Botha & Belmonte
[2024] FedCFamC1F 747
•24 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Botha & Belmonte [2024] FedCFamC1F 747
File number(s): ADC 963 of 2020 Judgment of: KARI J Date of judgment: 24 October 2024 Catchwords: FAMILY LAW – SUMMARY DISMISSAL – Where the Application in a Proceeding to join a third party was fundamentally flawed - Where the application is summarily dismissed of the Court’s own volition
FAMILY LAW - COSTS - Between solicitor and client - The Court has the power to make orders pursuant to r 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to prohibit legal representatives from charging for work done - Where the interlocutory proceedings have been incompetent - Both legal representatives are prohibited from charging for any work done in relation to the Application in a Proceeding and attendance at the hearing today
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.14, 8.16, 12.06, 12.15 Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 24 October 2024 Place: Adelaide Solicitor for the Applicant: Mr Nguyen of Son Nguyen Barrister & Solicitor Solicitor for the Respondent: Mr Campbell of Campbell Law ORDERS
ADC 963 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOTHA
Applicant
AND: MR BELMONTE
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
24 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 8 October 2024 be dismissed together with the Response to the Application in a Proceeding filed on 18 October 2024.
2.The legal representatives for the respondent (the applicant in the Application in a Proceeding) be prohibited from charging for any work done in relation to:
(a)The Application in a Proceeding filed on 8 October 2024;
(b)The Affidavit filed in support on 8 October 2024;
(c)Any work incurred in relation to service of the said application and Affidavit; and
(d)Today’s attendance.
3.In the event that the respondent (the applicant in relation to the Application in a Proceeding) has paid any funds in relation to those matters set out in order 2 herein, those funds are to be returned by the legal representatives.
4.The legal representatives for the applicant (the respondent to the Application in a Proceeding) be prohibited from charging for any work done in relation to:
(a)The Response filed on 18 October 2024;
(b)The Affidavit filed in support on 18 October 2024;
(c)Any work incurred in relation to service of the said Response and Affidavit; and
(d)Today’s attendance.
5.In the event that the applicant has received any funds from legal aid and/or paid any funds in relation to those matters set out in order 4 herein those funds are to be returned by the legal representative.
6.That the proceedings be listed for a further First Day hearing on a date to be fixed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Botha & Belmonte has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
These proceedings come before me today in relation to financial proceedings that are presently before the Court between parties to a de facto relationship. The application presently before the Court is an Application in a Proceeding filed on 8 October 2024 by the respondent in the substantive proceedings. That application seeks an order that the Court join a third party to the proceedings. The third party is named as Ms B and she is the mother of the applicant in the substantive proceedings.
The application is supported by an affidavit filed by the respondent also on 8 October 2024. That affidavit does not comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), and in particular rr 8.14 and 8.16. It does not comply with the Rules because in it, the applicant simply refers to and relies upon ten earlier affidavits filed by him in the proceedings. There is otherwise, no further evidence set out in the affidavit, and it is not clear to the Court the basis upon which the joinder application is sought.
Importantly, as I foreshadowed to the legal representative of the respondent, it is not clear in any of the material filed in relation to the joinder application, what relief, if any, is sought against the third party. Having raised those concerns with the legal representative for the respondent on at least four occasions during the course of submissions, ultimately the Court was informed by the respondent's legal representative that the purpose of the application is to “obtain evidence” from the third party that might assist in the proceedings. That evidence is said to include an understanding of whether the third party is alive or deceased and otherwise orders for her to give evidence and/or make discovery.
As I indicated during the course submissions to the legal representative for the respondent (the applicant in this application), that is not a proper purpose for the joinder of a third party. Significantly, relief must be sought against the third party. In circumstances where no such relief is foreshadowed in the material that has been filed and the legal representative has been unable to articulate any relief sought against the proposed third party, I propose to summarily dismiss the application in a proceeding.
I otherwise, unfortunately pause to record some general concerns about the manner in which these proceedings are being prosecuted by each of the parties.
The substantive proceedings were commenced by the applicant on 5 March 2020. At that juncture, the application was for property settlement.
Along the way, various issues have been raised in the proceedings, including matters pertaining to the parenting arrangements for the parties' child, X, born 2019.
