BODILLY & HAND AND ANOR
[2018] FamCA 230
•17 April 2018
FAMILY COURT OF AUSTRALIA
| BODILLY & HAND AND ANOR | [2018] FamCA 230 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Privilege – where there is an issue about what the husband told his psychologist – psychologist wrote letters to medical practitioner – where husband claimed privilege because, it was said, he discussed his legal advice with the psychologist – where the substantive issue is spousal maintenance order discharge – where relevance about the husband’s mental health is deemed by the court not apparently relevant – where documents should not be released. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Barnes v Commission of Taxation (2007) 242 ALR 601 Hatton v The Attorney General of the Commonwealth of Australia and Commonwealth Development Bank of Australia [2000] FamCA 892; (2000) FLC 93-038 Hudson Timber and Hardware Limited v Chaudhary Group Pty Ltd [2002] FCA 832 Killorgan Investments Pty Ltd v Baycorp [2002] VSC 270 Mann v Carnell (1999) 201 CLR 1 Papadopoulis v Papadopoulos [2007] FamCA 1683 Proudman and Dayman (1941) 62 CLR 536 Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 248; [1989] 21 FCR 206 White v Tulloch (1995) FLC 92-640 |
| APPLICANT: | Ms Bodilly |
| RESPONDENT: | Mr Hand |
| 2ND RESPONDENT: | Ms K Hand |
| FILE NUMBER: | MLC | 10737 | of | 2009 |
| DATE DELIVERED: | 17 April 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 9 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr St John QC |
| SOLICITOR FOR THE APPLICANT: | Pearce Webster Dugdales |
| COUNSEL FOR THE RESPONDENT: | Mr Matta |
| SOLICITOR FOR THE RESPONDENT: | Sayer Jones |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Kaufman |
| SOLICITOR FOR THE 2ND RESPONDENT: | Lander & Rogers |
Orders
The wife’s application for release of the three letters of Dr U is dismissed.
All outstanding applications are otherwise adjourned to 10.00am on 7 June 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bodilly & Hand has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10737 of 2009
| Ms Bodilly |
Applicant
And
| Mr Hand |
Respondent
And
| Ms K Hand |
2nd Respondent
REASONS FOR JUDGMENT
The current proceedings between Ms Bodilly (“the wife”) and Mr Hand (“the husband”) concern spousal maintenance. The parties have long been divorced but I refer to them in their former status for my convenience only. They were married and arising from that, a spousal maintenance order was made in 2012 which became an obligation of the husband to pay $3323 per week. That sum has since increased.
Two relevant things have happened which underpin the extant proceedings. First, the husband’s employment came to an end and he ceased making maintenance payments in 2017 culminating in the wife bringing enforcement proceedings. Secondly, the wife became eligible under the National Disability Insurance Scheme and, it is asserted by the husband but said not to be clearly understood by the wife, she is to receive something in the vicinity of $2029 per week from that scheme. Both of those matters are said to underpin the husband’s application to discharge or vary the maintenance order.
An added complexity to this picture lies in the fact that the husband remarried a long time ago and when these proceedings began, he joined his now wife as a party saying that her interests were affected by the spousal maintenance order.
These reasons deal with a number of interlocutory issues to which I now turn sequentially.
Offence under Family Law Rules 2004
The wife brought an application against the husband that he be dealt with for the offence failing to comply with a notice to provide a financial statement.
To give context to this first issue, it is necessary to look at the relevant rules of court. They are found in Chapter 20 as follows:
20.10 Processes for obtaining financial information
(1) Before applying for an enforcement order, a payee may:
(a)give a payer a written notice requiring the payer to complete and serve a Financial Statement) within 14 days after receiving the notice; or
(b)by filing an Application in a Case and an affidavit that complies with rule 20.06, apply for an order, without notice to the respondent:
(i)requiring the payer to complete and file a Financial Statement; or
(ii)requiring the payer to disclose information or produce to the payee copies of documents relevant to the payer’s financial affairs.
…
20.11 Enforcement hearing
(1)A payee may, by filing an Application in a Case and an affidavit that complies with rule 20.06, require:
(a)the payer; or
(b)if the payer is a corporation—an officer of the corporation;
to attend an enforcement hearing.
