Wagner and Zulzic

[2007] FamCA 693

FAMILY COURT OF AUSTRALIA

WAGNER & ZULZIC [2007] FamCA 693

FAMILY LAW - PRACTICE AND PROCEDURE - Adjournments

Family Law Act 1975 (Cth)

APPLICANT: MR WAGNER

RESPONDENT: MS ZULZIC

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1027 of 2006

DATE DELIVERED: 26 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.W. St John SC

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. All Form 2 applications in a case be adjourned to 10 am on 14 August 2007 in the interim hearing list.

2. The wife file and serve on the solicitors for the husband a copy of any material on which she intends to rely by no later than 4 pm on Wednesday, 1 August 2007.

3. The wife pay the husband's costs thrown away this day and for the hearing on 23 May 2007, the total fixed at $11,150, the payment of which is stayed until the settlement of the proceedings.

4. Certify for the attendance of senior counsel this day.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1027 of 2006

MR WAGNER

Applicant

And

MS ZULZIC

Respondent

REASONS FOR JUDGMENT

1. In this matter, I am dealing with an application by the wife in the duty list.  Although it is, strictly speaking, the duty list, this particular case is in the long defended interim duty list.  It was specifically listed for hearing today.  I am now asked by the applicant wife to adjourn the proceedings and I propose to grant that application, albeit with much reluctance.

2. Just by way of background, the husband is a company director and the wife describes herself currently in her documentation as a pensioner.  She is 33 years of age and he, 41 years.  There seems, on the papers, to be a significant dispute about the duration of the marriage as well as the relationship.  From the wife's perspective, she says that the parties married in 2001 and separated in March of 2006.  The husband's version is that the marriage really never got off the ground and that the separation, to use his words, commenced in October of 2002.  What has occurred since then has been somewhat confusing, but even had I dealt with the matter today, I doubt whether I would have been able to make any specific findings.

3. There is a child of the marriage, a daughter, who is now four years of age and who lives with the wife and, perhaps sadly, has very little contact with her father.  The proceedings commenced in March of 2006 and I have read a very comprehensive affidavit by the husband, indicating that he made comprehensive disclosure of his financial position in relation to a number of entities and there appears to have been little done by the wife in respect of the examination of those issues.  In discussions today, it appears that the wife wants to investigate those with the assistance of an accountant.

4. The problem seems to have got out of control because the parties have been before the Court on numerous times in 2006.  Most of those occasions have been in front of either registrars or the Senior Registrar and on most occasions, orders have been made by consent.  Things appear to have gone awry in about December 2006 when Senior Registrar FitzGibbon made an order for the disclosure of documents and also an order for costs against the wife.  The order did not set out the quantum of the costs but makes it clear that whatever sum was to be paid is due when final settlement occurs. 

5. The order was based upon a minute signed by the lawyer for the wife, rather than the wife herself.  Thereafter, the parties continued to use the resources of the Court in a number of different ways and then on 10 May 2007, the wife issued an application in a case, seeking a whole raft of orders.  That application seems to have coincided with a change of legal practitioner on her part.  I am told by Mr St John SC today that having been served with the Form 2 application by the wife, and she having sought and been granted by the Registry a priority fixture or an urgent listing, the husband sought to have the matter adjourned administratively on the basis of the large number of matters that had to be dealt with, not to mention the comprehensive nature of any affidavit in reply.

6. That probably would have been the commonsense approach, in circumstances now with hindsight, seeing that the facts of the very nature of the relationship were significantly in dispute.  Needless to say, the application directed to the solicitors for the wife was refused and the matter came on before Guest J on 23 May 2007. 

7. His Honour apparently, I am told, could not deal with the matter because of the fact that he had an acquaintance with one of the husband's witnesses who had filed an affidavit.  But be that as it may, I am told that counsel for the wife wanted to respond to the material that the husband, to his credit, had gathered together and put before the Court.  It is interesting to note that in the husband's affidavit, he makes mention of the fact that having regard to the short time that he had to prepare the material, he was unable to file a comprehensive statement of financial circumstances and agreed that one needed to be filed, and in fact I note on the Court file that he has done just that.

