No legal representation causes delays

No legal representation causes delays

Harty & Harty

1. In 2015, property and maintenance proceedings were commenced in the Federal Circuit Court by Ms Harty (“the wife”). Mr Harty (“the husband”) was the respondent. In 2016, those proceedings were transferred to this court.
2. The court file is in a number of volumes, housed in a box and the most recently-filed document is numbered over 80. For a modest financial dispute, this litigation has been unguided and under-controlled. The reasons that follow indicate the problem.
3. In culling the court file, numerous annexures attached to affidavits kept together by “bulldog” clips were returned to the parties who, although previously represented by lawyers, now face the daunting prospect of representing themselves in their property dispute because, as they would have it, they can no longer afford representation let alone legal advice. That dilemma however, severely impacts upon the resources of the court as it tries to identify relevant issues and what evidence supports any orders for relief being made.
4. In the busy Judicial Duty List, the task just mentioned was not only more daunting than usual but also had implications for other litigants desirous having their interim hearings determined. The lack of respect and trust between the parties was not only palpable, it contributed to the difficulty in isolating what the parties were arguing about.
5. I do not propose to set out more than the basic detail here necessary to make clear why the orders I have published are proper in the circumstances.

THE TRANSFER OF PROCEEDINGS

6. The transfer of proceedings of itself from the Federal Circuit Court in this case has created two problems. First, the delay has prejudiced the parties getting on with their lives. They had anticipated a final hearing in August 2016 but that said, on what I heard from them, they would hardly have been ready for judicial determination. The husband maintained the transfer was a delaying tactic of the wife caused by her filing a large bundle of papers on the court at the last minute causing the relevant judge frustration.
7. It was apparently suggested in the Federal Circuit Court that the case would take five days and that time was not available. Now knowing what the parties are disputing, that estimate seems wildly inaccurate. This case is relatively simple.
8. Without making any finding about why the transfer occurred, the documents filed in this Court by the wife would indicate some concern to which I shall also return.
9. The second problem is that, at a time when both parties were represented, they filed applications for final orders that were imprecise. Whilst that is permissible where there is uncertainty about what property is to be divided, here, the wife claimed that she had been a significant part of the business over a number of years yet she found that she was not an owner. Why she would not have known what property was to be divided, is puzzling.
10. For his part, the husband too pleaded imprecisely indicating he wanted discovery from the wife. When asked what discovery it was he wanted now (if ever), he said he did not want any documents. Having regard to the wife’s apparent impecunious circumstances, I am not surprised.
11. This litigation therefore got off on the wrong foot.
12. Even as late as the transfer to this Court, still no pleading had been undertaken with particularity by either party. When challenged, neither party was able to articulate what final orders they would be seeking even on some percentage basis other than the husband said that the wife was entitled to 50 per cent of the increase in the value of the assets subsequent to their relationship commencing. Because of that uncertainty, orders will be made requiring the parties to commence the long road to trial on a proper footing.

