Baughan & Halsted

[2021] FCCA 1626

FEDERAL CIRCUIT COURT OF AUSTRALIA

Baughan & Halsted [2021] FCCA 1626

File number(s):

MLC 10907 of 2020

Judgment of:

JUDGE CARTER

Date of judgment:

21 June 2021

Catchwords:

FAMILY LAW – property – interim hearing – de facto relationship – short relationship – respondent asserts no order should be made – application for litigation funding – parties’ relative financial strength – parties’ capabilities to meet litigation expense – partial property – whether application weak, fanciful or misguided – where application stands reasonable chance of success – applications granted

Legislation:

Family Law Act 1975 (Cth), ss 79A, 90SM, 117

Cases cited:

Strahan & Strahan (Interim property orders) [2009] FamCAFC 166

Zschokke & Zschokke (1996) FLC 92-693

Number of paragraphs:

62

Date of hearing:

1 June 2021

Place:

Melbourne

Counsel for the Applicant:

Ms Jeans

Solicitor for the Applicant:

Savage & Co Pty Ltd

Counsel for the Respondent:

Ms Lane

Solicitor for the Respondent:

Lander & Rogers

ORDERS

MLC 10907 of 2020

BETWEEN:

MR BAUGHAN

Applicant

AND:

MS HALSTED

Respondent

ORDER MADE BY:	JUDGE CARTER
DATE OF ORDER:	21 JUNE 2021

THE COURT ORDERS THAT:

1.Upon settlement of the sale of the property at B Street, Suburb C (“the B Street, Suburb C property”), the Respondent cause the following payments to be made:

(a)the sum of $45,000 to the Applicant by way of part property settlement; and

(b)the sum of $80,000 to the Applicant’s Solicitors by way of litigation funding.

2.The parties have liberty to apply with respect to the sale of the B Street, Suburb C property.

3.The costs of the valuations of the properties ordered pursuant to order 2 of the orders made 1 June 2021 be at the parties’ equal expense.

4.The Applicant forthwith sign all documents and do all things to authorise Slater & Gordon Lawyers to include in the copy of their file to be provided to the solicitors for the Respondent pursuant to the Orders made 1 June, 2021, copies of all letters of advice and memorandum from Counsel.

AND THE COURT NOTES THAT:

A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 under the pseudonym Baughan & Halsted is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Revised from transcript

JUDGE CARTER

1. This matter was before me on the 1st of June in the duty list.  On that day, I heard detailed submissions by Counsel, but I was unable to deliver judgment that day, given it was a very busy duty list.  Orders were made on that day by consent for the Applicant de facto husband (“the Applicant”) to have leave to institute property proceedings out of time.  There were also orders made by consent for a number of properties to be valued and for the provision of certain documents by way of discovery in relation to the Applicant’s back injury. 

2. I gave the matter a final hearing date on the 21st of November 2022 and otherwise reserved my decision in relation to the outstanding matters, which are as follows:

   (a)firstly, the Applicant’s application for litigation funding in the sum of $80,000;

   (b)secondly, his application for a part property distribution of $45,000; and,

   (c)thirdly, the Respondent de facto wife’s (“the Respondent”) application for the provision of additional documents in relation to the Applicant’s back injury claim.

3. There was also a minor dispute as to how the valuations were to be funded.  The Respondent says the parties should equally share the cost of the valuations.  The Applicant says that if Orders are made for litigation funding or a partial property settlement, he would pay for half, but otherwise the Respondent should pay for the entirety of the cost of the valuations.

4. The Applicant is 66 years of age.  He operates a small business and he has done so since the back injury that he sustained in about 2010.  He has also suffered a series of strokes, which has affected his speech and balance.  He derives a somewhat limited income from operating the business.  I understand he was able to have the benefit of the jobseeker allowance, but that may now have ceased or been reduced.  He says he makes about $280 a week from his business.

5. The Respondent is 64 years of age.  She is a retired professional.  She has suffered a series of significant health issues, having been diagnosed with breast cancer for which she is continuing to be treated.  She receives rental income from various properties in her name. The income is put towards the mortgages and the outgoings, leaving her with a shortfall between her income and expenditure.  She has no savings and said she has had to borrow from family to meet her expenses and legal costs. 

