WHIDDEN & ROUGHEAD

[2018] FamCA 1163

FAMILY COURT OF AUSTRALIA

WHIDDEN & ROUGHEAD [2018] FamCA 1163

FAMILY LAW – PRACTICE AND PROCEDURE – Application by wife for dismissal of her substantive application and the husband’s response – where the wife is able to file a Notice of Discontinuance at any time – where however the respondent seeks to continue with the orders he seeks – where the matter requires finality of a final hearing – wife’s application dismissed and orders for extension of time for filing documents to ensure readiness for trial.

Family Law Act 1975 (Cth)

APPLICANT: Ms Whidden

RESPONDENT: Mr Roughead

FILE NUMBER: MLC 8363 of 2016

DATE DELIVERED: 13 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 13 July 2018

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The respondent’s Application in a Case filed 12 July 2018 be adjourned for hearing before Justice Macmillan at 10.00 am on 6 September 2018.

2. By 4.00 pm on 20 July 2018 the respondent provide to the applicant copies of the following documents:

   (a)Financial Statements and Corporate Tax Returns for the financial years ending 30 June 2016 and 2017 for C Pty Ltd;

   (b)Financial Statements and Corporate Tax Returns for the financial years ending 30 June 2016 and 2017 for D Pty Ltd;

   (c)Financial Statements and Corporate Tax Returns for the financial years ending 30 June 2016 and 2017 for B Unit Trust and B Pty Ltd; and

3. The time for the applicant to file and serve her trial material paragraph 4 of the orders made 7 May 2018 be extended to 4.00 pm on 27 July 2018.

4. The time for the respondent to file and serve his trial material paragraph 5 of the orders made 7 May 2018 be extended to 4.00 pm on 10 August 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whidden & Roughead has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8363 of 2016

Ms Whidden

Applicant

And

Mr Roughead

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is listed for final hearing before me on 6 September 2018.  It has previously been listed for hearing before me and that hearing was vacated.  On the last occasion I listed the matter for final hearing, it was listed subject to part-heard only matters to ensure that the matter could be accommodated, if at all possible.  Proceedings have been on foot since 2016, and it would have to be said that at the very least the litigation has had a chequered history.

2. On the last occasion when the matter was listed for hearing before me, the applicant was represented.  The respondent was representing himself, and has been representing himself for some time. These parties lived together for a number of years, but it would be considered a relatively short relationship.

3. The financial situation around the relationship and perhaps following separation involves a number of entities and there have been a number of issues in relation to valuations.

4. The applicant appeared today with an Affidavit. She says she wanted to have her application dismissed and the respondent’s proceedings dismissed as well.  There is nothing to stop the applicant from filing a Notice of Discontinuance at any time, but that does not bring the proceedings to a conclusion to the extent that the respondent seeks orders and would seek to proceed with his application on an undefended basis.

5. The applicant says she is no longer in the financial position to engage solicitors and will have difficulty paying for a valuation.  In April this year, having previously made an order for single expert valuers, I made an order for adversarial witnesses. There is a dispute as to the respondent’s ability to pay for the valuations, it being his case that he could not afford the valuations, while on the other hand it is the applicant’s case that he could well afford to have paid his share of the valuations and that he has misled the Court in some way in saying that he could not.  That being said, these are matters that I cannot determine until I have heard the evidence and can make findings in relation to these disputes.

6. A significant part of this case may well be the dispute as to whether or not the respondent has fulfilled his obligations of full and frank disclosure.  He, of course, would say that he has and that the applicant has drawn these proceedings out unnecessarily. 

7. The difficulty from the Court’s point of view is that, if at all possible, the Court needs to bring to an end the financial relationship between parties who are no longer in a relationship, and it should do so in both a just and timely manner.  This is further exacerbated by the Court’s limited resources and the Court cannot afford to keep listing matters for trial when those matters do not proceed.  This is a matter that, in my view, requires a hearing. Much of the dispute about the interlocutory matters will require testing, let alone the evidence in relation to the competing applications for property settlement.

8. It would appear, at least for the purposes of the hearing before me today, that if the applicant were to discontinue her application, the respondent would not seek an order for costs against her. Although this is encouraging the matter is complicated by the fact that the applicant is the joint appointer, and a director and shareholder of the corporate trustee of a trust and, at least at this stage, she is indicating that she will not resign her positions. This leaves the parties financially enmeshed, and it is that enmeshment which the respondent seeks to have resolved and finalised. Unless that is resolved, clearly it appears there will need to be a hearing. 

9. Whilst it may be that the Court does not have adversarial evidence and may only have the evidence of the valuations that were prepared not for these proceedings, but independently or at least the respondent says independently, for the business interests or the various entities and trusts, the matter cannot remain outstanding.  It must come to a resolution and I am proposing to make orders that will hopefully allow the applicant, if she can, to pursue a valuation of those entities.  I will extend the time for the filing of documents so that the matter will be ready for a trial.

10. This dispute about valuation has been going on for many months.  The applicant has had the valuations that the respondent proposes to rely upon and it was always envisaged that, as a starting point, she could get some advice from a valuer as to those valuations. This being the case,  it might be the valuer would say they seem to be a proper valuation, independently prepared, and that that evidence might then be sufficient without incurring the costs of another expert valuation. Unfortunately, although it was intended as a first step, that does not appear to have happened. 

11. The matter will remain listed with a view to it being concluded in September.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 13 July 2018.

Associate: 

Date:  13 March 2020