Wicklow and Wicklow and Anor - [2008] FamCA 970

FAMILY COURT OF AUSTRALIA

WICKLOW & WICKLOW AND ANOR

[2008] FamCA 970

FAMILY LAW – PRACTICE AND PROCEDURE – Discharge of Order made under Rule 11.02

Family Law Act 1975 (Cth)

Zane and Allan [2008] FamCAFC 115

APPLICANT:

Mr Wicklow

RESPONDENT:

Ms Wicklow

INTERVENOR:

Deputy Commissioner of Taxation

FILE NUMBER:

SYC

2648

2007

DATE DELIVERED:

12 November 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

30 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

COUNSEL FOR THE RESPONDENT:

Mr Campton

COUNSEL FOR THE INTERVENOR:

Mr Williams SC with Ms Rees

Orders

Order 2 of the Orders made on the 5 June 2008 is discharged.
The husband is to pay the wife’s costs thrown away by reason of his non compliance, late compliance or incomplete compliance with the orders and directions made in these proceedings.
The costs referred to in Order 1 of these Orders are to be agreed, or failing agreement, assessed.
Payment of the costs to be made by the husband is deferred until completion of the proceedings, the payment to be made from the husband’s entitlement from any order made in the proceedings altering the parties’ interests in property and such entitlement is charged with this obligation.
I propose to allow the husband to briefly address in written submission the issue of the basis on which costs should be assessed, that is to say on a party/party basis or an indemnity basis. Should he wish to do so, I direct that any submission in this regard should be filed within 14 days by the husband and the wife will have a further 14 days in which to answer such submissions, and the husband will have a further 7 days in which to rely. I propose, in the absence of submissions, to order payment of costs on an indemnity basis and absent submissions aliunde from the husband within the time limited, it will be so ordered.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2648 of 2007