6. The parties met in 2009. They commenced cohabitation about 12 months later, at which time the Applicant moved into the Respondent’s home in Suburb D.  The parties separated in about June 2018.  Effectively, it was a de facto relationship of some eight years.  There are no children of this relationship. Both of the parties have adult children from previous relationships.

7. The parties agree that the Respondent’s initial contribution was significantly greater than the Applicants, although the precise quantum of that is in dispute.  The Respondent had properties in Suburb E, Suburb F, B Street, Suburb C, Suburb D and in Country G.  She says her net position was a little over $3,600,000. Retrospective valuations are going to be prepared in due course. 

8. The Applicant says his initial contributions were limited to his $70,000 superannuation entitlements.  At that time, he says he also had a car worth about $10,000 and a similar amount owing on credit cards.  However, within a few months of the parties living together, he injured his back. In July 2017, a little less than 12 months before the parties separated, he received a compensation pay out of some $297,937 and then a further $33,153 a month later. 

9. There is a dispute as to how at least part of those compensation funds have been applied. The Respondent says that the Applicant has used or retained the bulk of those funds for his sole use, including purchasing the business, which he continues to operate at this time.  She does acknowledge that he paid approximately $10,800 into the Country H property, being a property that she had purchased in 2013. She also concedes that he purchased a dishwasher for that property for about $1,300.  The parties appear to be in agreement that the Applicant paid $22,000 towards a cruise that they both took. The Respondent says that the Applicant otherwise retained about $67,000 for his sole use. 

10. The Applicant says the balance of the compensation monies were used to meet his day to day living expenses and the parties’ lifestyle.  His Counsel also raised that the only income that he currently generates is from servicing machines in the business post separation, together with any government pension that he is entitled to. She says accordingly the expenditure of the balance of the compensation monies by her client is quite justifiable. 

11. It is the Respondent’s overall position that there should ultimately be no orders with respect to a division of property. 

12. In relation to the properties that she owned prior to the parties’ cohabitation, starting with the Suburb D property, it is common ground that she paid all the mortgages, rates and insurances on that property.  The Applicant says that he did attend to some maintenance, including, he says, regularly clearing the roof and spouting, tending to the garden, tending to the fireplace, ensuring there was wood in the house and attending to some housework.  He says he also cleaned and repaired the toilets and built a wardrobe in one room.  The Respondent says, even taking those contributions at their highest, the contributions are quite modest and there is some merit in that submissions. 

13. The Respondent also paid all the mortgages, insurance rates and outgoings and the like on the Suburb F property, which was largely rented out and substantially covered its outgoings.  The Respondent acknowledges that the Applicant undertook some maintenance on the Suburb F property, but the extent of that contribution towards maintenance is significantly in dispute.  The Respondent says his contributions were modest. Whilst the applicant undertook some basic maintenance, she paid for the costs of all the materials for those repairs and maintenance to be undertaken.  The Applicant says that he assisted with works on various rooms in the property, although he does not set out precisely what he means by that.  He also says he installed a fence.  He says that when the Suburb F property was tenanted, he attended the property every few months when the tenants had an issue and provided assistance. This included fixing the backdoor, attending to some cupboards, attending to lighting issues and tidying the garden and gutters.

14. In relation to the Respondent’s B Street, Suburb C property, again, it is agreed that she paid all the outgoings, with no contribution from the Applicant.  Like with Suburb F property, the Respondent concedes that the Applicant undertook some maintenance on the property. Again, she describes it as quite minimal.  The Applicant says that he assisted with clearing and cleaning the property between rentals in 2012.  He says he worked on the floors and bathroom, that he tidied the backyard, undertook some painting and refitted a window. 

15. Similarly, in relation to the property in Suburb E, it is conceded that the Respondent paid for the mortgage and the outgoings on that property. She says that any improvements were undertaken at her expense.  I note that it is the Applicant’s case that he did undertake some improvements on that property, which he says included waterproofing the balcony, improving the kitchen and undertaking some fencing. 

16. In relation to the land in Country G owned by the Respondent, that is vacant land. It is unencumbered and it appears common ground that the Applicant has made no contribution financially or otherwise towards its upkeep or retention.

