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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Willis & Riley

Details

AGLC: Willis & Riley [2022] FedCFamC1F 764
Case: [2022] FedCFamC1F 764
Decision Date

CaseChat Overview and Summary

In the case of Willis & Riley, the Federal Circuit and Family Court of Australia was presented with an application for an adjournment of a final hearing concerning the property settlement of the parties. The applicant, Ms Willis, was represented by counsel, while the respondent, Mr Riley, was a self-represented litigant. The court was required to decide whether the final hearing should be adjourned to allow Mr Riley to seek legal and accounting advice, particularly regarding allegations made by Ms Willis in her trial affidavit. The court also considered whether there had been full disclosure by Ms Willis regarding the leasing arrangements for the commercial property operated by her business.

The court held that Mr Riley had ample opportunity to obtain legal or accounting advice regarding the taxation issue since he had been on notice since 15 June 2022 when the applicant's affidavit was filed. The court found that his failure to do so was not a valid basis for an adjournment. In relation to the second issue, the court found that it was common ground that the original lease document had been provided to Mr Riley. However, the court noted that the applicant's submission that any additional documents emerging from the negotiation with the landlord would not impact the valuation of the business was valid. As for the third issue, the court found that the applicant had provided the necessary documents and information in a timely manner, and Mr Riley's complaint of non-disclosure was an attempt to delay the trial.

The court dismissed the respondent's application for an adjournment, stating that the delay would place a significant burden on the applicant in terms of cost and delay, and would also place additional pressures on already over-burdened court lists. The overarching purpose of the Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible.

The court's final order dismissed the husband's oral application to adjourn the final hearing listed to commence on 1 September 2022.

Orders