Walker and Walker (No 2) - [2014] FamCA 1152

FAMILY COURT OF AUSTRALIA

WALKER & WALKER (NO. 2)

[2014] FamCA 1152

FAMILY LAW – PROPERTY – Application by husband to have property and costs orders vacated – Application successful

FAMILY LAW – PRACTICE AND PROCEDURE – Wife’s application for a property settlement listed for hearing on a fixed date – Trial directions made – Orders made for the filing of affidavit material – Order for Appointment of Single Experts for the purposes or providing updated reports

Family Law Act 1975 (Cth)

Barbey & Tuttle [2013] FamCAFC 44

Clifford & Mountford [2006] FMCAfam 450

APPLICANT:

Mr Walker

RESPONDENT:

Ms Walker

FILE NUMBER:

LNC

350

2012

DATE DELIVERED:

12 November 2014

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

12 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lewis

SOLICITOR FOR THE APPLICANT:

Levis Stace & Cooper

COUNSEL FOR THE RESPONDENT:

Mr Welch

SOLICITOR FOR THE RESPONDENT:

Philip Welch

Orders

The property and costs orders made 17 July 2014 (numbers 1 to 17) are vacated.
These proceedings be listed for final hearing, with priority, at 10.00am on 11, 12 and 13 February 2015 at Launceston.
The wife pay the hearing fee on or before 23 January 2015.
The parties be restrained from filing further material apart from the affidavits of the single experts after 19 December 2014 without the leave of the Court.
The husband pay the wife’s legal costs of these proceedings and the application to vacate the orders made 17 July 2014 on the basis of 90 per cent of her practitioner/client costs and 100 per cent of her practitioner/client disbursements.
Leave be given for the parties to have the matter relisted before me on the giving of seven (7) days notice to the court and the other party in the event that they require further directions.
Leave be given to the parties to issue subpoena to produce documents to Town R City Council.

IT IS DIRECTED

Mr C and Mr A are appointed as single experts for the purpose of preparing updated reports in these proceedings as to the valuation of the chattels and real property (respectively).
The parties provide instructions to those experts within twenty one (21) days from the date of this order.
Each party pay one half of the fees of the experts and in the event that the husband does not do so IT IS REQUESTED the wife pay the husband’s share of such fees and on payment of such of the husband’s share by the wife it will become a debt due to the wife and interest will accrue on those in accordance with the Family Law Rules.
If the husband is given seven (7) days notice directed by ordinary pre-paid post to his address at G Street, Town R, Tasmania and care of his solicitors, he will make the property available for inspection in accordance with that notice.
Each party file and serve the affidavits upon which they rely (and leave is given to the parties to refer to previous affidavits to which they have already prepared and filed in these proceedings) for the purpose of this hearing, on or before 4.00pm 19 December 2014 together with sworn statements of financial circumstances.
The wife shall provide to the husband, within twenty one (21) days copies of all documents, papers and applications she made to the Town R City Council in relation to the zoning and/or sub-division change of the I Street property.
The husband shall provide to the wife, within twenty eight (28) days, full discovery of all documents relating to livestock sales made by him or for him from 1 July 2012 to the current date and full details of any livestock that he has in his possession or control at this present time.
The parties shall provide a case outline, in electronic word format, to my administrative associate two (2) business days before the commencement of the hearing setting out:-
(a)the orders they seek;
(b)a chronology;
(c)the documents upon which they rely; and
(d)an outline of their arguments.
A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS NOTED

The husband was present in Court and represented by counsel on the day the matter was listed for hearing.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walker & Walker (No. 2) 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 LAUNCESTON