MR WICKLOW

Applicant

And

MS WICKLOW

Respondent

And

DEPUTY COMMISSIONER OF TAXATION

Intervener

REASONS FOR JUDGMENT

Introduction

On 5 June 2008 an application was made before me by the wife seeking that the husband, who was then appearing unrepresented, not be further heard until he made certain disclosures and provided certain documents.
The husband sought an adjournment of the proceedings.
I granted the adjournment conditionally upon, inter alia, the husband fulfilling certain obligations as to the filing of documents by way of financial disclosure and the provision of certain other documents.
I permitted the wife to proceed with the proceedings on an undefended basis if the husband did not comply with the orders.
The matter was next listed for mention before me on 25 June 2008 and the husband conceded non compliance with the orders previously made, but gave undertakings to the Court that he would comply.
I noted the undertakings and adjourned the matter for further mention before me on 23 July 2008.
On 23 July 2008, inter alia, the wife asserted non compliance with the directions and the husband conceded that non compliance, in part. The husband said he wished relief from the previously made order that the matter be permitted to proceed on an undefended basis. This application was adjourned to 4 September 2008.
On 4 September 2008 orders were made requiring the husband to provide further information and documents and I extended the time within which the husband could bring an application for relief from the self executing order.
In the proceedings which were adjourned to the 30 October 2008 the wife asserted that the husband had still not complied, even belatedly, with all the orders and directions made on the 5 June 2008. This was a complaint about the form of the disclosure, which was in the form of notated bank records. They were difficult to read and no summaries were provided and no attempt had been made aliunde to provide an easily readable list.
The wife asserted that the husband had not even now provided as directed a proper list of documents. In an affidavit filed before me the husband lists further documents, said to be in a storage facility, which he had overlooked.
It was asserted by the wife that the husband’s compliance with certain parts of the orders was late. He has at the commencement of the hearing before me, failed to comply with orders made on 4 September 2008 as to the production of documents in relation to his dealings with the Australian Taxation Office. It was further pointed out that the husband did not serve his application for discharge of self executing orders on the day upon which it was filed.
In addition, reference is made by the wife to the failure of the husband to pay costs ordered which he had the means to pay notwithstanding his assertion to the contrary.
The husband, since the last mention of the matter before the proceedings were listed before me today, has had the benefit of legal representation.
The husband seeks a discharge of the order referred to and says that he has now complied with all orders as to disclosure. He also points to what he says is a failure of the wife to make a proper disclosure as to the R Family Trust. In that regard, the wife has filed a taxation return in relation to the trust but that is all. She also has failed to make disclosure of her entitlements under her deceased father’s will, an estate of which she is said to be a beneficiary and of which Will she is an executor.
The reply that probate had not yet been granted did not seem to me to be an answer to the obligations she has to make the best disclosure she can at the relevant time, noting that the obligation for disclosure is continuous and can accommodate changes if they occur. I am reminded of the old adage that he who seeks equity must do equity. The husband indicates that he will in due course be seeking an order that the wife’s application for further interim costs should be stayed, until such time as she makes disclosure of these matters.
This matter was adjourned by me, and on such adjournment I indicated that I was inclined to discharge the order made having regard to the decision of the Court in Zane and Allan [2008] FamCAFC 115.
It is not as though the conduct of the husband in this matter in not complying with orders in a timely and ordered fashion, or indeed some not at all and fully honouring his obligations to disclosure are not egregious failings. The consideration of what follows from those failings is that much of the husband’s conduct can be properly sanctioned and compensated in the form of costs orders. The husband is (although belatedly) attempting compliance with the orders. The late disclosure of documents is not something, as is the way of these matters which are dealt with on affidavit evidence, which I can fully examine. However, it leaves a bad impression that so significant a disclosure is made at the last moment from documents stored by the husband and which are under his control.
The Full Court in Zane and Allan (supra) said:
“238. In relation to both appeals it is appropriate to repeat here what was said by a previous Full Court in Tate v Tate (supra):
99.In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” [emphasis added] (State of Queensland v J.L. Holdings; supra). But Justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch and Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of the relevant evidence.
…
107.The Court, no less than those who litigate before it, is constrained by the interplay of competing principles. In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end. Such a goal overrides any notions of punishment for disobedience of such orders.
108.Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.”
Counsel for the wife has conceded that the failures of the husband in these proceedings are not as egregious as those of the defaulting party in Zane and Allan (supra). In my view, the failures which have occurred, the attempt made to remedy those failures and the belated substantial compliance mean that, in the weighing of the factors which I must consider, I have come to the conclusion that the requirements of justice being done to all parties can be met by allowing the husband to have the order he seeks, on condition that he meet the costs thrown away by his default.
In this way, the loss occasioned to the wife will be met and the matter may proceed to a full hearing, which will do justice to both parties. I propose to make an order that in this case the costs occasioned to the wife by reason of the husband’s default in compliance with the orders and directions made by this Court, be paid by him on the completion of these proceedings and that his entitlement to any property settlement determined by this Court be charged with his obligation to meet those costs.
In making an order for costs I have a wide discretion as set out in Section 117. In section 117(2A) are set out the matters I must take into account in determining such an order and are:

(a) the financial circumstances of each of the parties to the proceedings

On a consideration of the balance sheet herein, the financial circumstances of the parties, on any likely result in the proceedings, be such as would enable them to pay an order for costs, even on an indemnity basis, if such order is made in this matter. It is said by the husband that he does not presently have access to funds and accordingly I will make my order enforceable from the time that the parties conclude their proceedings.

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party

Neither party is in receipt of legal aid assistance.

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the forgoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection directions to answer questions, admissions of facts, production of documents and similar matters.

I have referred in my judgment to those matters under this heading which I have taken into account. Counsel for the husband, it is noted, said that he did not quibble with the assertion that there had been non compliance.

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.

It is clear that no order would have been made of the nature of the self-executing order had there not been such non compliance. I have referred to above to some of the orders which have not been complied with.

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings

The husband has succeeded in his application for the recision of the order and the wife has succeeded in her desire to put conditions on any such order. Neither party therefore, has been wholly unsuccessful in the proceedings.

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer.

There is no evidence of any such offer.

(g) such other matters the court considers relevant.

Other matters I have taken into consideration have been discussed above.
In the circumstances of this case, I propose to allow the husband to briefly address the issue of the basis on which such costs should be assessed, that is to say on a party/party basis or on an indemnity basis. Should he wish to do so, I direct that any submission in this regard should be filed within 14 days by the husband and the wife will have a further 14 days in which to answer such submissions and the husband will have a further 7 days in which to reply to any answer.
If no such submission is received within that time costs will be on an indemnity basis.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 12 November 2008