8. When the end of the day came before Guest J, the file is noted by his Honour as having been not reached, but it seems clear on what I have been told that the wife was really not in a position to proceed in any event that day.  What was quite clear from the order of Guest J was that the matter was to proceed before me and specifically listed as a matter in the Tuesday defended list.  Had the matter been in a position to proceed today, I have little doubt that I would have had sufficient time to hear it.

9. What is disconcerting is that since the order of Guest J, very little appears to have been done in terms of the litigation.  The wife has told me that she was told by her lawyers not to do much and it appears that there have been some discussions going on.  That leads me to the dilemma, because I am told that as late as yesterday, the solicitors who were on the record for the wife were involved in discussions with the solicitors for the husband about trying to resolve the matter overall, but that during those discussions which failed to resolve anything, no mention was made that the solicitors for the wife were no longer going to be involved in proceedings today. 

10. It is quite disconcerting also for me this morning to find that the wife appeared unrepresented and there had been no mention by her now former solicitors of their intention to withdraw from the proceedings.  The wife told me at the start of the day that she had had some difficulty sorting out the financial matters with the solicitors, as a result of which they were not going to turn up.  I expressed my displeasure at that situation, but it also created the other more difficult problem for counsel for the husband, in not knowing whether or not he could or should professionally and ethically deal directly with the wife in any negotiations.  The wife told me at that stage that she wanted time, by which she meant an adjournment, to get her material together.  She told me that she was in dire straits, having been evicted from her accommodation and is currently living with friends and there is also a problem associated with the fact that the child's kindergarten fees at a private school have also not been paid.

11. All of the issues associated with that from the husband's perspective are comprehensively set out in his affidavit, so there could be no suggestion that the wife was unaware of what in fact she was to meet today.  To make matters worse, as I pointed out, the orders before Guest J made it very clear that the wife was to file the foreshadowed material that she wanted to rely on for this hearing by no later than 14 June 2007.  None of that has happened.

12. The husband, however, has filed a response to the wife's application simply seeking a dismissal, so to some extent the prejudice that he suffers by the matter being adjourned is that his opportunity to have the matter put out of his control may have to wait for some further time and I propose under those circumstances to make it not too long a period of time and to put the wife in a position where she has got to do something about the matter.

13. To conclude the picture, as a result of an indication that I expressed about my dissatisfaction with what had occurred, Mr Berger, of the wife's former solicitors attended and apologised to the Court for the fact that no indication had been given to the Court and he then sought and was granted leave to withdraw.  That was on the basis that the wife is intending to obtain further legal advice from solicitors, and when I queried how she was going to afford to do that, she indicated that she was going to seek the assistance of her mother who apparently has been unavailable and away, and that may to some extent contribute to the dilemma.

14. I am very mindful of the fact that Kirby J once said that the refusal of an adjournment which would seriously prejudice a party is unreasonable.  What I am troubled about here is the fact that the wife's case is and always has been primarily about spousal maintenance and the use of such things as a motor car.  I am concerned that if I put the wife to the test today and made her conduct the case, having regard to the fact that she has done nothing about preparing the responding material to the husband's affidavit and she is unrepresented, I would be putting her in an invidious position in which her rights would be prejudiced.  That is not to say that the husband is not prejudiced by this because he has waited a long time for this hearing and has gone to an extraordinary amount of trouble to have counsel prepared for the hearing.  But in the circumstances, the first of the two steps that I propose to take is to determine that the wife would be seriously prejudiced by being forced on today and under those circumstances, I think it is appropriate to adjourn the proceedings.

15. It goes without saying that I then need to turn to the second step which is the question of costs.  Although no formal application has yet been made, it has clearly been the subject of discussion this morning and it has been foreshadowed that an application would be made.  In the course of discussion, it was made very clear by the wife that subject to what the quantum was, she was not in a position to pay costs.  The dilemma I have with that is that this is a property matter essentially, although there are clearly spousal maintenance issues involved, but the wife has indicated to me that yesterday there were discussions between the parties and although the gap has been bridged, they still have not resolved the matter.  So it seems clear that at some stage or other in the future, the wife may be entitled to something. 

