Walmsley and Walmsley (No 4) - [2010] FamCA 680

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 4)

[2010] FamCA 680

FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking that property settlement proceedings proceed on an undefended basis – where the matter has a long history – where the husband has continuously failed to comply with previous court orders – no further extension of time granted for the husband to file his documents – matter to proceed on an undefended basis

Family Law Act 1975 (Cth)
Family Law Rules 2004 r 1.14

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Doriemus v Vanderhum [2009] FamCAFC 56

APPLICANT:

Mr Walmsley

RESPONDENT:

Ms Walmsley

FILE NUMBER:

ADC

728

2008

DATE DELIVERED:

29 July 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

29 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

n/a

SOLICITOR FOR THE APPLICANT:

IN PERSON

COUNSEL FOR THE RESPONDENT:

n/a

SOLICITOR FOR THE RESPONDENT:

IN PERSON

Orders

The Initiating Application filed by the father on 21 February 2008 and all further amended applications for final orders are dismissed.
The Further Amended Response to Initiating Application filed by the wife on 20 April 2010 by way of property settlement will proceed on an undefended basis for final hearing on 19 October 2010 at 10.00 am before the Honourable Justice Dawe UPON NOTING the Court will allow a half to one day for the hearing.
The wife’s Application in a Case filed on 5 July 2010 and the husband’s Application in a Case and Response filed on 21 July 2010 are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Walmsley & Walmsley is approved pursuant to s 121(9) (g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 728 of 2008

MR WALMSLEY

Applicant

And

MS WALMSLEY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

The applications before the Court today, are those of the wife filed on 5 July 2010 in which she seeks an order that the property settlement proceedings between the husband and wife proceed on an undefended basis, and the application in a case filed by the husband on 21 July 2010 and his response filed on that day.
Document 149 (being the application in a case filed by the husband) simply seeks that the wife make available her documents of discovery immediately and advise the husband when they will be available at the wife’s former counsel’s offices for the husband to view.
The response filed by the husband on 21 July 2010 merely seeks the removal of the wife’s application filed on 5 July 2010.
There is before the Court no formal application by the husband seeking an extension of time to file his affidavit material. However, his affidavit filed on 21 July 2010 refers to seeking leave of the Court to accept the documents at the hearing today. However, when asked to provide the documents to the Court for purposes of examining those documents to assist the Court to determine the issue as to whether leave should be granted, the husband said he did not have them with him.
The matter needs to be seen in the context of the history of these proceedings and the time which it has taken to prepare the matter for trial. The matter was, in fact, set down for trial previously but was vacated when the husband failed to comply with previous orders.
It was on 3 May 2010, that for reasons given then, the husband was given further time to 30 June 2010 to file and serve his amended application, his affidavit, his statement of financial circumstances and the affidavit of his mother limited to matters concerning financial matters. The matter was then fixed for trial in October 2010.
As indicated in the reasons given on 3 May 2010, there has been ongoing failure by the husband to comply with Court orders. His previous excuses for his failure to comply with the Court orders could not be described as persuasive. However, due to the need for the Court to come to a resolution of the proceedings that is just, he was given another opportunity. It is correct that it was made clear to him on that occasion that this was what was described as his “last chance”.
He now comes before the Court, again in response to the wife’s appropriate application filed on 5 July 2010, with excuses which again could not be described as persuasive.
It appears from his affidavit that he did not attempt to print out his drafted affidavit until 28 June 2010 notwithstanding that he was required to file and serve that document by 30 June 2010.
He also purports to use as an excuse his attempts to inspect documents in the wife’s possession which he says are relevant to the proceedings to be determined.
His affidavit refers to contacting the wife’s counsel on 9 June 2010. However, he now concedes when confronted with an email from the wife’s former counsel that it was, in fact, 9 July 2010 that he made contact with the wife’s former counsel, clearly a date after 30 June 2010.
The principles to be applied in relation to this sort of matter relate to both the rules made under the Family Law Act 1975 and to the authorities. Rule 1.14 refers to a party being able to apply to the Court to extend time made under the rules or under procedural order.
I take into account that the husband is unrepresented and has not made a formal application to extend time but has simply referred to it in his most recent affidavit filed on 21 July 2010.
In any form it is of note that he made no application to have an extension of time until well after he was aware the wife was bringing further proceedings to have the matter dealt with undefended.
In relation to the exercise of the Court’s discretion, it is clear from the authorities that there are no strict rules or criteria which need to be established.
However, it is within the Court’s discretion to extend time and the purpose of that is to do justice between the parties. O’Ryan J in Doriemus v Vanderhum [2009] FamCAFC 56.
“The discretion to extend time is given for the purpose of enabling the Court to avoid an injustice, and the Court must determine whether justice as between the parties is best served by granting or refusing the extension sought.” (Paragraph 37).
One of the factors which the Court has to take into account is whether there are adequate reasons which explain the delay. In the assessment of the evidence which is now before the Court, the husband has failed to provide what could be described as adequate reasons to explain his delay.
One of the other factors is whether hardship or injustice will be caused which cannot be compensated by orders as to costs or otherwise. In relation to this matter, it is not simply the financial hardship or injustice which would be caused to the wife in this case but the ongoing uncertainty and emotional and psychological impact as well as the financial consequences of the ongoing delay.
The authorities also indicate that when determining whether an injustice would occur, it is appropriate to have regard to the history of the proceedings and the conduct of the parties to the proceedings. In this matter the history of the proceedings and the ongoing failure of the husband to abide by Court orders is of significance.
In AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (a decision which dealt with the principles of adjourning a case to enable amendments to pleadings in another jurisdiction) the High Court made significant comments including that a just resolution of the proceedings remains the paramount purpose. At paragraph 98 reference was made to a “just resolution of the proceedings remains the paramount purpose” of the rule 21 which was being considered in the case, “but what is a just resolution is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon repleading, when delay and cost are taken into account”. This is not simply a matter of “repleadings”, but those principles equally apply to the discretion the Court has to exercise in this matter.
I have given serious consideration to the possibility that the husband could remedy his default in time for the wife to consider her situation fully and suffer no direct inconvenience before the trial which is listed in October 2010.
I accept, however, her submission that on the last occasion it was made clear to the husband that this was his last chance and I have made findings that he has not provided the Court with adequate reasons for his delay.
When making a final property settlement order the Court will apply the principles and make orders which are just and equitable whether the proceedings are undefended or not.
Bearing that in mind and weighing up carefully all of the principles and the background to this matter, I am satisfied that the wife has established that the justice of the case requires that there be no further extension of time granted to the husband to file his documents and that the proceedings should therefore proceed on an undefended basis with the Court to receive the evidence presented by the wife and make the determination on that basis.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate:

Date: 5August 2010