Importantly, however there was a dispute about whether the parties were ever in a de facto relationship and accordingly this threshold issue needed to be determined before the Court was satisfied that it had jurisdiction to deal with the property settlement proceedings. For the first two years of the litigation, the parties were bound up in a dispute as to whether or not a de facto relationship existed between them. The matter was listed for trial in that regard on two separate occasions, with ultimately a declaration being made by consent on the first day of the second occasion the proceedings were listed for trial before Judge Dickson on 27 June 2022.
Since that time, the matter has progressed solely in relation to matters pertaining to property settlement between the parties. Significant resources have been devoted to these proceedings by the Court. There have been numerous Conciliation Conferences with a registrar of the Court, all to no avail in assisting the parties to resolve their dispute.
Along the way, the proceedings were transferred by her Honour Judge Dickson to the Federal Circuit and Family Court of Australia, Division 1. That occurred on 31 January 2023.
At various times since the transfer of the proceedings, and as a result of orders made by a Judicial Registrar and by me, attempts have been made to bring focus to the issues in dispute between these parties so that the matter can either resolve or meaningfully progress to a final hearing.
For reasons which are confounding and perplexing, the matter is still in a significant state of disarray. What is, however, known is that as a result of orders made by me, ultimately, a balance sheet was filed in the proceedings on 4 October 2024. The balance sheet indicates that it is very likely that there is either nothing, very little, or a negative asset pool available for division between these parties.
Unfortunately, the parties have not been able to see through the present dispute, and they are still continuing to incur legal expenses in fighting over what is, undoubtedly, a disproportionate fight, in the sense that they are spending more money on legal fees than that which they are arguing over. That circumstance is a travesty. It is unfortunately not assisted by the manner in which each of the parties' legal representatives have been prosecuting the proceedings on behalf of their clients. The flawed Application in a Proceeding to join a third party before the court today, in and of itself is emblematic of the poor fashion in which the proceedings are being prosecuted.
A Response to the Application in a Proceeding was filed on 18 October 2024. It does not identify the fundamental flaws which, undoubtedly, infect the Application in a Proceeding that was filed. Again, that is emblematic of the manner in which the proceedings are being litigated by the applicant and the legal representatives on her behalf.
Repeatedly, throughout the course of the proceedings and in the time that they have been case managed by me, I have implored the legal representatives of the parties to obtain advice from counsel as to the manner in which these proceedings are being prosecuted. I do so again.
The Court has the power to make orders that legal representatives not charge for the work that they have undertaken in proceedings.
I paused during the course of these reasons to invite submissions from the legal representatives of each of the parties as to whether the Court should make an order today, pursuant to r 12.15 of the Rules, prohibiting each of the legal representatives from charging for the work undertaken by each of them in relation to the Application in a Proceeding filed by the respondent to the substantive proceedings and the response thereto filed by the applicant in the substantive proceedings.
Unfortunately, neither of the legal representatives in the course of their submissions today have addressed the question posed to each of them as to whether such an order should be made.
Again, the inability to articulate submissions reflects poorly on each of the legal representatives and only heightens the Court's concerns as to the manner in which the proceedings have been prosecuted to date and indeed the manner in which the current interlocutory issue has been prosecuted.
Neither of the legal representatives have complied with the requirement pursuant to r 12.06 for the filing of a costs notice in relation to these interlocutory proceedings. As a result, it is difficult for the Court to understand what costs have actually been incurred by each of the parties.
The respondent in the substantive proceedings, through his legal representative, has indicated that the costs incurred in relation to the preparation of the application, the affidavit filed in support of the same, today's attendance and matters pertaining to service is somewhere in the region of two to three thousand dollars. The applicant in the substantive proceedings has not indicated the quantum of the costs incurred at her end. However, the Court has been informed during the hearing that the applicant has received approval for a grant of legal aid funding to file a response to the application and the associated documents.
Whatever the case may be these interlocutory proceedings have been incompetent at both parties’ end, and it is for that reason that I propose to additionally make an order that neither of the legal representatives charge for the work undertaken in relation to these interlocutory proceedings and that if indeed their respective client has paid any funds in relation to the same, that they be returned. That would include any funding advanced pursuant to a grant of legal aid.
The reason I propose to make those orders is that neither of these parties, in my view, should wear the costs of woefully incompetent proceedings such as these interlocutory proceedings.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 8 November 2024
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