17. In 2013, the Respondent purchased a property in Suburb H.  It is the Applicant’s case that that was a joint investment.  It does seem that the parties looked together for that property.  The Applicant says he attended open for inspections and so on.  The Respondent acknowledges that he helped look for suitable properties and bid at the property auction. She says that was as a result of the Applicant’s background before his injury as a real estate agent.  However, again, it is common ground that all of the funds for the purchase of the Suburb H property came from the Respondent who also borrowed funds from her brother, and took out a mortgage. The Suburb H property and the mortgage encumbering the property are all in the Respondent’s sole name. The Suburb H property is rented out.  The Respondent says there is a shortfall between the rental income and the mortgage. She meets that shortfall by applying the rental from the other properties.  It is common ground that there was no significant financial contribution by the Applicant to that property. The Respondent says he has made really no contribution at all.

18. Like with some of the other properties, there is a dispute as to what improvements and maintenance the Applicant has provided in relation to the Suburb H property. The Applicant says that he assisted the Respondent to undertake significant renovations.  He says he attended on the property almost daily for around three months.  He says he assisted in doing what he described as a ‘complete overhaul of the property inside and out’.  It is his evidence that he undertook painting, tiling, flooring works, gardening and otherwise prepared the property for renting out.  He concedes that the Respondent paid for the contractors and otherwise funded the vast majority of the works.

19. The Respondent accepts that the Applicant did do some manual labour in the house and also in the garden. However, she says that the major improvements were done by paid contractors at her expense. 

20. In addition to the work that the Applicant says he undertook to maintain the properties, he says he made further contributions by providing care and occasional financial support and funds to the Respondent’s children, one of whom was 14 at the time the parties started living together.  The Respondent says she accepts he provided some assistance in this regard. However, she says the Applicant provided very limited financial assistance to her children and she otherwise does not agree as to the extent of the contributions that he outlines.  Further, the Respondent also accepts that following her breast cancer diagnosis and during her treatment, that the Applicant supported her to an extent, including attending appointments.  I note that the Applicant says that at that time, he undertook a greater degree of the homemaker duties when the Respondent was unable to do so.

21. This is an interim hearing and I am unable to make findings of fact where those are in dispute. Quite clearly, the level and extent of the Applicant’s contributions are squarely in dispute.  It is the Respondent’s ultimate position that there ought be no orders made and that the application be dismissed entirely on the basis she says it is not just and equitable for any order to be made.  On that basis, she opposes any order being made on an interim basis, either as a part property distribution or as litigation funding.

22. It is the Applicant’s case that the parties never mingled their finances.  She says she paid for all outgoings and bills for the home and most supermarket shopping.  She acknowledges that the Respondent paid for more expenses when the parties ate out and occasionally paid for the weekly grocery shop.  She says he otherwise made no contribution to her assets or liabilities.  She did not include him as a spouse on her financial returns.  She kept her business separate from him and they operated their own bank accounts. 

23. The Respondent emphasises that any work or maintenance the Applicant did on the properties was minimal and that if there were any materials that were purchased, she met the entire cost of that.  That does not appear to be in dispute.  She says that any small works he did were repaid by her meeting the costs of, for example, the parties having a holiday together.  She says the parties discussed and agreed that they would keep their assets separate and that they deliberately chose to do so. 

24. The Respondent says they each managed their funds without recourse to the other.  She says that the Applicant applied his compensation monies to purchase the business, put some in an investment, paid for a cruise and otherwise retained the $67,000, save for the purchase of the dishwasher.  She says she still has the properties at Suburb E, Suburb F, B Street, Suburb C, Suburb D and Country G that she had at the outset of the parties’ relationships.

25. The Respondent says the parties did set up one joint account. That was for a business they planned to set up, but that ultimately went nowhere.  She says she never used the account and the Applicant has adopted it as his own.  She says that her net position is now just shy of about $4.7million.  She says that the growth in her asset position is attributable to increases in the property values of her pre-relationship properties and nothing to do with the contributions, as modest as they are, by the Applicant.

26. Further, Counsel for the Respondent emphasised that post-separation, the Applicant has spent, she says, around $18,000 on overseas travel and paid approximately $17,000 to a person living overseas as well as having made regular overseas money transfers. 

27. Conversely, the Applicant says that the justice and equity requirements are easily satisfied given all the circumstances. It is his position that he seeks a 30 per cent division of the total pool on a final basis. As interim orders, the Applicant seeks a $45,000 partial property order as well as $80,000 by way of litigation funding, being payments under section 90SM and section 117 respectively.

