Donne and Kamau and Anor
[2019] FCCA 3269
•14 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
DONNE & KAMAU & ANOR [2019] FCCA 3269
Catchwords:
FAMILY LAW – Property – interim – part property settlement in favour of wife – abridgment of time for service – husband convicted of breaching intervention orders – whether it is just and equitable to make interim property orders – in the interests of justice to make interim property settlement.
Legislation:
Family Law Act 1975 (Cth), ss.11F, 65DA, 75, 79, 80, 102NA
Federal Circuit Court Rules 2001 rr.1.06, 6.04, 6.19
Cases cited:
Bevan & Bevan [2013] FamCAFC 116
Harris & Harris (1993) FLC 92-378
Kennon and Kennon [1997] FamCA 27
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (2011) FLC 93-466
Applicant: MS DONNE
First Respondent: MR KAMAU
Second Respondent: MR S KAMAU
File Number: MLC 7223 of 2014
Judgment of: Judge C. E. Kirton QC
Hearing date: 6 November 2019
Date of Last Submission: 6 November 2019
Delivered at: Melbourne
Delivered on: 14 November 2019 REPRESENTATION
Counsel for the Applicant: Ms Tulloch
Solicitors for the Applicant: Rigoni Lawyers
The First Respondent appeared in person
The Second Respondent appeared in person ORDERS
(1)The matter be adjourned for final hearing in the Federal Circuit Court of Australia on 4 May 2020 at 10:00 am, with an estimated hearing time of one day (Final Hearing).
(2)Service of the Application in a Case filed by the Applicant (Wife) on 6 November 2019 (Application in a Case) on the First Respondent (Husband) and the Second Respondent pursuant to rule 6.19(a) of the Federal Circuit Court Rules 2001 (Cth) be dispensed with.
(3)Pursuant to rule 6.04(b) of the Federal Circuit Court Rules 2001 (Cth) the Husband be deemed to have been served with the Application in a Case on 4 November 2019.
(4)Pursuant to rule 6.04(b) and (c) of the Federal Circuit Court Rules 2001 (Cth) the Second Respondent be deemed to have been served with the Application in a Case on 4 November 2019.
(5)The sum of $120,000 be forthwith paid to the Wife by way of a part property settlement from the money held in the trust account of Rigoni Lawyers on behalf of the Wife and the Husband.
(6)The Husband file and serve a Response, Financial Statement and affidavit on or before 4.00 pm 13 December 2019.
(7)In the event that the Husband fails to comply with Order 6 herein or alternatively Orders 10(b) or 12 of the Orders made on 29 November 2018, the Wife has leave to apply to proceed with the Final Hearing as against the Husband on an undefended basis.
(8)In the event that the Second Respondent fails to comply with Orders 10(b) or 12 of the Orders made on 29 November 2018, the Wife has leave to apply to proceed with the Final Hearing as against the Second Respondent on an undefended basis.
(9)Pursuant to section 102NA(1)(c)(i) and (iv) of the Family Law Act 1975 (Cth) (Act), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Husband and the Second Respondent under the cross-examination scheme.
(10)The Wife’s costs of and incidental to the Application in the Case and the appearance at the adjourned final hearing on 6 November 2019 be reserved.
AND THE COURT NOTES THAT:
A.At the hearing on 6 November 2019 the Court informed the Husband and the Second Respondent:
(i)That they will not be permitted to personally cross-examine the Wife and that any cross-examination of the Wife on their behalf must be undertaken by a legal practitioner.
(ii)That they may make an application to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for legal representation.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 Annexure and these particulars are included in these orders.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Donne & Kamau & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNEMLC 7223 of 2014
MS DONNE Applicant
and
MR KAMAU First Respondent
and
MR S KAMAU Second Respondent
REASONS FOR JUDGMENT
Introduction
1.These are property and parenting proceedings between the applicant (Wife) and the respondent (Husband). The parties first separated in June 2014 and the Wife issued proceedings in this Court on 15 August 2014. The parties then reconciled in late 2014 and subsequently discontinued the original proceeding. The parties separated again in 2016, reconciled and then finally separated in March 2018.
2.The parties’ relationship has been marked by significant family violence perpetrated by the Husband against the Wife. The Husband has been incarcerated for breaching intervention orders.
3.The Wife now seeks interim orders for a partial property distribution to pay to rehouse herself and also for litigation funding.