16. To add to that dilemma is the fact that the wife also says that her assistance for future representation, including the question of a forensic accountant is going to come from other members of family and friends, including her mother, so on that basis, I am entitled to conclude that she has access to some resources. The problem I have is that in respect of an order for costs, and I do intend to make an order for costs, relates to the question of quantum. In making an order for costs, I have to start with the premise in s 117 of the Family Law Act 1975 (Cth) (“the Act”) that each party must bear their own costs unless the Court determines that circumstances justify it doing otherwise. In respect of making that particular decision, I am obliged to look at the relevant considerations in s 117(2A).

17. In respect of that issue, I have taken into account the financial circumstances of each of the parties.  It is quite clear at the moment that the wife is impecunious.  Her statement of financial circumstances shows that she only has the pension to live on, and if in fact what she has told me from the bar table - which I must say is foreshadowed in her affidavit that she filed some months ago - about being unable to continue to live in the accommodation that she had, then it is quite clear that her financial circumstances are very, very modest.

18. On the other hand, the husband is in a not much better position.  I am only entitled to rely upon the sworn material that he has filed, rather than on any assertion by the wife.  The wife suggests in her material that the parties lived what I might describe as “the life of Riley”.  There was the mention of overseas trips and various high standards of living, but the husband explains all of that by saying that the wife had access to his credit card and ultimately when he found out what was happening, those credit cards were withdrawn.  All of that is confusing, having regard to the fact that the husband says that the parties were separated during that period of time.  It is compounded by the fact that the husband also took the lease on the accommodation that the wife was living in from which she has now been evicted and has broken that lease, saying he cannot afford to pay the payments.  The same issue seems to apply in respect of the kindergarten fees at the private school at which the child attends.  Needless to say, therefore, I am not satisfied that the financial circumstances of either party is much better than the other. 

19. I am obliged to take into account the questions of whether a party is in receipt of legal aid and I have been told nothing about that, but it is quite clear that neither is.  The third issue relates to the conduct of the parties to the proceedings and that is particularly relevant to the question of - to use the words of the section - pleadings, particulars, discovery, inspection and so forth.  I have no doubt that the husband has done everything that was asked of him, and the wife, to the discredit of her position, has slept on her rights.  The husband, in his affidavit, refers to the fact, as I already mentioned, that he has provided documents over a year go.  Nothing has advanced to try and resolve the matter overall.

20. I am critical of the wife for the fact that the case has got this far, particularly having regard to the fact that she had lawyers, but nothing has been done.  On that basis, I would say that that is a relevant consideration why I should make an order for costs in favour of the husband.

21. The next issue is the question of whether the proceedings were necessitated by the failure of a party to comply with the previous order of a court.  It goes without saying that the order of Guest J made it clear that not only did the wife have to prepare for today but that the matter was being listed in a specific list where time would be allocated to it.  With the current resources of the Court and parties clamouring for these dates, it is in my view totally inappropriate for a party to come along at the last minute and say that they cannot proceed. 

22. The next issue relates to whether or not a party has been wholly unsuccessful.  At this stage, I am not in a position to make any comment about that because I am not making any determination, but it seems rather odd to me that having seen the husband's material, the wife is seeking things such as litigation funding and significant spousal maintenance in circumstances where, if I was to determine the matter on the papers, it is hard to imagine how that application could succeed.  That is particularly important in a case where the husband has made significant disclosure.

23. I am also obliged to take into account any other matters that the Court sees as relevant.  One of the issues that troubles me in this case is that at first blush, this case is not all that difficult to resolve, particularly in circumstances where there has been significant discovery.  The husband has engaged and for some months appears to have engaged senior counsel and in the normal course of events, if I was to make an order for costs, I would simply make an order that the parties agree on the costs, failing which it be determined according to the rules.  In this case, having regard to what I have just said, and the fact that there are some complexities, I am not prepared to do that.  The complexities in this case are recognised by the wife because of the fact that at least her lawyers, who were then acting for her, drafted an application which suggested that the husband had significant financial resources. 

24. Under those circumstances, what I propose to do is to make an order that the husband's senior counsel's fees of this day and also the costs thrown away effectively before Guest J be paid by her. 

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WAGNER & ZULZIC