Skinner and Cluny (No. 3)

[2011] FamCA 723

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY (NO. 3) [2011] FamCA 723

FAMILY LAW - PROPERTY SETTLEMENT - Adjournment of proceedings

Queensland v JH Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT: Mr Skinner

RESPONDENT: Ms Cluny

FILE NUMBER: BRC 812 of 2011

DATE DELIVERED: 06 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 06 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jacoba Brasch

SOLICITOR FOR THE APPLICANT: Mr Adam Cooper of Cooper Family Law

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr Ross Hirst of Hirst & Co Solicitors

Orders

1. The Husband’s application filed on 12 September 2011 is adjourned to 3.00pm on 13 October 2011 before Registrar Coutts for directions.

1. Costs of and incidental to the proceedings are reserved to the trial judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Skinner & Cluny (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 812 of 2011

Mr Skinner

Applicant

And

Ms Cluny

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This was to be the trial of the proceedings concerning property settlement, parenting issues, spousal maintenance and child support (including applications by the Wife for retrospective payments in those respects), plus competing applications for costs of the proceedings.

2. The Wife applies for an adjournment of the trial, an application which is neither consented to nor opposed by the Husband, on the basis that as at the 29^th of August 2011, the Husband, via his then legal representatives, had communicated to the effect that property issues were agreed. It was only yesterday, the 5^th of September 2011, when it seems that it was communicated on behalf of the Husband to the Wife’s representatives that the Husband’s position, so far as the resolution of property issues, had changed; namely that he no longer agreed to resolve those issues.

3. Essentially, the Wife’s application or the prejudice that she points to is that on a recently disclosed document further lines of enquiry need to be made with respect to a report from W Accountants; but perhaps more significantly so far as prejudice is concerned, the Wife wishes to consider her position so far as obtaining advice and pursuing an application in effect that would hold the Husband to the agreement said to have been agreed to prior to the Husband resiling from it as referred to. There is also from the Wife’s side the position that it is said there is some complexity about the property proceedings given the contents of a forensic accounting report that I have been referred to and that if the property issues were to be live issues agitated at a trial, the Wife would seek to have the representation of Counsel who had apparently been retained for the trial, but who was released from that retainer as at 29 August when it seemed that the property issues had been resolved.

4. Clearly this Court has the power to adjourn proceedings whenever it seems to the court that it is necessary to do justice between the parties and there is ample authority for that proposition. That said, the Court does not readily grant adjournments in circumstances where the case management procedures of this Court are such that parties certify a matter in all respects ready for a trial and do so at a callover at which trial dates are set. Courts commonly, these days, have regard to matters of case management in terms of considering adjournments and indeed that approach is endorsed by the High Court in Queensland v JH Holdings Pty Ltd (1997) 189 CLR 146. However, as that case also is authority for, case management is not an end in and of itself, and the overriding consideration is doing justice to the parties and the case.

5. It is of concern to the Court in this case that that parties have to date spent, I am informed from the Bar table, in the case of the Husband some $229,000.00 and the Wife, $300,000.00 on costs. In circumstances where the period of cohabitation between the parties was some sixteen months and the marriage itself was less than twelve months, it is staggering that an amount in excess of $500,000.00 has been spent by the parties between them. That is a matter to which I have had regard in terms of the need to bring this matter to an end. That said, it seems to me that the Wife raises legitimate matters about which she wishes to pursue advice about holding the Husband to an agreement which seems, in the scheme of things, to convey to her relatively modest items of property, although I have to say that I am not sufficiently on top of the material or the evidence generally to know what the true effect of the so-called “agreement” would have been in terms of outcomes.

6. In the circumstances, it seems to me that the matter ought be adjourned and I propose to make Orders firstly adjourning the proceedings to the Registry to a date for further case management to be undertaken, and I will make an Order that each party’s costs of and incidental to the adjournment and the proceedings today be reserved to the trial judge.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 6 September 2011.

Associate: 

Date:  06 September 2011