Issues to be Determined
4.The issue that falls to be determined in this interim decision is whether the sum of $120,000 should be paid to the Wife by way of a part property settlement from the money held in the trust account of her solicitors, Rigoni Lawyers.
Synopsis
5.I have determined that the sum of $120,000 shall forthwith be paid to the Wife by way of a part property settlement from the money held in the trust account of Rigoni Lawyers.
Background
6.The Wife was born in Country A on … 1981 and is aged 38.
7.The Husband was born in Country A on … 1975 and is aged 44.
8.The Second Respondent was born in Country A on … 1943 and is aged 76. He is the Father of the Husband.
9.The Husband and Wife met in Country A and were engaged on … 1998. They were married in a traditional religious ceremony in Country A on … 1999 and were then married in a civil ceremony in Country A on … 2000. The parties commenced cohabitation on 10 January 2001 when the Wife migrated to Australia[1].
[1] Affidavit of the Wife, filed 4 November 2019, at [8].
10.[X] was born on … 2002 and is aged 17. [Y] was born on … 2006 and is aged 13.
11.The Wife first separated from the Husband on … 2014. The Wife deposed that the Husband had severely beaten her that day and that she had “[…] bruises on my arms, face and all over my body”[2]. The Wife also deposed that during the relationship the Husband and both the Second Respondent and his wife had beaten her on a “regular basis”. The Wife deposed that she had been beaten with shoes, belts and had her nose broken[3].
[2] Affidavit of the Wife, filed 15.8.14, at [14].
[3] Affidavit of the Wife, filed 15.8.14, at [10].
12.On 25 June 2014 an Interim Intervention Order was made at Court C at Suburb B on the application of the Victoria Police, naming the Wife and the Children as the affected family members and the Husband as the Respondent[4].
[4] Affidavit of the Wife, filed 15.8.14, Annexure “D1”.
13.On 11 August 2014 and 27 August 2014 further Interim Intervention Orders were made at Court C at Suburb B on the application of the Victoria Police, naming the Wife and the Children as the affected family members and the Husband as the Respondent[5].
[5] Amended Initiating Application, filed 14.10.14.
14.On 1 September 2014 a Final Intervention Order was made at Court C at Suburb B on the application of the Victoria Police naming the Wife and the Children as the affected family members and the Husband as the Respondent[6]. The Final Intervention Order expired on 11 August 2015.
[6] Affidavit, of the Husband, filed 8.10.14, Exhibit “K-1”.
15.The parties reconciled in late 2014.
16.The parties separated again in 2016, however the Wife did not issue proceedings in this Court on that occasion. The parties then reconciled[7].
[7] Affidavit of the Wife, filed 4.11.19, at [19].
17.The parties finally separated in 2 March 2018[8].
[8] Affidavit of the Wife, filed 2.8.18, at [11].
18.On 22 March 2018 an Interim Intervention Order was made at Court C at Suburb B on the application of the Victoria Police, naming the Wife as the affected family member and the Husband as the Respondent[9]. On 16 May 2018 a Final Intervention Order was made at Court C at Suburb B on the application of the Victoria Police naming the Wife as the affected family member and the Husband as the Respondent[10]. The Final Intervention order was due to expire on 15 May 2019 unless extended.
[9] Affidavit of the Wife, filed 21 August 2018, at [30] and Annexure “D-1”.
[10] Affidavit of the Wife, filed 21 August 2018, at [30] and Annexure “D-1”.
19.In 2018 or 2019 criminal charges were laid against the Husband for consistent breaches of intervention orders. In mid-2019 the Husband served a period of incarceration. Whilst the Husband was incarcerated the Wife left Melbourne without the children to live elsewhere as she feared for her life[11].
[11] Affidavit of the Wife, filed 4 November 2019, at [28] and [31].
Procedural History
20.The Wife initially commenced proceedings in this Court on 15 August 2014 seeking interim and final parenting and property orders (First Proceeding). The Wife filed an Initiating Application and an Affidavit[12]. The Wife was represented by solicitors.
[12] Affidavit of the Wife, affirmed 29.7.14, filed 15.8.14.
21.The Husband filed a Response, an Affidavit and a Financial Statement on 8 October 2014. The Father was also represented by solicitors.
