Turner & Turner & Anor (No 2)

[2015] FamCA 776

FAMILY COURT OF AUSTRALIA

TURNER & TURNER AND ANOR (NO 2) [2015] FamCA 776

FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – UNDEFENDED HEARING – Where the husband’s response was previously struck out – where the husband did not attend the final hearing.

Family Law Act 1975 (Cth)

APPLICANT: Ms Turner

RESPONDENT:	Mr Turner
SECOND RESPONDENT:	Turner Pty Ltd

FILE NUMBER: MLC 5928 of 2013

DATE DELIVERED: 30 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Puckey

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

THE RESPONDENT: No appearance

COUNSEL FOR THE SECOND RESPONDENT: No appearance

SOLICITOR FOR THE SECOND RESPONDENT: Kenna Teasdale Lawyers

Orders

IT IS ORDERED THAT

1. The matter be adjourned to a date to be fixed for judgment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Turner and Anor 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 5928 of 2013

Ms Turner

Applicant

And

Mr Turner

Respondent

And

Turner Pty Ltd
Second Respondent

REASONS

1. This matter is listed for final hearing before me this day.  It has a relatively long history, and that procedural history is clearly set out in my reasons for judgment delivered 29 October 2014. On that date I struck out the husband’s response to the wife’s Initiating Application filed on 4 October 2013. 

2. Perhaps somewhat presciently, in those reasons I referred to the fact that it was likely that the final hearing, which was at that time fixed for 2 December 2014, might not be ready to proceed.  I also referred at paragraph 26 of my reasons to the fact that whilst I was satisfied that the husband’s failure to comply with orders of this Court, and obligations to provide full and frank disclosure, should not be permitted to delay the hearing on 2 December 2014, if the matter did not proceed on that date, the husband might have the opportunity to apply to have his response reinstated and, I make the point, to generally participate in these proceedings. 

3. I pointed out in my reasons that any such application would need to be accompanied by an affidavit sworn by the husband setting out in detail his reasons for having failed to comply with the orders of the Court and his obligation to provide full and frank disclosure; the steps he has taken to meet that obligation; and a detailed timetable for the filing of the documents that orders require him to file.  I am told by Mr Puckey that the husband has communicated on a number of occasions with the single expert witness, Ms B, and that he has communicated with his instructing solicitors and with the instructing solicitors for the third parties with respect to the possibility of a mediation. However, he has not filed any application seeking to reinstate his response or taken any other steps which would indicate that he was generally participating in these proceedings.  On Thursday 26 March 2015 the husband forwarded a letter to my Associate in which he said as follows:

   Dear [Associate],

   I would like to talk to you about the hearing on Monday. 

   I am very concerned that I am not going to be treated fairly due to the fact that I am not being allowed to participate. 

   With the limited knowledge that Justice Macmillan has of my position I can not see how she can make a fair ruling.

   The financial information presented by the other side is grossly exaggerated and inaccurate. 

   If Justice Macmillan uses this information as the basis for her rulings then the rulings will be very biased to the other side. 

   Please could you call me at your earliest convenience to discuss the matter. 

   Thank you. 

   Kind regards, [Mr Turner].

4. That email was sent at 5.37 pm that day.  That email was not brought to my attention, quite properly so, and an email was then forwarded to the husband at 3.26 pm on 27 March 2015 and copied to the solicitors for the other parties.  The response read as follows:

   Dear [Mr Turner],

   I refer to correspondence sent [to] the chambers of Justice Macmillan concerning your matter listed before Justice Macmillan on Monday 30 March 2015. 

   Please be advised that it is not appropriate to communicate with the chambers of the Judge and the Court cannot assist or provide you with legal advice.  You will need to seek your own independent legal advice, however if you have a procedural question or are sending any correspondence to the court you may use the Case Coordinator’s Email address and you will need to include the other parties into the Email. 

   With regards,

   [Ms MS],

5. By way of response to that email, at 4.04 pm on 27 March 2015 the husband forwarded an email to Ms MS and on this occasion copied in the solicitors for both the wife and the third parties.  That email read as follows:

   Dear [Ms MS], 

   Thank you for your email. 

   I have been trying to get in touch with [the Associate] to request an adjournment to the hearing on the grounds that I am being treated unfairly by not being allowed to participate at the hearing.

   Also I have been severely disadvantage [sic] in the proceedings by not having the financial resources to obtain legal representation. 

   With the limited knowledge that Justice Macmillan has of my position I believe that it will not be possible for her to make a fair judgement

   If this is the case the matter will then go to an appeal which will only delay settlement and add further costs and stress to all parties. 

   I await your reply. 

   Kindest regards,

   [Mr Turner].

6. The husband was called this morning and does not appear.  His sister is present in Court, and told me this morning that she had expected the husband to be here but had heard nothing from him.  At my request she has attempted to telephone the husband, both on his mobile phone and at his work, but has not been able to reach him.  Having spoken to his place of work, she understands from the staff at his office that the husband is in the K Town area. It follows from that that he does not intend to be present at the hearing today. 

7. There are a number of points which I made in the reasons that I delivered on 29 October 2014. 

8. Firstly, legal representation is a privilege and not a right. Many parties cannot afford legal representation and are required to represent themselves.  I made the point that the husband, from my observations of him, appeared to be well educated and perfectly capable of conducting his own proceedings if it was necessary for him to do to.  Whilst that might not be preferable, it is not a reason for not participating in the proceedings. 

9. Since 29 October, the husband has had ample opportunity to make application to this Court to have his response reinstated and to participate in these proceedings in a meaningful way.  He clearly has chosen not to do so.  Whilst there is an email in which he indicates that he seeks an adjournment, he is not here to make that application today.  I am satisfied, having had the husband appear before me on a number of occasions, that he has sufficient understanding of the processes of the Court to understand what would be required.  That being said, I made it quite clear in my reasons of 29 October 2014 what would be required if he wished to re-engage in this process. 

10. I must weigh up the prejudice to both the husband and the wife in determining whether this matter should proceed on an undefended basis.  I am left in exactly the same position as I was left in in October 2014; that is, not only has the husband not participated in a meaningful way in these proceedings, but there is absolutely no indication of how he would propose to do so, even if I were to adjourn this matter.  The appropriate course would have been for the husband to file an application and an affidavit in support of that application offering some explanation for his conduct in these proceedings to date, and how he proposes to rectify that.  At the very least, one would have expected him to be here today to seek an adjournment and similarly to make some proposals with respect to how this matter might be finalised. 

11. In all of the circumstances, I am satisfied that there would be a significant prejudice to the wife not to have these proceedings determined, if I were to adjourn them in circumstances where the husband offers no real prospect of that occurring. I therefore propose to deal with this matter on an undefended basis.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 30 March 2015.

Associate: 

Date:  31 March 2015