Note:An application for an enforcement hearing will be listed for a hearing (not a case conference) within 28 days after the application is filed (see rule 5.05).
(3)The payee may require the payer to produce documents at the enforcement hearing that are in the payer’s possession or control and relevant to the enforcement application by serving with the application mentioned in subrule (1):
(a)a list of the documents required; and
(b)a written notice requiring that the documents be produced.
…
20.12Obligations of payer
(1)A payer served with the documents mentioned in rule 20.11 must:
(a)attend the enforcement hearing:
(i)to answer questions; and
(ii)to produce any documents required; and
(b)at least 7 days before the enforcement hearing, serve on the payee a Financial Statement setting out the payer’s financial circumstances.
…
It is not disputed that these rules are relevant here but importantly, Rule 20.14 reads:
20.14Failure concerning Financial Statement or enforcement hearing
(1)A person commits an offence if the person does not:
(a)comply with a notice under paragraph 20.10(1)(a) requiring the person to complete and serve a Financial Statement;
…
(c)if the person is served with an enforcement hearing application:
(i)comply with subparagraph 20.12(1)(a)(ii) and paragraph 20.12(1)(b); and
(ii)attend the enforcement hearing in accordance with the application or an order; or
(d) …
Penalty: 50 penalty units.
(2)An offence against subrule (1) is an offence of strict liability.
Note: A court may issue a warrant for the arrest of a payer if it is satisfied that the payer has received an enforcement hearing application and did not attend the enforcement hearing (see rule 21.16).
The following sequence of events briefly sets out what happened and is not controversial.
The wife’s solicitor served on the husband a notice requiring him to file documents. That notice was served about 9 July 2017 and therefore the obligation under the rules had to be completed by 23 July 2017. The husband did not comply. He was then served with an enforcement application on 16 August 2017 returnable on 30 August 2017 and therefore the due date for the filing of the relevant material was 23 August 2017. The husband filed a financial statement on 25 August 2017 but he acknowledged that it was unsatisfactory or incomplete and ultimately that was remedied on 18 September 2018 below. There are more expansive explanations for what happened.
The importance of this financial information was said by senior counsel for the wife to be that its very purpose is to enable the wife to consider whether or not to issue enforcement proceedings bearing in mind that there was an extant obligation under a court order. It is also of significance that the husband was, by this time in 2017, in arrears of payment and in respect of which, the wife was entirely financially dependent.
What must also be noticed is that Rule 20.14(2) by its reference to an offence of “strict liability” leaves little room for failure to comply with the time frames. However, neither concept of “strict liability” or “offence” is defined in the dictionary to the court’s rules.
The logic behind the relevant rule can be seen in the overall philosophy of the rules. At Rule 1.04 we see:
1.04Main purpose of Rules
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
Note:Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
At Rules 1.06 and 1.07 we see:
1.06Promoting the main purpose
The court must apply these Rules to promote the main purpose, and actively manage each case by:
(a)encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;
(b)having regard to unresolved risks or other concerns about the welfare of a child involved;
(c)identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;
(d)at an early stage, identifying and matching types of cases to the most appropriate case management procedure;
(e)setting realistic timetables, and monitoring and controlling the progress of each case;
(f)ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;
(g)considering whether the likely benefits of taking a step justify the cost of that step;
(h)dealing with as many aspects of the case as possible on the same occasion;
(i)minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and
(j)having regard to any barriers to a party’s understanding of anything relevant to the case.
1.07Achieving the main purpose
To achieve the main purpose, the court applies these Rules in a way that:
(a)deals with each case fairly, justly and in a timely manner;
(b)encourages parties to negotiate a settlement, if appropriate;
(c)is proportionate to the issues in a case and their complexity, and the likely costs of the case;
(d)promotes the saving of costs;
(e)gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and
(f)promotes family relationships after resolution of the dispute, where possible.
