Willis & Riley
[2022] FedCFamC1F 764
Federal Circuit and Family Court of Australia
(DIVISION 1)
Willis & Riley [2022] FedCFamC1F 764
File number(s): MLC 10186 of 2020 Judgment of: JOHNS J Date of judgment: 1 September 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – application for adjournment of final hearing – final hearing date listed in May 2022 – where the respondent is a self-represented litigant – where the respondent was represented by counsel at the time of setting the matter down for final hearing – where the respondent has subsequently elected to represent himself – where the respondent alleges the applicant has failed to provide timely disclosure – where the respondent seeks an adjournment to obtain legal and accounting advice – where the respondent has been on notice of the applicant’s trial material since its filing on 15 June 2022 – where the respondent has failed to obtain advice in the intervening period – where the adjournment application is refused Legislation: Family Law Act 1975 (Cth), Sections 67 & 90SM
Federal Circuit and Family Court of Australia Rules 2021 (Cth), Rule 1.04
Cases cited: Mertens & Mertens [2016] FamCAFC 136 Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 1 September 2022 Place: Melbourne Counsel for the Applicant: Ms Fisken Solicitor for the Applicant: MST Lawyers The Respondent: Self-Represented Litigant ORDERS
MLC 10186 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WILLIS
Applicant
AND: MR RILEY
Respondent
order made by:
JOHNS J
DATE OF ORDER:
1 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.That the husband’s oral application to adjourn the final hearing listed to commence 1 September 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Willis & Riley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JOHNS J
This matter comes before the Court in relation to the parties’ competing applications for an adjustment of their property interests. The matter was originally listed to commence on 31 August 2022. Due to the pressures in my list, the matter has not, in fact, been in a position to commence until this day, being 1 September 2022.
The matter was stood down for a period of approximately 40 minutes this morning to enable the respondent to seek advice from the Duty Lawyer, he having elected to represent himself at the final hearing. The applicant is represented by Counsel.
The respondent has legal qualifications from B University and C University.
The first application made upon the commencement of the hearing is an application by the respondent seeking an adjournment of the final hearing. The final hearing was originally set down by me at a Case Management Hearing on 13 May 2022. At the time I made orders setting the matter down for final hearing, Ms Fiskin of Counsel appeared for the applicant and the respondent was represented by Mr Glezakos of Counsel. At that time, I listed the matter for a three-day hearing, made trial directions in relation to the filing of trial affidavit material and otherwise made the usual orders for the filing of case outline documents. There were also orders made granting the parties leave to issue subpoenas for the production of documents.
The respondent raises three grounds with respect to his adjournment application. Firstly, he submits that he needs an adjournment in order to seek advice, whether it be legal or accounting advice, in relation to his previously filed taxation returns. That issue arises as a result of allegations made by the applicant in her trial affidavit filed 15 June 2022. At [32] of that affidavit, the applicant deposes as follows:
The Respondent’s taxation documents indicate that during the 2019 and 2020 financial years, he earned approximately $100,000 and $120,000 gross per annum respectively. During those years, the Respondent also received tax refunds totalling approximately $26,000 per annum as a result of claiming rental expenses from the D Town property as tax deductions…
The issue that emerges from that affidavit is the question of whether those taxation deductions were lawfully obtained, in circumstances where it is the applicant’s contention that the respondent has had the sole use and enjoyment of the D Town property, it not being an investment property available for commercial rental purposes. The respondent has been on notice as to that issue since receipt of the applicant’s affidavit which was filed on 15 June 2022. In my view, the respondent has had ample opportunity to obtain whatever legal or accounting advice he needed in respect of that issue. In my view, his failure to do so is not a basis for an adjournment of the proceeding.
The second issue raised by the respondent is that there has not been full disclosure by the applicant with respect to the leasing arrangements for the commercial property occupied by the business operated by her. It is common ground that the original lease document has been provided to the respondent; he conceded that fact during the course of oral submissions. At issue is the question of whether there are additional documents that have not been produced.