FILE NUMBER: LNC 350 of 2012

Mr Walker

Applicant

And

Ms Walker

Respondent

REASONS FOR JUDGMENT

Mr Walker (‘the husband’) and Ms Walker (‘the wife’) have been engaged in property proceedings in this Court for about two and a half years.
In July of this year in the absence of the husband’s participation in these proceedings, property orders were made on an undefended basis. Those property orders were, in essence, conditional upon one of two things happening before they became final orders. The first was that the husband did nothing in relation to the orders. The second was that if he applied to the Court to have the orders set aside, as envisaged under order 19, that the Court did not give him leave.
The husband applied within the time provided in order 19 to have the orders vacated. That application is opposed by the wife.
The husband, who is now represented by counsel and has instructed solicitors, provided some non-expert evidence as to his neurological state which I will deal with later in these reasons. I commenced by asking his counsel whether there was any issue about his (the husband’s) capacity to give instructions and I was told and I accept that there was not.
The husband relied upon his:-
(a)     application in a case filed 13 August 2014;
(b)    affidavit and statement of financial circumstances, filed the same day;
(c)    an affidavit of his solicitor, Emily Turner, filed 6 November 2014;
(d)    an affidavit of Dr T, filed the same day; and
(e)    an affidavit of his sister also filed the same day.
He also relied upon the orders made by me on 17 July and the reasons delivered the same day.
The wife, in opposing the application, relied upon her application commenced by her on 11 July 2012, her amended application of 11 July 2014, her affidavits filed 7 November 2014 and 11 July 2014 and her financial statement of 7 April 2014.
The wife, likewise, relied upon the orders made by me and the reasons delivered by me on 17 July 2014. She also relied on an affidavit of Mr U, filed 7 November 2014, and affidavits of expert, Mr A, of 11 July 2014, and Mr C of the same day. She relied upon an affidavit of attempted service of Mr D, filed 17 July 2014, which showed that attempts were made to serve material upon the husband at H Street in Town R, B Street in Town R and J Street in Town R during July.
I note the background I provided in paragraph 6 of my reasons, which were not seriously challenged in submissions by either counsel. The only issue to which there seems to be an issue, which I have made no determination, is as to whether the wife has a capacity in terms of knowledge of subdivision. The wife claims to have some knowledge but not as an expert, I take it, and Mr Lewis submitted was a future resource which the Court would have to consider if and when it ever came to re-determining the property issues.
There was no issue of the procedural history of the matter contained in paragraph 39 of the wife’s affidavit filed 11 July. It is a troubling background. The parties had been engaged in litigation in this Court for two years at that time and we are now coming up to two and a half years. There is a litany of the husband not engaging and not acting in accordance with directions, which led to up to four notices that the matter was to be heard on an undefended basis. Perhaps, unsurprisingly, it was eventually heard and determined on an undefended basis.
In terms of the law, it is clear under the orders that I made and, in particular, order 19, I have power to set these aside being in the form, as it were, of a default judgment. The principles about how that should occur were set out by the Full Court in Barbey & Tuttle [2013] FamCAFC 44 in the Full Court comprised of May, Murphy & Kent JJ and delivered on the 22 March 2013.
There is no real issue of law in relation to the submissions made by counsel for each of the parties. They agree that the approach set out in Clifford & Mountford [2006] FMCAfam 450 as to the three criteria namely:-[1]
(i)the reasonable explanation for the applicant’s absence at the trial or hearing;
(ii)the material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
(iii)no prejudice to the party with the benefit of the order that is not able to be adequately addressed by the Court as the underlying criteria.
[1] At paragraph 34.
Each of the parties acknowledges that I have an unfettered discretion although that discretion has to be operated in accordance with normal legal principles.
I am not sure that an application in such circumstances is analogous to an application pursuant to section 79A of the Family Law Act 1975 (Cth) (‘the Act’) but, in any event, I have had regard to the words set out by Kirby J in that case and I repeat from Barbey & Tuttle (supra) at:-
69.As much was made by counsel for the wife of Kirby J’s statements in Allesch v Maunz about the general need to afford a hearing, it is as well to set out that part of his Honour’s reasons, noting that his Honour concurred with the majority judgment (at pages 184-185):
35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
(Footnotes omitted)
70.It is also important to note Kirby J’s subsequent comments, about the extent of the right to be heard, of particular relevance to the circumstances in this case:
38.… Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has accepted) the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(Footnotes omitted)
71.There must also be firmly kept in mind the High Court’s statements about the public interest in court efficiency in Aon Risk Services Ltd, to which the Federal Magistrate in his reasons for judgment referred.
The husband asserts that he has a neurological health difficulty arising from his history as a boxer in the past. In fairness, and appropriately, the husband has provided evidence of his neuro physician which, in essence, says that there is no such problem, but then relies upon his own self-assessment and that of his sister. It is not open for me to accept that he has neurological damage when his own expert evidence is to the contrary. Even if that were the only evidence before me in his case, the husband would be unqualified to give that evidence.
There are some issues in terms of the explanation as to his non-appearance which are, in the light of the history, troubling. The husband’s evidence is he now lives at his father’s property and not at the other properties. I am not in a position at the moment where I can make a positive finding one way or the other, although, given the history, there is some concerns in relation to that aspect of the husband’s case. However, it is clear that he was out of the state for a short period of time in about May or early June and there is some issue as to his knowledge of the precise date.
I am concerned that the application upon which the determination was made was late filed and filed at a level beyond that which the wife initially sought in her initiating application. I have considered all of the material before me and, whilst I am not sure that it is reasonable, there is an adequate explanation as to the husband’s absence on that date. There may be some arguments available which could enable the making of an order different to that which is in place. There will, of course, always be prejudice to a party in circumstances where they have to come back to this Court, and Mr Welch quite rightly asserts that the emotional impact on a party left in this Court is significant.
However, I raised with the parties during the course of the hearing whether that, at least in part, could be significantly impacted by a costs order, including a possible costs order on a practitioner/client basis. I am conscious of the provisions of section 117(1) of the Act which provides that, generally, each party should pay or bear their own costs. In this case, much of the costs over the last two years have been thrown away by virtue of the husband’s partial and then non-involvement in these proceedings.
The parties have a pool of assets which, on the wife’s case, is valued at some $800,000. On the father’s case, is valued at significantly more.
On the wife’s case, the wife has limited income. On the husband’s case, he has a modest income.
Neither party are entitled to Legal Aid.
It is the conduct of the parties that causes me concern, in particular the conduct on the part of the husband in terms of his engagement in these proceedings. His conduct, as conceded is set out in the procedural history in the wife’s affidavit.
This application today was necessitated by the husband failing to be involved in these proceedings. And whilst it may have been, and I do not know and I make no formal finding one way or the other, that he was not aware of 17 July 2014, he was certainly aware that proceedings were on foot but did not engage in the proceedings. This proceeding was brought about by reason of the husband not engaging.
This Court has powers to make orders for party/party practitioner/client costs and indemnity costs. In terms of indemnity costs, the jurisprudence of this Court is that the Court must know what the costs are bearing in mind the nature of the indemnity costs which is that the onus is on the husband. Whereas party/party costs and practitioner/client costs, the onus would be on the wife to establish that it is fair and reasonable. Given that I am going to vacate the orders, much of the work of the experts will be lost. Accordingly, I intend to make a partial practitioner/client costs order, partial because I will enable the parties to rely on such affidavit material as they have filed in the past and into the future. Accordingly, the orders I make in these proceedings are as follows:

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 November 2014.

Associate:

Date: 12 November 2014