At Rule 1.08(1)(b) we see the responsibility falls on the party to comply with the duty of disclosure. At Rule 13.01, unlike Rule 20, the court requires a party to give full and frank disclosure in a “timely manner” and then Rule 13.05 makes reference to financial statements. These of course relate primarily to proceedings that are just underway rather than what applies here which was an extant obligation under an order. The relevant rules make clear that a change of circumstances requires the filing of a new statement. The importance of all of this indicates that the obligation is high, if not absolute, in respect of disclosure.
The wife’s initiating application filed on 15 August 2017 sought that the husband be “dealt with” under Rule 20.14(1)(b) but that rule relates to failing to comply with an order. No point was taken by the husband but the issue relates to his non-compliance with the requirement of the wife’s notice; that is, Rule 20.10(1)(a).
It is also of some relevance that the initiating application filed by the wife included other relief sought so this was not just an enforcement application per se as provided under the rules. The form itself gave the husband time to comply by filing a response all of which confuses the picture a little more. The husband simply sought a dismissal.
This case has a long history over many years and it remains to be seen whether the wife’s medical condition is still controversial. She suffers from motor neurone disease and lives in Sydney. The previous proceedings culminating in orders in 2012 were heard in Sydney and were highly and hotly contested. The trial judge was highly critical of the approach taken by the husband. He was then, and remains, a public figure earning an income substantially higher than most in the community. The wife is said to be unable to communicate easily and that requires a lawyer from Melbourne to attend upon her in Sydney to obtain instructions which, it is said, she can give.
The wife’s evidence therefore was given by her solicitor. He said that the last maintenance payment was made by the husband on 15 May 2017 and by the middle of August, the arrears had amounted to $45,000. No-one then knew of the residential address of the husband and his former solicitors indicated they had not had communication from him and were not acting for him. By June, a solicitor advised that he was acting for the husband and that solicitor (but not this present one) was then sent a letter demanding that all arrears of maintenance be discharged. With that letter was a notice prepared under Rule 20.10(1)(a) of the rules. Eight days later, the husband’s present solicitor contacted the wife’s solicitor indicating that they were acting and requested additional time to complete the relevant financial statement. That is significant and relevant here because it will be apparent that notwithstanding the husband being in arrears, there was at least a preparedness on the part of the husband to engage in the process.
It is the husband’s evidence that sheds some light on this issue. He said that his finances were complex and that there had been intermingling of finances with his present wife of 17 years duration. He had recently had a significant change in his income which impacted on his family’s finances. He then said:
I wished to present the most complete and accurate picture of my finances that I could.
There is some substance to that level of caution because on even a cursory reading of the judgment of the trial judge in 2012, the asserted complexity was apparent. The husband said that he had not only engaged solicitors to assist in the preparation of the financial statement but also engaged an accounting firm to review the information he had presented and to confirm its accuracy. The accounting firm had not completed the analysis of the husband’s expenditure by the time the husband’s affidavit was filed on 25 August 2017.
This particular explanation must also be seen in the context that the husband had unilaterally ceased the payments in May 2017 and had not taken steps to discharge his obligations under the Act. He had legal advice around that period but it was left to the wife to initiate the enforcement proceedings. Furthermore, the husband did not apply for an extension of time under the rules as he could have. That said, having regard to his statement that he was dealing with the financial statement issue, the pursuit of the husband for an offence rather than just enforcement where he had lawyers engaged is perplexing. To be clear, it is one thing for the husband to unilaterally cease making payments upon which the wife was dependent and for him not to have brought proceedings to clarify his obligation but it is quite another for the wife to bring an action for an offence, the benefit to her of which, must be seen as modest in terms of any penalty.
One of the difficulties in how to approach this prosecution lies in the reference in the rule to strict liability. The obvious question is what does it mean.
As long ago as 1941, Dixon J (as the Chief Justice then was) said in Proudman and Dayman (1941) 62 CLR 536:
There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether or motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also.
The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so belied. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt.
It seems to me that there is a distinction between what is described in the rules as strict liability and absolute liability. In the latter, it would not matter what the explanation was if the obligation was absolute once the notice containing the requirements of the obligation, was served. In the former however, there must be room for an explanation but that explanation must be directed towards the matters to which Dixon J referred. In either case, the rules provide that opportunity because the court has power to extend time.
