Swanson and Arlow

[2019] FamCA 681

FAMILY COURT OF AUSTRALIA

SWANSON & ARLOW [2019] FamCA 681

FAMILY LAW – PRACTICE AND PROCEDURE – oral application for adjournment of final hearing – application granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Swanson

RESPONDENT: Mr B Arlow and Mr C Arlow and Ms Sibley as legal personal representatives of Mr Arlow (deceased)

FILE NUMBER: BRC 12909 of 2016

DATE DELIVERED: 26 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 19 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Bunning

SOLICITOR FOR THE APPLICANT: O’Neill Family Law

COUNSEL FOR THE RESPONDENT: Mr M Kearney SC

SOLICITOR FOR THE RESPONDENT: Wonderley & Hall

Orders

1. That the Applicant’s oral application for an adjournment of the Final Hearing listed 4 to 7 November 2019 (inclusive) be granted.

2. That the trial dates of 4 to 7 November 2019 (inclusive) be vacated.

3. That these proceedings be adjourned for Case Management Hearing at 9.30am on 10 October 2019 in the Family Court of Australia at Brisbane.

4. That all parties be granted leave to appear by telephone on 10 October 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swanson & Arlow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRC 12909 of 2016

Ms Swanson

Applicant

And

Mr B Arlow and Mr C Arlow and Ms Sibley as legal personal representatives of Mr Arlow (deceased)

Respondent

REASONS FOR JUDGMENT

Introduction

1. The substantive litigation which engages these parties is the application for de facto property settlement commenced by the Applicant, Ms Swanson on 22 December 2016.  The Respondent was Mr Arlow.

2. The proceedings have been beset by delays since Senior Registrar Spink allocated the matter to the trial pool on 11 July 2017.  I have, in effect, been case managing the proceedings since the first Case Management Hearing before me on 21 June 2018.  In short summary, having ascertained that a threshold issue of whether a de facto relationship sufficient to found the jurisdiction of this Court under the Family Law Act 1975 (“the Act”) exists, the following events have occurred:

   a)On 21 June 2018, the Court was informed that “there are issues required to be assessed in relationship to the Respondent’s capacity to provide instructions and/or give evidence.”  As will became apparent, at that time the Court was unaware the Respondent had signed two lengthy detailed statements dated 24 March 2017 and 31 January 2018;

   b)On 20 August 2018, an Application in a Case on behalf of the Respondent was filed (supported by Affidavits of the Respondent’s sons [Mr C Arlow] and [Mr B Arlow] and by Geriatrician and Stroke Physician Dr F), seeking the appointment of [Mr B Arlow] as Case Guardian for the Respondent. The Application was opposed and when the Application came before the Court on 4 September 2018, by consent directions were made permitting the Applicant to direct questions to Dr F. Relevantly, at Order 4 the Court directed that the Applicant file and serve an Affidavit of evidence in chief of herself and any witnesses she intends to rely upon in support of the declaration she seeks pursuant to s 90RD of the Act;

   c)On 20 November 2018, the Applicant filed Affidavits of herself and her witnesses, and when the matter was again before the Court on 22 November 2018, the Court ordered Mr B Arlow be appointed Case Guardian for the Respondent and ordered that the Respondent cause to be filed evidence in response “no later than … 1 March 2019.”  The Court set the date of 1 March 2019 conscious of the fact that the Respondents were required, in some ways, to put a case together from documents.  That certainly was the impression given to the Court by Counsel then appearing, Mr D.  Counsel for the Applicant had urged the matter be listed for hearing of the threshold issue shortly after the Respondent’s material was filed, however for reasons articulated at the time, the Court refused to do so;

   d)Although the matter was scheduled to return to the Court on 27 March 2019, the parties jointly sought an administrative adjournment, which was granted, and the matter next came before the Court on 21 May 2019, where Mr Wilson QC appeared for the Respondent.  Disappointingly, at that time it was accepted that the Respondent had not complied with the direction to file material by 1 March 2019.  The Applicant’s costs were reserved and after the Court was told material would definitely be filed shortly, the hearing was set for four days commencing 4 November 2019, and listed for trial directions on 22 July 2019;