26. The husband commenced the proceedings first by application for interim orders filed on 28 November 2016 (although he filed a response to some indefinable application on 7 November 2016). He sought orders to “stop” his spousal maintenance obligation but when queried as to what he meant, he pondered the idea and then said that he thought it should be reduced to $500 per week rather than the $1000 per week.
27. In and around the time the husband filed the application, the wife filed some form of application electronically. It seems she wanted to enforce unpaid spousal maintenance obligations but for reasons that I could not decipher, that application was not only not accepted by the court but has also disappeared. Whilst that would normally be concerning, the wife then filed four new applications and made no mention of her enforcement application knowing that her earlier application had not been issued. She sought an order that the husband’s “stop” application, be determined at the same time as her “discovery” application but otherwise gave no indication of any enforcement requirement. As she had not taken any action to rectify the problem, it was not fair to the husband to permit a new application.
28. The wife’s four applications were really one. I have not been given any explanation as to why four became necessary. She sought in language peculiar to the retail industry, documents that she asserted the husband had, but had not given her. He could not give them to her anyway because there was (and is) a restraint on her seeing them but what she wanted was what her “shadow” expert desired produced. No affidavit was filed by this expert but an email to the wife from him was exhibited to an affidavit she filed. Unfortunately, the email was neither comprehensive nor intelligible.
29. Most important of all however, was the fact that the husband consistently maintained that he had provided everything that he had in his possession. He said he had given it to Mr B and in due course, Mr B had given it to Mr C. All of his “files” are electronically stored.
30. The wife accused the husband of deleting relevant and important documents that would assist Mr C but the husband’s denial was adamant.
31. With the convoluted and incomprehensible nature of the wife’s evidence, the only solution was to allow limited cross-examination. That then descended into a farce. The wife would not allow the husband to speak and when he did, she spoke over him. Her cross-examination was a series of statements rather than questions to which he responded with similar argument and heated invective.
32. Any attempt to understand what was said by resort to the transcript will be nigh on impossible.
33. The husband maintained the wife was not only incorrect about the position she held but nothing I heard in cross-examination indicated that he was not being truthful.
34. The wife had convinced a registrar to issue a number of subpoenae to produce documents. Despite a warning to the wife to challenge the husband in cross-examination with the documents that she said she had seen in subpoenaed material to disprove his denials, she did not do so. In the end, she resorted to comment and argument with the husband about things that had happened even in their relationship which I ruled to be irrelevant. Ultimately, the wife sat down as frustrated as the husband.

48. Without the Court being assisted by submission and argument, I am left to try and decipher what the basis is for any change. It would seem that his basis is s 83(2)(a)(ii) as he did not submit that the wife’s circumstances had changed.
49. His unchallenged evidence is that with limited income and credit cards with balances “maxed out”, he had met a number of challenges in 2016. He received an account from Mr B for $10,563.05 and accordingly, reduced the payment to the wife to meet that. He went on a holiday to Ireland but did so at the cheapest possible rate by staying with family and only spending $5,000. But, that was $5,000 that should have been allocated as a priority towards maintenance before the luxury of even a limited holiday.
50. What is disconcerting however is that if financial circumstances statement of the husband from November is indicative of what his financial position was in April 2016, it is hard to see how he could then have been capable of meeting a commitment of $1000 per week. Even allowing for reductions for unreasonable expenditure, the following weekly picture emerges:

Income $3201
Tax $1018
Rent 752
Mortgage (wife’s home) 308
Child support (previous family) 545
Living (say) 300
Utilities 75
Clothing (say) 100
Medical (say) 100
Chemist 30
Total $3228

But in addition to that, the husband’s “maxed out” credit cards had to be serviced. He owes $25,000 and was paying them off at the rate of $800 per week perhaps unnecessarily.

51. It was not argued, and I do not consider I can determine the matter on the basis that, the consent order was not proper at the time for the reasons I have already given.
52. It is obvious however that there is little money to go around here and also unsurprising that neither party can afford lawyers.
53. The husband complained bitterly that the wife had filed all of the large volume of documents in August to delay the hearing and as such, caused him significant legal bills. He complained that he had to pay those bills in circumstances where the wife was incessantly contacting his lawyers and running up accounts. Whilst I understand the dilemma, he could have given instructions that they were not to deal with the wife in those peculiar circumstances. If, as I suspect, the wife is misguided or unguided as to what she is doing, this case needs an urgent final hearing but that is not possible until the issue of valuation is sorted out. Unfortunately, the further delay will mean that the maintenance obligation will go on.
54. I find that the husband has not shown a change of circumstances since April 2016. He had financial problems in April which only seem to have worsened because of the legal costs just mentioned but he somehow found the necessary funds to travel to Ireland. He found the funds to travel to Sydney for business purposes.
55. The wife did not put to the husband whether there were undrawn profits or how any value could be drawn from the company but then again, the husband did not present that evidence either.
56. The husband has not satisfied me that there has been a change of circumstances and his application must fail.