Counsel for the husband submitted that the court could use Rule 1.14 to extend time nunc pro tunc but that has to be cautiously considered because the husband was represented at the relevant time and the solicitor involved had engaged with the solicitor for the wife. It seems to me that the extension of time provision should more prudently have been exercised in 2017. The important issue is that the husband and his advisors (Rule 1.08(2)) ought to have complied, or at least endeavoured to obtain an extension of time, either by agreement or by an urgent application. It must be remembered that even from a non-family law perspective, the husband as the debtor, had an obligation to chase his creditor bearing in mind that he was the one who had the obligation by order for the payment of maintenance. That said, the disadvantage or prejudice to the wife has now been ameliorated by the payment of the arrears.
Of further consideration is the fact that on the return date of 30 August 2017, and with both parties represented by counsel, the following orders were made:
1.That on or before 8 September 2017 the Wife’s solicitor advise the Husband’s solicitors of all additional documents they require for the purpose of compliance by the Husband with the “Notice” dated 16 August 2017 (for provision of documents) being annexure “B” to the Affidavit of [Mr CD] sworn 19 August 2017 and it is noted that the Husband has provided two arch lever folders to comply with the Notice this day.
2.That on or before 15 September 2017 the Husband provide all documents so requested not being subject of proper objection to produce.
…
6.That the Husband be at liberty (if so advised) to file an updated/amended Financial Statement on or before 15 September 2017.
Each of those orders indicates that at least by the end of the month of August which was eight weeks after the original notice, the parties had agreed upon a course to sort out the financial dispute underpinning the husband’s argument that he had an incapacity to pay. Thus, accepting that the husband has not provided an adequate defence even on the lower standard of strict liability in the Proudman v Damon sense (see the second quoted paragraph from Dixon J), the only issue is penalty.
The upper end of seriousness relating to penalty can be seen in the rules by reference to the 50 penalty unit. I do not find the husband has been deliberately unresponsive or obfuscating in relation to matters required of him concerning the specific court process under consideration and I have therefore concluded that this is the first time that a breach of this nature has occurred. I accept that the wife went without her entitlement and it would seem that the Senior Registrar decided that that should not have happened but nothing I have heard indicates that there has been a repeat of that problem. The fact that the husband has been the subject of strident criticism by senior counsel for the wife about the way he is conducting the litigation, is not to the point. This is a prosecution for an offence under the rules.
No guidance is given in the rules as to what penalty is appropriate. No authority on this rule was put to me, nor could I find any, which indicates that this type of prosecution has occurred before.
Sentencing is generally accepted to be about deterrence and retribution. I am satisfied that the deterrence here is not necessary having regard to the husband’s explanation as to why the problem occurred in the first place. There is little point in general deterrence because much stronger provisions than these penalties could be applied such as garnishees and the use of s 112AP of the Act. In addition, to the extent that compliance with disclosure is important generally, the rules already provide for that.
In my view, the retribution issue could only arise if there was a significant flouting of the court’s rules as distinct from either a negligent approach or one that was careless. I am satisfied that that did not happen here. Accordingly, the appropriate penalty is that the application against the husband is dismissed without monetary penalty.
Objection to subpoena
In October 2017, the wife’s solicitor sought and obtained, a subpoena issued by the registrar to a psychologist, Dr U who was said to be treating the husband. The husband raised objection initially on the ground of privilege and then by an amended objection, included the ground of relevance. All but three documents in Dr U’s file were not in dispute. Of the three that were, they were described by the husband as:
Letter updating on patient progress, including reference to discussions between (the husband) and his legal advisors for the dominant purpose of obtaining legal advice.
In his affidavit filed 6 April 2018, the husband said the documents were produced for both he and his current wife “receiving therapeutic counselling from Dr U”.
Dr U confirmed by an affidavit filed on 9 April 2018 that he had written the impugned letters but he had not discussed their contents with the husband before he sent them to the husband’s general medical practitioner.