   e)The date of 22 July 2018 was set by the Court anticipating that the Affidavits by the Respondent would be filed by that date.  They were not, but a further issue also had arisen by that date.  In mid 2019 the initial Respondent Mr Arlow died.  In view of the incapacity prior to death suffered by Mr Arlow Senior, I am not certain his health delayed Affidavits being prepared, although I accept any death does cause grief and that may have contributed to the delay;

   f)On 22 July 2019, pursuant to s 90SM(8) of the Act, the current named Respondents (as the personal representatives of the deceased Mr Arlow) were substituted as the Respondents. Mr Looney SC appeared for the Respondents when the Court also directed the Respondents file their Affidavits for the hearing by 31 August 2019. Cautiously, frankly because of past behaviour by the Respondents in not complying with directions, the matter was listed for a further Case Management Hearing on 19 September 2019;

   g)On 30 August 2019, a number of Affidavits were filed on behalf of the Respondents.  Furthermore, on 17 September 2019 a Registrar dealt with some objections to subpoenae.

3. With this history, one might have expected no further developments could arise to put the trial on the threshold issue in jeopardy.  That has not proved to be the case.

4. On 17 September 2019, the Respondents filed two further Affidavits they seek to rely upon, namely:

   a)Affidavit of Mr G (solicitor) exhibiting an “Amended Statement” signed by the deceased and dated 24 March 2017; and

   b)Affidavit of Ms E (solicitor) exhibiting a statement of Mr Arlow attaching numerous annexures, signed 31 January 2018.

5. Confronted with this new material, Counsel for the Applicant has sought an adjournment of the trial due to commence on 4 November 2019.  Mr Kearney SC, who now appears for the Respondents, conceded that in view of the late filing of these two recent Affidavits, he requires leave to rely on the Affidavits.  He seeks that leave and further opposes any adjournment.

Discussion

1. I have read the two recent statements now relied upon.  Whilst the first statement deals more with the relationship and the second statement deals more with the alleged debt owed by the Applicant now to the Estate calculated at $921,959.86 (nett of repayments), the evidence is, as Mr Bunning correctly points out, relevant in some ways to the threshold question.

2. In circumstances where the essential thrust of the Respondents’ case is that a genuine domestic relationship (that both parties alleged commenced at the end of 2005) ceased in July/August 2007 and not in June 2015 as the Applicant contends, the nature and character of financial intermingling is relevant and all but one of the “loans” asserted by the deceased in Annexure “A” to his statement of 31 January 2018 were made after August 2007.

3. Although questions still remain as to why these statements were not produced or filed earlier when clearly available, it would not be fair in the context of this case to deny the Respondents the opportunity to rely on those statements.

4. However, in so doing, I am satisfied that the Applicant’s application for an adjournment – clearly reluctantly made in circumstances where the Applicant’s case has been fully articulated at least since November 2018 – should be granted for the following reasons:

   a)Although it might be correct that all the documents attached to the statement of Mr Arlow have otherwise been discovered, the statement provides context – a context available to the Respondents since the statements were signed and not, it seems, affected by the deteriorating capacity and then death of Mr Arlow;

   b)Mr Bunning says the statements assert “loans” were recorded in a certain way through the financial statements of some corporate entities, and now discovery of those entries or perhaps even journal entries may need to be discovered and inspected.  I agree that is a probability;

   c)Even though Mr Kearney SC says certain loans were the subject of separate individual actions in the Town H Magistrates Court (apparently commenced to avert possible time limitation issues), those actions are for only a handful of “loans” not more in total than $30,000.  I accept that the Applicant is aware of the Respondents’ case that the relationship post 2007 was a business relationship not a genuine domestic relationship, however the mere assertion in a local civil court of a claim does not of itself change the challenges to be assessed in the threshold issue.

5. The Applicant, who has complied generally with directions and has been pressing for a hearing now for 12 months or so, says through Counsel Mr Bunning, that the new material cannot be properly met in the six weeks before the hearing is due to commence.  The Respondents say that is not to be accepted, however, as the history reveals, the conduct of the Respondents has been the major contribution to the delays.

6. In the exercise of my discretion, and with some reluctance, I grant the adjournment.  I have already indicated to the parties my diary does not permit a trial date to be set this year.  I will hear the parties on alternate dates for hearing in 2020 and other necessary directions.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 26 September 2019.

Associate: 

Date:  26 September 2019