28. It is clear from the case law that I cannot make an order for the interim provision of funds without identifying the head of power that is being exercised.  Different considerations are, of course, relevant to the exercise and my discretion depending on which power I am exercising. 

29. Whether the source of power is section 117 or 90SM of the Family Law Act 1975 (Cth) (‘the Act’), the question of the parties’ relative financial strength, the capacity of the Respondent to meet her litigation costs and the inability of Respondent to meet his costs are relevant considerations, as is the strength or otherwise of his application.

30. In relation to his application for litigation funding, the Applicant says that as at 5 May 2021 he owed his solicitors approximately $50,000.  He says they have assessed he will need a further $40,000 to run the matter to a final hearing.  Counsel for the Applicant emphasised that the Respondent owns and controls all the parties’ wealth with the Applicant having a net asset position of about $39,000 and the Respondent having a net asset position of around $4.7 million.  The Applicant says that without litigation funding he cannot afford to pay for valuations, nor can he afford to meet the costs of mediation or prepare for a final hearing. 

31. The solicitor for the Applicant has filed an affidavit setting out the amounts that are owed and an estimate of costs confirming the Applicant’s evidence.  She says that as a sole practitioner, it is difficult for her to conduct this matter without being paid on an ongoing basis and that to do so would put considerable pressure on her firm.  She says that without a substantial contribution being made from him she will have to reconsider her ability to continue to represent him.

32. No issue was taken with the quantum sought being reasonable, although, as I have indicated, the concept of payment was strongly objected to. 

33. In relation to the application for a part property distribution of $45,000, the Applicant emphasised that he has no savings or superannuation to draw on.  He says that the Respondent, conversely, has capital to satisfy the payment.  He says he is living with his sister and cannot afford to meet his own living costs to move out. He says that his sister lives about two hours out of Melbourne, which he says causes him significant difficulties, as he has to travel repeatedly to Melbourne to service his machines.

34. In relation to a part property distribution, there is a two-stage process: 

    (d)firstly, the Court must consider whether it is appropriate to exercise the power;  and,

    (e)secondly, if so, how that power should be exercised. 

35. The overarching consideration is the interests of justice.  The party seeking the order does not need to establish compelling reasons.  I need only be satisfied that it is appropriate to make the interim division.

36. As outlined by the Full Court in the well-known case of Strahan & Strahan (Interim property orders) [2009] FamCAFC 166, the following matters are relevant:

    (a)The question of the parties’ relative financial strength. That is, who controls the parties’ investments and income, and, is that in such a way that there is not a level playing field?  In this case, it is not controversial that the Respondent controls all of the assets. 

    (b)Secondly, I need to consider the capacity of the Respondent to meet her litigation costs.  It is apparent from her material that she does not have the capacity to meet legal fees through income.  However, she does have sufficient capital in various properties such that she will be able to meet her living costs and her litigation costs.  I note her position is that she has one of the properties on the market for sale to free up some funds.  She says she is living in quite parlous circumstances in terms of cash flow.

    (c)It is also relevant whether the Applicant has an inability to meet his costs. It is quite clear that he does not have the capacity to meet those costs through his income, and I accept that he will be unable to fully investigate the Respondent’s financial affairs if funds are not advanced. 

    (d)The Court also has to consider whether the Applicant has an arguable case to be heard. That is the objection to the application most strongly pursued by the Respondent. 

    (e)I also have to consider the likely costs of litigation that the Applicant will incur. I have referred to the evidence from the Applicant and his solicitor in that regard.

1. It is established law that the party seeking property settlement does not need to establish compelling circumstances. It is not, of course, an essential precondition to the making of an order for litigation funding that the lawyer has said they will not continue to act without costs being paid.

2. In terms of whether or not the Applicant has an arguable case, there are effectively two parts to that: 

   (a)Firstly, can the Applicant mount an arguable case that it is just and equitable that any order be made;  and,

   (b)Secondly, if so, can he mount an arguable case for interim orders to be made on the basis that such an order could be varied or reversed without having to invoke section 79A or the relevant provision in relation to de facto property. This really goes, in some way, to the second limb of consideration and the question of how an order is to be made.

