WHITFORD & WHITFORD AND ANOR

[2017] FamCA 335

FAMILY COURT OF AUSTRALIA

WHITFORD & WHITFORD AND ANOR [2017] FamCA 335

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Whitford

RESPONDENT: Mr Whitford

INTERVENOR: Ms A Whitford

FILE NUMBER: MLC 7008 of 2016

DATE DELIVERED: 22 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

SOLICITOR FOR THE RESPONDENT: Macpherson Kelley Lawyers

SOLICITOR FOR THE INTERVENOR: Carew Counsel

Orders

1. All extant applications for final orders are listed to a TRIAL MANAGEMENT HEARING before the Honourable Justice Macmillan at 10.00 am on 31 May 2017 for the purposes of listing the matter for final hearing.

2. The parties and if represented, their legal practitioners, attend the trial management hearing.

3. Notwithstanding any applications/responses that have already been filed:

   a)   by 4.00 pm on 24 May 2017 the Applicant file and serve on all other parties an amended application setting out with precision the orders to be sought at trial; and

   b)     by 4.00 pm on 26 May 2017 the Respondent file and serve on all other parties an amended response setting out with precision the orders to be sought at trial.

4. All parties file and serve on all other parties a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 30 May 2017. Such summary should be emailed to: ....

5. At the trial management hearing each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

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 Whitford & Whitford and Anor 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 7008  of 2016

Ms Whitford

Applicant

And

Mr Whitford

Respondent

And

Ms A Whitford

Respondent

REASONS FOR JUDGMENT

1. The applicant wife and the respondent husband were married in 1996 and separated in October 2014. The wife is severely disabled having been diagnosed with multiple sclerosis (“MS”) in 1997. She deposes in her Affidavit filed 27 July 2016 that her doctors have advised her she is in the late stages of the disease. She is bedridden and has very limited motor function, requiring assistance with all everyday tasks, such as dressing, toileting and showering and uses a feeding tube to eat.  Despite her limited motor function, she deposes that her thought processes, memory, reasoning and understanding of oral speech remains unaffected, save that the MS has limited her ability to speak and be understood.

1. The husband deposes that his mother has loaned the husband and the wife an amount of $407,587 (as at the date of his response to the wife’s submission for expedition) to assist with the payment of various expenses, including mortgage repayments and the wife’s medical expenses. The husband’s mother has now intervened in these proceedings seeking repayment of that loan.

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before the Judge. As set out in the Rules:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

   (b)  whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

   (c)  whether the applicant is suffering financial hardship that:

   (i)  is not caused by the applicant; and

   (ii)  cannot be rectified by an interim order;

   (d)  whether the continuation of interim orders is causing the applicant or a child hardship;

   (e)  whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

   (f)  whether the case involves allegations of child sexual, or other, abuse; and

   (g)  whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Discussion

1. The wife submits in support of her application that the matter be granted priority as  follows:

   ·that although it is her case that the husband has frustrated the proceedings by his failure to provide full and frank disclosure in a timely manner she has acted reasonably and without delay;

   ·that she has multiple sclerosis which affects her physical capabilities and her speech, which continues to deteriorate;

   ·that the intervenor in the proceedings has deposed to suffering from terminal cancer;

   ·that the husband has been financially inept and she is suffering financial hardship as a result of his failure to meet mortgage repayments on the former matrimonial home, that penalties and interest are eroding the equity in the home and that she is unable to access the equity in the home;

   ·that the proceedings and the delay is causing the wife significant distress and anxiety.

2. Albeit the husband denies that he has failed to provide full and frank disclosure in a timely manner he does not oppose the wife’s expedition for a final hearing and accepts that he would not be prejudiced by an expedited hearing, save that he requests sufficient time to adequately prepare his case.  The husband also denies the wife’s allegations with respect to him being financially inept albeit he accepts that he has been having difficulty meeting the mortgage repayments.

3. I propose to first consider whether the wife has acted reasonably and without delay in the conduct of the case and in her application for expedition. Both the husband and wife submit that they attempted to resolve matters prior to the wife instituting proceedings. A conciliation conference scheduled on 29 November 2016 was adjourned by consent. The wife submits it was adjourned due to a lack of financial disclosure from the husband and because the husband’s mother gave notice of her intention to seek repayment of an alleged loan. The husband submits it was adjourned because the wife’s lawyers did not have sufficient time to review the financial disclosure and obtain adequate instructions from the wife. In circumstances where the parties jointly agreed to the adjournment, I am satisfied that it was not unreasonable in the circumstances. Following that conciliation conference having indicated her intention to seek priority she has made that application without unnecessary delay.

4. There is a significant issue in this case as to the wife’s ability to participate meaningfully in the proceedings as a consequence of her health issues. The wife submits while she is severely physically disabled, her mental capacity and ability to comprehend verbal communication is not impaired. The wife relies upon the report of her neurologist Dr B dated 10 April 2017. Dr B last reviewed the wife on 23 November 2016.  Dr B concluded the following

   [The wife’s] medical condition does not significantly impact her capacity to understand the nature and possible consequences of legal proceedings. [The wife’s] speech is slow and slurred (dysarthric). At times, her speech is inaudible. She would be able to give instructions for the conduct of legal proceedings but she would require adequate time to do so. She is able to answer closed questions.

   [The wife’s] condition will continue to gradually deteriorate. Her speech is likely to become increasingly difficult in the short to medium term (three to six months).

5. There is also a report from speech pathologist Ms C dated 3 March 2017. Ms C states

   [The wife] presents with severe profound-motor dysarthria, which is a motor speech disorder that impacts on the intelligibility of speech. There is increased tone (spasticity), that impacts on her speech movements. She has poor respiratory support for speech, cannot always achieve voice and her articulation of sounds is imprecise. [The wife’s] speech fluctuates and at times, she can say or whisper intelligible words however when fatigued, she is only able to use her eye closure to indicate a yes response…

   [The wife’s] speech is often unintelligible and always has a low volume. She relies on familiar communication partners who are able to use a combination of lip reading and yes/no clarification questions. [The wife] is also able to be supported to spell out words which is reliable in getting information across but it is a very laboured technique…

   The course of MS is unpredictable however it appears that [the wife] has either a remitting progressive course with the slow accumulation of deficits or a slow progression of the disease without remissions…it is likely further deterioration of speech will occur however I cannot predict the timing…I can state [the wife] should be offered the opportunity to communicate on any important issues without delay.

6. I am satisfied that the wife’s speech is impacted on by her MS and that a delay in the final hearing may cause the quality of her speech to deteriorate as her illness progresses.

7. The husband also accepts that the wife’s speech is impaired and is deteriorating. However, he questions her ability to participate in the proceedings at the current moment, as she faces extreme difficulties with her speech and the process of travelling to Court alone would be extremely taxing on her. The husband submits that if the wife were to participate as a witness at the trial, the proceedings would be protracted.

8. Whilst it may be difficult for the wife to participate in the proceedings I am satisfied that the situation is not likely to improve and that in all of the circumstances it is appropriate for this matter to be given priority.

9. The husband’s mother who has been joined as a party to the proceedings deposes that she is suffering from advanced cancer and that her prognosis is uncertain.  This is another reason why in my view the matter requires priority.  

Conclusion

1. I am satisfied that these are matters which warrant this matter being given priority to the detriment of other cases awaiting hearing in the list and propose to list this matter for trial management hearing before me at 10.00 am on 31 May 2017.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 22 May 2017.

Associate: 

Date:  22 May 2017