Counsel for the husband submitted that of the two grounds pleaded, the main one was relevance but he did not abandon the other. It is convenient to deal with this issue in that order.
Relevance
Relevance is a vague term; relevance to what? And when? In White v Tulloch (1995) FLC 92-640 the Full Court referred to the test to be applied as whether or not the documents had a sufficient apparent connection to justify their production. It is of note that the Full Court of the Federal Court of Australia in Hudson Timber and Hardware Limited v Chaudhary Group Pty Ltd [2002] FCA 832 observed that relevance of documents was not limited to documents “directly admissible in themselves” in proof of an issue raised in the proceedings.
Without pleadings, the pursuit of relevance might be seen as a bit more difficult than in other courts. This court has to fall back on the affidavit material relied upon and what is claimed in the relief sought (see Hatton v The Attorney General of the Commonwealth of Australia and Commonwealth Development Bank of Australia [2000] FamCA 892; (2000) FLC 93-038).
In Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 248; [1989] 21 FCR 206 Beamont J described relevance as something arising where a document “could possibly throw light on the issues in the main case”. That raised the obvious question of the timing of the pursuit and production of the documents. The documents may shed some light on an issue and throw light on what the case is ultimately about but may not be admissible in evidence because they cannot satisfy ss 55 and 56 of the Evidence Act 1995 (Cth). The Supreme Court of Victoria has adopted a view that the degree of relevance is not high and the issue is whether there is a legitimate forensic purpose involved (see Killorgan Investments Pty Ltd v Baycorp [2002] VSC 270).
The onus of establishing relevance lies with the person seeking the production (Papadopoulis v Papadopoulos [2007] FamCA 1683). Ultimately, the Full Court of this court in Hatton (supra) held that relying on “apparent relevance” as the test was not an error in deciding whether or not to set aside a subpoena. That is the focus here rather than the admissibility of what might be contained in the document.
The discretionary exercise here involves the determination of apparent relevance rather than privilege such as to throw light on the issues in the case. The issuing of the subpoena cannot be a substitute for discovery any more than it can be what was metaphorically described as “fishing”. “Fishing” is an endeavour to make a case where one is not immediately apparent. Both of those matters assist in determining relevance.
Senior counsel for the wife submitted that the husband had put his mental health in issue both by referring (as late as the day before this hearing) to the impact of these proceedings on his health and that of his wife. That is hardly surprising but the apparent issue in the main case from his perspective, is whether he is capable of paying the spousal maintenance if the wife establishes her case. The focus of that inquiry will be upon his earnings rather than upon his state of health and, unless the two issues are directly connected, it is the former rather than the latter that is relevant. The relevance of the psychologist’s view as expressed in his affidavit and the same assertion of the husband is that these letters to the general medical practitioner followed confidential counselling of the husband with his present wife.
In my view, there is nothing in this evidence to show there is apparent relevance in the health issue that would shed light on the husband’s capability to pay maintenance. In other words, if it becomes clear that there is a connection such as to shed some light on the substantive issue in the proceedings, this ruling should be revisited.
In my view therefore, the evidence does not support a conclusion that there is any relevance in the documents. I make that finding despite the affidavit and the objection schedule which I found confusing. The initial response of the husband was that Dr U had been privy to information or advice provided to the husband but just how that could be so remains unclear. When the case was argued, the issue from the husband’s perspective was about relevance. I raised the subject of whether or not it was appropriate to examine the documents to see whether there was a basis for the asserted legal professional privilege but senior counsel for the wife did not seem particularly interested and I took the matter no further.
Privilege
I turn then to the question of privilege in case I am wrong about the question of relevance. Senior counsel for the wife submitted that the test was that of the dominant purpose. It is hard to know what the purpose was here because no details were provided other than the scant reference to the fact that Dr U may have been involved in discussion which included something to do with legal advice. Importantly, the letter was not known to the husband and Dr U was providing details of treatment to a general medical practitioner. It is hard therefore to see how any of that satisfies the dominant purpose test because I have no idea how the advice, presumably discussed with Dr U arose. If that level of details is absent, the document cannot be privileged but then, what is its relevance? Here, the relevance test is more important. In Barnes v Commission of Taxation (2007) 242 ALR 601 the Full Court of the Federal Court referred to the fact that the authorities emphasised the need for focussed and specific evidence in order to ground a claim for legal professional privilege. That included the court having evidence of the thought processes behind, or the nature and purpose of advice, being sought in respect of, each particular document. From the husband’s perspective, that is missing but again, I return to the issue of relevance.