3. As observed, on an interim basis, I cannot make findings of fact. There is much in dispute.  Although the relationship was short, on the Applicant’s evidence and even on the concessions made by the Respondent, he has made some contributions to the property by way of maintenance and some modest financial contributions to those properties as well as contributions to the household, to the parties’ lifestyle and to the Respondent’s children.  He is currently excluded from the Suburb H property, which is registered in the Applicant’s sole name.

4. In my view, I am satisfied that the Applicant has adduced evidence which is reasonably able, at this interim stage, to satisfy the Court that this is a case in which justice and equity would require the making of an order.  The evidence will no doubt be tested before the Court can finally determine that issue. I am not making any findings about that at this stage beyond stating that in light of the contributions and the circumstances to which the Applicant has deposed, that indicates, in my view, that he has an arguable case. In my view, his application is not weak, fanciful or misguided.

5. I have referred to the Applicant’s contributions. Some of them are accepted by the Respondent.  They include some modest financial contributions.  The include contributions by way of homemaker in providing care for the Respondent when she was unwell and assisting in the provision of care for one of her children.  They also include the maintenance and works undertaken on the various properties, although it is clear the extent of those contributions is in dispute, as is the weight to be given to them.

6. Taken as a whole, as I have already said, in my view, the Applicant is able to make out a reasonable case that he has made contributions to the property such that it would be appropriate that there may be an adjustment in his favour.  Again, the quantum of that adjustment cannot be determined at this early stage.

7. I also accept that the Applicant has a need for litigation funding and a part property distribution.  He has very limited income and very modest assets.  In those circumstances, it seems to me that in terms of the first limb, whether it is appropriate to exercise the power, I can be satisfied that it is.

8. That is not the end of the matter.  I must also consider the second limb, which is, if the power to make an interim property order is to be exercised, how should it be exercised.

9. I have to exercise the power within the parameters of section 90SM. The power to make a partial property order needs to be exercised conservatively, as there may be a great deal of imprecision regarding the pool, and disputes regarding the parties’ contributions and needs at an interim stage.

10. The Full Court authorities make it clear that any interim order for a partial property distribution must be capable of variation or reversal without resort to section 79A. In that regard, I refer to the Full Court decision of Zschokke & Zschokke (1996) 19 FLC 92-693 in which the Court says I must consider whether, in light of the uncertainties concerning the overall outcome of the Applicant’s property claim, the amount sought on a final basis will be large enough to permit the advance of moneys as sought on an interim basis. That is, care must be taken to ensure the quantum of a partial property distribution or premature distribution does not exceed the likely final property settlement that party would receive.

11. As already observed, this is the major issue facing the Court in this matter.  The Respondent’s submission is that the Court will ultimately be satisfied that orders not ought be made at all. However, as I have already said without making definitive findings, I am satisfied at this interim stage that the Applicant’s case for the making of an order has reasonable prospects of success.  If the Court is ultimately satisfied an order should be made, on the wife’s evidence, that adjustment would need to be, clearly, modest. 

12. The Applicant seeks $45,000 by way of partial property settlement and a further $80,000 by way of litigation funding.  His application for final orders seeks an adjustment to him of 30 percent.  It does seem to me, on the basis of the evidence he has adduced to date, that may be a somewhat ambitious application.  The sum of $45,000 he seeks at this stage as a partial property distribution represents less than one per cent of the current pool. 

13. I note the Respondent’s position is that there ought be no order at all.  I also note that she would say that he has had the benefit of the balance of his compensation moneys and has also transferred moneys overseas and spent moneys in overseas travel, all of which need to be taken into account.  I also note that if I am incorrect and if, ultimately, the Court determines that no order should be made, the moneys are unlikely to be able to be clawed back. 

14. I take all of those matters into account. In my view, on balance, this is a matter in which the interests of justice and equity require that the Court exercise its power under section 90SM and make a partial property order as sought by the Applicant in the sum of $45,000 to be paid to him. On the basis of all the evidence and taking into account all relevant matters, I am satisfied to the extent that I need to be at this interim stage that there is an arguable case for orders to be made under section 90SM and that there is an arguable case that the Applicant would be entitled to receive an adjustment of at least one per cent.

