Walmsley & Walmsley (No 3)

[2010] FamCA 368

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 3) [2010] FamCA 368

FAMILY LAW – PRACTICE AND PROCEDURE – financial issues – where the husband has filed an application for the adjournment of trial and an extension of time to allow him to file and serve documents – where the wife seeks to proceed on an undefended basis – where there has been a history of non-compliance with court directions – a just and equitable decision not possible without the participation of the husband – husband to pay costs of wife’s witnesses to attend further hearing

Family Law Act 1975 (Cth)

State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27
Tate & Tate (2000) FLC 93-047

APPLICANT: Mr Walmsley

RESPONDENT: Ms Walmsley

FILE NUMBER: ADC 728 of 2008

DATE DELIVERED: 3 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 3 May 2010

REPRESENTATION

FOR THE APPLICANT: In Person

FOR THE RESPONDENT: In Person

Orders

1. The conclusion of trial is adjourned in relation to financial matters for four [4] days commencing on 19 October 2010 at 10.00 am before the Honourable Justice Dawe.

2. The husband have leave to file and serve the following documents PROVIDED they are filed and served by 4.00 pm on 30 June 2010:

   (a)an amended application seeking final orders in relation to property settlement;

   (b)affidavit of himself;

   (c)updated Statement of Financial Circumstances;

   (d)affidavit of witness Ms Walmsley Snr (the husband’s mother) limited to her observations and specific evidence in relation to financial matters;

3. Leave is given to the wife to file and serve any updated affidavit and Statement of Financial Circumstances PROVIDED the same are filed and served by 4.00 pm on 30 July 2010.

4. Both parties to file and serve draft minutes of the specific orders they seek by 4.00 pm on 1 October 2010.

5. The matter is adjourned to Monday 11 October 2010 at 9.15 am before the Honourable Justice Dawe for a compliance check.

6. If the matter proceeds to trial the husband is to pay the wages lost and other costs of witnesses for the wife at the trial PROVIDED that the Court indicates that each witness will not be required for other than one [1] day each.

7. The amount of costs to be reimbursed to the wife’s witnesses by the husband will be determined by the Court.

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

1. This is an application by the husband for the adjournment of the trial in relation to financial matters and for an extension of time for him to comply with the rules of Court and the previous orders of the Court to file and serve documents in relation to the financial matters for the purpose of concluding the proceedings. 

2. There is also, before the Court, the application by the wife to have the matter proceed by way of property settlement on an undefended basis due to the default of the husband in attending to the previous orders of the Court in relation to filing of the documents. 

3. The proceedings between the parties have been on foot for some time and, in fact, it is a 2008 file.  The proceedings also related to children’s issues in relation to which the Court has made final consent orders this morning.

4. The matter was previously being dealt with by Strickland J who has made various orders from time to time with a view to preparing the matter for a final hearing and, more recently, specifically for a final hearing before the Court this fortnight. 

5. The orders in relation to the preparing the matter for trial go back at least until the middle of 2009 when there were orders made in relation to filing and serving amended applications for final orders in relation to children’s issues and other matters.  Since at least the middle of 2009, if not earlier, both parties have been unrepresented and the Independent Children’s Lawyer has been represented by counsel.

6. There have been numerous appearances since the middle of 2009, before Strickland J, both in relation to children’s issues and financial issues and various orders made in relation to preparing the matter for a conclusion.  Notwithstanding those orders, some of those orders have not been complied with.  In fact, in relation to filing of appropriate affidavit material, the wife was also given an extension of time to file and serve her completed affidavit in relation to the trial. 

7. The matter has specifically been before the Court on numerous occasions.  Most recently on 22 March 2010 I extended the time for the husband to comply with previous orders to 7 April 2010.

8. The matter comes on before me this morning, when it was fixed for the commencement of a 10-day trial.  The husband has filed a specific Application in a Case and supporting affidavit seeking that he be given a time extension for four to five weeks to amend, file and serve his amended application and supporting affidavit in relation to financial matters.  His supporting affidavit is not particularly helpful.  I take into account that the parties are unrepresented. 

9. At the bar table, the husband submits that his difficulties relate to his employment and the stress to attend to matters for the purposes of his employment.  The wife appropriately points out the ongoing failure of the husband to comply with the orders of the Court, notwithstanding the directions which have been made on numerous occasions since the matter was attempted to be prepared for trial.  She submits that due to his default, the Court should proceed to hear the matter on an undefended basis.

10. It is noteworthy that the last financial statement of the husband was filed in May of 2009 and his case information sheet filed in June of 2009. 

11. The Court has the discretion to proceed to hear this matter on an undefended basis due to the failure of the husband to comply with the orders and also has the ability to exercise the Court’s discretion to adjourn the matter and extend the time for the husband to file appropriate affidavit material.  In the past the Court has taken into account the decision of State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 and the authorities which have followed that decision. But more recently it is appropriate to take into account the decision of the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27 which decision indicated that the principles enunciated in State of Queensland & Anor v JL Holdings Pty Ltd (supra) would not necessarily be the correct principles to apply.

12. I am satisfied in this case that the Court’s discretion must be guided by what is just, in the circumstances of the case, bearing in mind the prejudice that might follow from the refusal to grant the adjournment and extend the time, together with the prejudice that might be suffered by the wife if the matter were further adjourned, notwithstanding the default of the husband. 

13. When deciding the issues in financial matters, it is the obligation of the Court to make such order as is just and equitable in all the circumstances.  I conclude that in these circumstances and notwithstanding the decision that I, myself, made in the matter of Tate & Tate (2000) FLC 93-047 it would be difficult for the Court to appropriately make a decision as to what is just and equitable without the further participation of the husband in these proceedings. I make that decision on the basis that I have taken into account the difficulties the wife has referred to in relation to her witnesses.

14. If the witnesses are having difficulty attending Court then they will be able to be subpoenaed, and that will be on the basis that any wages lost, and otherwise determined costs of their attendance at the further hearing will be costs to be paid by the husband for the purposes of concluding the matter.  That is, of course, if it is not resolved prior to the conclusion of the matter.  Any order I make will be on the basis that the husband, in any event, will meet the costs of the wages lost by any witness required to attend to give evidence on behalf of the wife and, otherwise, their legitimate costs of such attendance.

15. I also take into account the wife’s concern about the delay which would require updated information before the Court and the costs of the same.  Again the expenses paid by the wife during the period of the adjournment would be expenses that the Court would be required to take into account, in any event, in determining what order is just and equitable in all the circumstances, and the need for updated affidavit material is a factor which can be taken into account.  But, in my view, the balance of justice leans towards the husband being given one last opportunity to prepare the matter appropriately for consideration by the Court, notwithstanding his failure to comply with the past orders.

16. The husband is clearly aware of his responsibility to comply with the orders of the Court.  If he fails to comply with the time limits imposed, the Court will have no alternative but to dispense justice based on the information that is then available to it, rather than merely await his compliance.

17. The dates I have in October are four days commencing on 19 October.  On the material before me I am of the view that this matter should be resolved within four days.  I adjourn the conclusion of the trial in relation to financial matters to 19 October at 10.00 am before me.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  14 May 2010