22.On 14 October 2014 the Wife filed an Amended Initiating Application for interim and final parenting and property orders. The Wife sought interim parenting orders that the children live with her and spend no time with the Husband until the Husband attended upon a psychiatrist for a psychiatric assessment and that he undertake a Men’s Behavioural Change Course.
23.On 10 October 2014 the Wife filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence (Notice of Child Abuse). The Notice of Child Abuse alleged that the Husband committed significant domestic violence against the Wife and the children throughout the marriage. It also stated that the Wife had reported to the Victorian Police 10 breaches of the intervention orders by the Husband and that the Husband had been detained by the police on three separate occasions, including one period of detention for 10 days[13].
[13] Notice of Child Abuse, at [6]
24.On 14 October 2014 the Court made interim orders that may be summarised as follows:
a)The children live with the Wife.
b)The children’s time and communication with the Husband be suspended.
c)The Husband and/or his agents be restrained from attending on the curtilage of the children’s school.
d)The Wife provide the children’s passports to her solicitors pending further order.
e)The Husband attend as directed by his solicitors for a psychiatric assessment and that such assessment be provided on affidavit as soon as practicable.
f)Pursuant to s.68L of the Family Law Act 1975 (Cth) (Act) that an Independent Children’s Lawyer be appointed to represent the children.
g)Pursuant to s.11F of the Act the parties attend a Child Inclusive Conference on 17 October 2014.
h)The parties be restrained from removing the children from Australia without the written consent of the other party or by order of the Court.
i)The children be placed on the Airport Watch List for a period of 12 months.
j)The parties attend a Conciliation Conference on 10 February 2015.
25.On 13 October 2014 the Wife’s solicitors filed a Notice of Withdrawal as Lawyer.
26.On 17 October 2014 the parties and the children attended a Child Inclusive Conference and Memorandum was prepared for the Court, dated 27 October 2014 (Section 11F Memorandum). The parties were interviewed separately. The Section 11F Memorandum records:
[The Father] acknowledged being convicted of previously breaching the Interim Intervention Order, and he is believed to be currently on a suspended sentence for two years. He is also reportedly attending Court in November 2014 for an additional breach to the Intervention Order. If found guilty, there is a likelihood of [the Father] spending some time in prison[14].
[The Father] appeared to either minimise or deny his behaviour in relation to the alleged breaches thus far. He denied any history of family violence, save for the incident in June 2014 that precipitated the separation, police involvement, and Intervention Order[15].
[The Husband] appeared to lack any insight into the impact of his behaviour on either the mother or the children, and there may be a higher probability of potential risk of reoffending as a result[16].
[14] Section 11F Memorandum, 1-2.
[15] Section 11F Memorandum, 2.
[16] Section 11F Memorandum, 2.
27.The Section 11F Memorandum recorded that there was a current intervention order against the Second Respondent and his Wife protecting the Wife and the Children.
28.The Section 11F Memorandum recommendations included:
a)The Children not spend any time with the Husband until completion of the Child Protection Investigation.
b)Any spend time arrangements between the Children and the Husband may need to be subsequently supervised with the Husband until further assessment of the Husband’s mental health and his capacity to acknowledge or manage his behaviour.
c)The Children not spend any time with the extended paternal family pending further assessment of risk.
29.On 31 October 2014 the Independent Children’s Lawyer filed a Notice of Address for Service.
30.On 27 November 2014 the Husband’s solicitors filed a Notice of Intention to Withdraw as Lawyer.
31.On 12 December 2014 the Wife, acting on her own behalf filed a Notice of Discontinuance seeking to discontinue the First Proceeding. The same day the Husband, acting on his own behalf filed a Notice of Discontinuance also seeking to discontinue the First Proceeding.
32.On 17 December 2014 the Court ordered that all extant applications be dismissed and the appointment of the Independent Children’s Lawyer be discharged.
33.On 5 January 2015 the parties jointly applied for consent orders and indicated to the Court that they had reconciled[17]. On 6 January 2015 the Court made Orders by consent that the children be removed from the Airport Watch List and be permitted to travel out of Australia.
[17] Application for Consent Orders, filed 5.1.15.
34.The Wife filed an Initiating Application on 21 August 2018 (Initiating Application) seeking interim and final parenting and property orders (Second Proceeding). On 21 August 2018 the Wife also filed an Affidavit[18] (Wife’s August 2018 Affidavit), a Notice of Risk, and a Financial Statement.
