an amount of $408.00 was advanced as being the amount of child support departure.

4. I should note that in addition to the monetary amount of the child support in issue, the Wife also sought other periodic child support in respect of various costs, including the child’s school fees and associated expenses and also private medical health cover, and in addition a discrete Order was sought of $1,000.00. There was also, perhaps somewhat confusingly, a retrospective spousal maintenance and child support Order sought in a lump sum of $93,656.07.

5. It seems to me that whilst it is true that a party is entitled to rely upon the Orders sought as appearing in an Application or a Response, there was material within the Wife’s affidavit material that would indicate the prospect of her needs being a matter that is the subject of issue at trial, particularly having regard to, amongst other things, the retrospective nature of the Orders that were sought by way of a lump sum. That noted, it also seems to me that, as Ms Carew says, there was reliance placed on the Orders actually sought in the Further Amended Response and in the Case Information Document referred to.

6. In all the circumstances, it seems to me that I ought permit the Wife leave to amend her application, but allow an opportunity for the Husband, via his legal representatives, to have sufficient opportunity to meet the now amended case advanced by the Wife. This matter has been set down for two days, to commence this morning, and I did note in the course of reading the material that it seems a staggering amount of legal costs has been expended by the parties thus far on what, at least to me, seems to me to be a relatively modest overall pool and a modest overall area of disputation. I would not like to see the time available that has been allocated being lost, but I want to afford the Husband natural justice and procedural fairness in obtaining enough time to meet the now amended case advanced by the Wife.

7. For those reasons, I make the Orders as set out at the commencement of these reasons.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 February 2012.

Associate: 

Date:  2 March 2012