15. I am also satisfied that the Applicant has established that he is in need of funds.  His income is very limited.  He was unable to pay rent last year and was removed from his accommodation.  He lives with his sister, and this causes him difficulties with attending to his business and given the distance that he has to travel. 

16. The Respondent has control of the assets. Although she does not have an income, she is able to liquidate her B Street, Suburb C property.  She has indicated in her material that property is on the market.  I understand it is a commercial property.  It is currently untenanted and unencumbered.  She estimates the value of that property is about $590,000, although I also note she says the property values have been negatively impacted by COVID. It has been on the market, and she has yet to receive a reasonable offer to purchase.

17. I am also satisfied that there are circumstances that justify the making of a costs order under section 117 in the sum of $80,000. The usual rule in section 117(1) is, of course, that each party shall bear his or her own costs. That is subject to subsection (2), which provides that the Court can make such order as the Court considers just if the Court is of the opinion that there are circumstances that justify it doing so.

18. I have already referred to the financial circumstance of each of the parties. As I have already touched on, without funding, the Applicant cannot meet his litigation costs.  He is living in impecunious circumstances.  Whilst the Respondent has limited disposable income, she does own a number of assets with significant equity.  While she deposes to a shortfall between her income and expenditure and that she has had to borrow funds from family to fund proceedings, she does have significant assets and resources.  I have already referred to the Respondent’s proposed sale of the B Street, Suburb C property, which will provide her with funds and also provide a source of funding to the Applicant.

19. I need to also consider the strength of the Applicant’s case.  I have already touched on that. In my view, he has established an arguable case to be heard, having made various contributions to the pool, although it is quite clear that the Respondent’s contributions are overwhelming. I have set out the parties’ claims, their respective financial positions and the evidence adduced as to contributions and needs.  As best as I can at an interim stage, I have assessed the nature and quality of the Applicant’s property claim. I am satisfied, as I have already observed, that, in my view, his case is not weak or fanciful.

20. The total payment the Applicant seeks by way of a costs order and part property settlement totals a little over 2.6 per cent of the pool.  On the basis of all the evidence, I am satisfied to the extent I need to be for this interim hearing that the Applicant has made out a case for an adjustment of at least that in his favour.  These are, of course, not definitive findings, and there will need to be a testing of the evidence in due course.

21. Again, I do take into account the possibility that if his application fails, the Respondent is unlikely to be able to recoup any of the costs order. On balance, my determination is that an order under s117(2) is justified in all the circumstances to enable the Applicant to properly conduct these proceedings. The quantum sought, as I have already outlined, is reasonable, and I have regard to the solicitor’s affidavit in that regard.

22. The Respondent has indicated she has listed the B Street, Suburb C property for sale, and that is a source from which the payments to the Applicant can be made. My orders will provide the payment to the Applicant and his solicitors be made upon the settlement of the sale of that property.  In the event there is an issue with the sale, I give the parties liberty to apply.  As I am making an order for litigation funding, the Applicant can meet his share of the costs of the valuations of the properties, so that will be at the parties’ equal expense.

23. In relation to the dispute over the documents, the parties agreed that the Applicant is to authorise the solicitors Slater and Gordon to provide their file with respect to his back injuries sustained around December 2010.  The Respondent seeks the provision of documents, including letters of advice and memoranda from Counsel.  The Applicant seeks to have those excluded; otherwise, all the documents in the file are to be provided.

24. The Applicant says that the letters of advice and memos to counsel are not relevant to the matters before me. The Respondent says they absolutely are, as they will indicate what he told his lawyers and shed light on what he said about his injury and the impact that that has had on him and what limitations that has imposed on him.  She says that that is very relevant given part of the Respondent’s case is that the Applicant’s back injury prevented him from participating, in any meaningful sense, in the maintenance and improvement of the properties.

25. The test of whether evidence is relevant is a wide one.  I must consider whether the evidence could rationally affect the existence of a fact in issue or whether the document could add in some way or other to the relevant evidence in the case.  I note that the bar is not set very high in respect of the question of relevance in civil proceedings and particularly so in family law proceedings.

26. In my view, the letters of advice and memos to counsel may be relevant to an issue in dispute, namely, the impact the back injury had on the Applicant’s capacity to improve or maintain the properties, and for that reason I am including an order that they also be produced.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carter.

Associate:

Dated:       21 June 2021