Senior counsel for the wife submitted that the husband had waived the privilege by telling the psychologist (if that is what he did) of the advice that he had sought or been given, through his lawyers. I could not conclude that there was a waiver without first establishing that there was a communication to the psychologist. I am completely at a loss to understand what was said and the only information upon which I can address the waiver point is the schedule in which the husband asserts that there was such a communication. To infer there was such a communication between the husband and the psychologist, for the purposes of s 118 of the Evidence Act, the husband has to take the objection. He seems to have done so.
To be an express waiver, the husband had to knowingly and voluntarily act inconsistently with the protection of the privilege and he must know that he was conveying that legal advice to the third party. Having regard to the fact that Dr U seems to suggest that these letters arose out of confidential counselling as between the husband and his new wife, it is confusing and perplexing as to exactly what occurred. I am not prepared to find that there was an express waiver here.
Where the treatment consultations were apparently confidential and the husband did not know what Dr U was writing and indeed, whether Dr U’s interpretation of the apparent advice was correct. As the High Court has observed, question of waiver are matters of fact and degree (Mann v Carnell (1999) 201 CLR 1). If the matter has to be viewed through the actions of the husband and whether or not he was acting inconsistently with his right to keep the advice (if that is what it was) confidential, I am not sure what he did nor could I find the facts asserted fit within s 122(3) of the Evidence Act. As a lot of documents of Dr U have been released, the context of the three impugned letters is presumably apparent. None of that evidence is before me. Accordingly, I could not say the husband is “taken to have” acted inconsistently with his right.
In the event, the issue of relevance is far more significant for the reasons I have already outlined. In my view, there is no basis to release the three letters of Dr U if, as I have accepted, they were advice as to treatment for mental health issues.
Other matters
The trial date
This case was set down for hearing on 7 June 2018 but each party still disputes how the evidence of both is to be given. From the wife’s perspective, she asserts that she cannot give evidence other than by affidavit and cannot be subjected to cross-examination because of her disability. She relies upon a neuropsychologist to support that conclusion and it would appear that Loughnan J in 2012 accepted that she was not to be cross-examined. That does not mean that the evidence cannot be tested. The appropriate course of action would be to permit a series of interrogatories but that would delay the trial date. Both parties indicated an interest in interrogating and in my view, they should, even if it does slow down the process because of the difficulties of the wife. To be clear however, whilst the answers to those questions will be evidence in the proceedings, that alone would not justify not permitting cross-examination. In my view, as there is now to be another interlocutory hearing, I will hear any submission on the question of how cross-examination is to proceed if at all.
A further interlocutory hearing
On 9 April 2018, the husband sought leave to file an application in a case to immediately vary the extant spousal maintenance order because of the letter of the NDIS indicating that the wife is entitled to benefits. I have already addressed that. At the time I indicated that natural justice required the wife to have an opportunity not only to give instructions but also to respond if she so desired. For that purpose, I shall use 7 June as the relevant return date for that issue. It can also be used for the purposes of any procedural matters associated with the final hearing.
The final hearing
Both parties seem to request that I retain the matter but I have warned them of the prospect that that may be difficult having regard to my foreshadowed absence during the months ahead. I will reconsider that position at the June interlocutory hearing.
The role of Ms Hand
When the hearing began, solicitor for Ms Hand indicated that she wished to be excused from the proceedings as a party but on condition she have the right to make submissions. No authority was put to me to indicate how that could be practically done let alone whether there is a legal basis when she would otherwise have no standing. Having regard to my concern about whether that could be done, the solicitor obtained instructions to indicate that his client intended to continue to be a party to the proceedings. There is little further I need to say about that at this stage.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 April 2018.
Associate:
Date: 17 April 2018
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