SUTCLIFF & SUTCLIFF

[2017] FamCA 512

FAMILY COURT OF AUSTRALIA

SUTCLIFF & SUTCLIFF [2017] FamCA 512

FAMILY LAW – Undefended interlocutory proceedings need a final hearing where husband is not responsive.  Matter set down.

FAMILY LAW – COSTS.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sutcliff

RESPONDENT: Mr Sutcliff

FILE NUMBER: MLC 3132 of 2016

DATE DELIVERED: 5 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kildea

SOLICITOR FOR THE APPLICANT: Coulter Roache Lawyers

THE RESPONDENT: No appearance

Orders

1. That the contravention application filed 8 May 2017 is marked struck out.

2. That the wife is appointed as the trustee for sale of and shall forthwith sell:

   (a)the livestock owned by the partnership of Mr and Ms Sutcliff; and

   (b)the plant and equipment owned by the partnership.

3. That for the purposes of such sale, the wife forthwith make such arrangements as are necessary to give effect to her role as a trustee including if necessary, obtaining valuations in respect of those assets prior to any sale.

4. That the wife is appointed as the trustee of the husband’s interest in B Pty Ltd for the purposes of the liquidation of and winding up of the said company.

5. That the wife be at liberty to issue subpoenae as she is so advised to obtain financial details and all partnership documentation from:

   (a)the husband’s accountant C Accountants;

   (b)the Westpac Banking Corporation; and

   (c)the Bendigo and Adelaide Bank Limited.

6. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 12 September 2017 subject to any part heard case as a one day case.

7. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

8. By 4 pm on 4 August 2017 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)all affidavits of evidence to be relied upon; and

   (c)a financial statement.

9. The applicant pay all required court fees by 4 pm on 4 August 2017.

10. If the husband fails to file a response, affidavit of evidence in chief and a financial statement by 18 August 2017, the wife has liberty to seek to proceed on an undefended basis such outstanding applications as are before the court.

11. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

    SUBPOENAE

12. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

13. By 4 pm on 11 September 2017 all parties file electronically to … a case outline in one document setting out:

    (a)    the outline of the issues in dispute;
    (b)    the list of the affidavits to be read;
    (c)    a concise set of orders to be sought;
    (d)    the list of objections to evidence requiring a ruling;
    (e)    a list of assets and liabilities.

    AND THE PARTIES SHOULD NOTE:

    A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

    B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

14,That the wife’s application seeking interim orders filed 8 May 2017 is otherwise dismissed save as to the issue of costs.

1. That the husband pay the wife’s costs fixed in the sum of $3150.

2. That the reasons this day be transcribed and be placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sutcliff & Sutcliff 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 3132  of 2016

Ms Sutcliff

Applicant

And

Mr Sutcliff

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Ms Sutcliff on 8 May 2017.  It is another one of those financial cases where one party wants a resolution of what is an unhappy marriage relationship where the respondent has participated at times, not bothered to participate at others, and at the most significant part of the litigation when the parties should be getting on with their lives, he decides he will not participate. 

2. The parties have been separated for the best part of two years now, and the application was filed in the Court in April 2016.  The parties’ lives, and in particular that of the wife, has been on hold for a long time.  The nature of the application before the Court indicates that the husband is taking his time.  It is time, therefore, to give him a bit of a hurry along. 

3. The applications before the Court today included a contravention application.  It is clear from orders that have previously been made that the husband has not complied.  On the basis that I have offered the wife a final hearing, that contravention application is not pressed. 

4. The application that is extant is in relation to getting this case to a final conclusion.  It is easy to simply set the matter down for trial, but without the relevant information, it is very difficult to decide what to do. 

5. The parties in this case conduct business under a partnership between themselves.  I am told, and there is no evidence to the contrary, the partnership status is effectively being ignored by the husband.  The wife does not seem to have taken any steps to enforce the partnership rights that she has.  The ownership of property within a partnership obviously belongs to the partners rather than to the partnership. 

6. In addition to the partnership, there is also the question of a company.  Previously, that company was to be deregistered.  Deregistration does nothing much other than leave the ASIC in the position where they do not send notices in the future.  It does not resolve the parties’ entitlements as shareholders and/or directors of the company.  That needs to be resolved as well.

7. The business conducted by the partnership occurs at a property in D Town, and I am told that that is in the process of being sold.  I have little confidence that the sale will proceed without difficulty, in which case the wife should be in a position to force the sale in the event that the husband is not cooperative. 

8. The husband has had ample opportunity to participate in the proceedings.  There have been two hearings where he was represented by lawyers.  He has not indicated what sort of orders he is seeking, and on the basis of the sale of the property, it must mean that the business has to be conducted somewhere else.  I understand from the wife’s position that she does not want to be a participant with the husband in that business.  On that basis, it should clearly be wound up. 

9. I propose, therefore, to set the matter down for trial on 12 September as a one-day matter.  The wife is to file an amended application setting out with particularity what orders she is seeking by 4 August.  The husband is to file a response, any affidavit material upon which he intends to rely and a financial statement by 4 o’clock on 18 August.  If he fails to do so, then the wife has liberty on 12 September to proceed on an undefended basis, which effectively means there is a real chance that he will be excluded from the proceedings.  I will otherwise make some procedural orders.

10. The wife then seeks an order for costs.  Although she seeks about $6000, it is conceded that that would be an order on an indemnity basis.  The Court can only make an order for indemnity costs in exceptional circumstances.  It is sad to say that in cases like this, it is becoming the norm rather than the exception, in which case I will be hard pressed to find this is an exceptional circumstance. 

11. That said, section 117 of the Act provides that in certain proceedings under the Family Law Act, each party shall bear their own costs unless there are circumstances to justify departure from that principle. In this case, the husband has failed to comply with orders, has not attended today, and seems to be taking his time about sorting out the rights of the wife to move on with her life. On that basis, his lack of cooperation justifies an order for costs.

12. The financial circumstances are clearly set out in the financial statements filed by the parties, and there is certainly no indication of impecuniosity on the husband’s part.  His lack of cooperation in the proceedings is one of the reasons why the Court should make an order for costs against him, and there are no community considerations such as Legal Aid to be taken into account.  In my view, this is a case where I should allow 1680 for counsel and $1500 for solicitor, a total of $3150, and I will make an order in those terms.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 July 2017.

Associate: 

Date:  19 July 2017