The submission made on behalf of the applicant is that she is currently undertaking negotiations with the landlord of that property and the option to renew has not expired as a result of those ongoing negotiations. In any event, it is the position of the applicant that the business is to be treated as a going concern and, therefore, those lease negotiations will not impact the valuation of the business. It is, therefore, submitted that any documents that might emerge from the negotiation between the applicant and the landlord will not affect the progress of these proceedings.
The third issue raised by the respondent is his complaint that the applicant has been tardy in her production of documents. In particular, he raises issue that the third and fourth quarter BAS statements for the business operated by the applicant, the draft profit and loss statements and balance sheets for the year end 30 June 2022 were only received by him on 22 August 2022.
The applicant takes issue with that complaint. Firstly, she relies upon correspondence forwarded by her lawyer to the respondent dated 20 July 2022, which provides to the respondent the third quarter BAS statement for her business, the 2020/21 taxation return for that entity and the profit and loss statement. That correspondence also confirms that the fourth quarter BAS statement will be provided as soon as possible. That fourth quarter BAS statement, together with draft profit and loss statements and financial summaries for the business for year ending 30 June 2022 were provided to the respondent by letter, dated 22 August 2022.
It is submitted on behalf of the applicant that those draft documents together with the third and fourth quarter BAS statements have been provided to the single expert valuer, who has prepared a valuation of the business and that she will be in a position to provide an update if there is any change in the valuation evidence when she gives her evidence tomorrow. On that basis, the application for an adjournment is resisted.
Further, it is submitted on behalf of the applicant that the respondent, at all times, has been provided with documents and information in a timely manner and that his complaints as to non-disclosure are merely an attempt by him to seek a delay of the trial. The applicant also submits that there are documents and information sought by the respondent that simply do not exist. In particular, reliance is placed on his request for monthly P&L; that is, profit and loss updates and the like. It is submitted that the expectation that the applicant generate documents in response to such request is an onerous and unreasonable expectation. Given the value of the parties’ asset pool, there is much force in that submission.
The determination of any adjournment application is always a delicate balancing act. The Court has a wide discretion to grant adjournments, but it is not an unfettered discretion. In the decision of Mertens & Mertens [2016] FamCAFC 136, Kent J helpfully summarised the matters that ought be taken into account when determining an application for an adjournment. Those matters include that the Court ought take into account the reasons for the adjournment, the period of delay such adjournment would give rise to, any prejudice or disadvantage to other parties that cannot be compensated by way of orders for costs and the affect upon the Court and other litigants before the Court were an adjournment granted.
The fundamental consideration in determining an application for adjournment is whether it is necessary in order to do justice between the parties. In addition to the factors identified by Kent J, of relevance are the overarching purpose set out in the Federal Circuit Court and Family Court of Australia Family Law Rules 2021 (Cth) (“the Rules”). That purpose is set out at Rule 1.04 of the Rules, and provides as follows:-
The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Rule 1.04(2) of the Rules further provides that:-
Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
As I have already observed, the pool of assets which forms the subject of the dispute is extremely modest. On any view, it is less than $500,000. The costs expended to date by the Applicant, as disclosed in the Costs Notice filed on her behalf on 30 August 2022, will be in excess of $200,000 by the conclusion of this hearing. Any delay would ensure that those costs are further increased.
In my view, there is no basis for the Respondent’s application for adjournment. The respondent has been on notice as to the taxation issue since at least mid-June, when he received the applicant’s trial affidavit. Further, I am satisfied that he has been provided with updating financial information as required, which is confirmed by the letters tendered on behalf of the Applicant, being the letters dated 20 July 2022 and 22 August 2022.
Any issues in relation to alleged non-disclosure are matters that may be taken into account in an assessment as to whether there ought be any orders for costs, or whether there ought be an adjustment, having regard to section 90SM of the Act. They are not matters that found an adjournment of the proceeding. The respondent could not point to any document that had not been produced, the absence if which would impact the ability of the matter to proceed this day. I am satisfied that any delay in the hearing would place a significant burden upon the applicant, both in terms of cost and delay, particularly given that the matter would not be relisted until 2023. Further, such adjournment would also place significant additional pressures on already over-burdened Court lists.
Having regard to all of those circumstances, I dismiss the respondent’s oral application for an adjournment of the proceedings.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 1 September 2022
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