[18] Affidavit of the Wife, affirmed by the Wife on 23.7.18, filed 21.8.18.
35.The Notice of Risk alleged that the Husband committed significant domestic violence against the Wife and the Children throughout the marriage, including threats to kill. The Notice of Risk recorded that the Husband had previously been in custody and was presently in custody for breaching an intervention order protecting the Wife[19]. The Notice of Risk also alleged that the Second Respondent and his wife had “[…] encouraged and participated in the violence”.
[19] Affidavit of the Wife, filed 21.8.19, at [42] and Notice of Risk, filed 21.8.18.
36.The Husband was personally served with the Initiating Application, the Wife’s August 2018 Affidavit, the Wife’s Financial Statement and the Notice of Risk on 10 October 2018[20].
[20] Affidavit of Service, Stephen Freer, affirmed 8.11.18, filed 13.11.18.
37.The Second Proceeding first came before the Court on 29 November 2018. The Wife was represented by her Solicitor and there was no appearance by the Husband. The Court made Orders that included:
a)The property at Property D be sold and the balance of the proceeds beheld on trust by the Wife’s solicitors for the parties pending further order or the written agreement of the parties.
b)The Second Proceeding be listed for final hearing on 31 May 2019 with an estimate of 1 day. Trial directions were also made.
38.The parties were notified that the final hearing of the proceeding was to be adjourned from 31 May 2019 to 6 November 2019 due to Court availability. On 23 May 2019 the Wife filed an Application in a Case (Wife’s First Application in a Case) and an Affidavit[21] in support seeking orders that:
a)The Wife direct her solicitors to forthwith pay to her 50% of the net proceeds of sale of Property D by way of part property settlement.
b)The parties each forthwith do all things necessary to enable the Wife to have the house at Property E and the land at Suburb F valued by G Property Valuers.
[21] Affidavit of the Wife, affirmed on 16.5.19, filed 23.5.19.
39.The Wife’s First Application in a Case was made returnable on 30 September 2019.
40.On 23 July 2019 the Second Respondent filed an Application in a Case seeking orders that:
a)He be joined as a party to the Second Proceeding; and
b)The Applicant be restrained from dealing with the proceeds of the sale of Property D until the Second Respondent had the opportunity to respond to the Initiating Application.
41.A Notice of Address for Service was filed on 22 July 2019, indicating that Lake Street Lawyers acted on behalf of the Second Respondent. On 30 July 2019 a Notice of Address for Service was filed, indicating that Klonis Kirby and Co acted on behalf of the Husband.
42.On 9 September 2019 the Second Respondent filed an Amended Application in a Case (Second Respondent’s Application in a Case) seeking orders that:
a)The Second Respondent be joined as a party to the Second Proceeding.
b)The Wife and the Husband do all things necessary to apply such amount of the funds held in trust by the Applicant’s solicitors as was required to discharge the outstanding Westpac loan …, secured by mortgage …, registered over Property F (Mortgage).
c)Alternatively, the Wife be restrained from distributing the proceeds of sale of Property D until further order.
43.The Second Respondent’s Application in a Case was also made returnable on 30 September 2019.
44.The Second Proceeding next came before the Court on 30 September 2019. On that occasion the Wife and the Second Respondent were represented by Counsel and the Husband by his Solicitor. The Court had before it the Wife’s First Application in a Case and the Second Respondent’s Application in a Case.
45.As at 30 September 2019 the Husband had still not filed any responding material, notwithstanding that he had been served with the Wife’s documents relating to the Second Proceeding on 10 October 2018.
46.On 30 September 2019 the Court declined to make the orders sought in the Wife’s First Application in a Case on the basis that the trial date was just over four weeks away and the Husband was now legally represented and had indicated that he would forthwith file responding material.
47.On 30 September the Court made orders which may be summarised as follows:
a)The Second Respondent be joined to the proceeding.
b)The Husband and the Wife do all things necessary to cause the arrears of the Mortgage to be paid in full from the funds held in trust by the Wife’s solicitors.
c)Until further order the parties cause the monthly instalments of the Mortgage to be paid from the funds held in trust by the Wife’s solicitors.
d)The parties do all things necessary to enable the Wife to have Property F valued.
e)Each party’s costs of the day be reserved.
48.On 9 October 2019 the Wife’s solicitors filed subpoenas addressed to the National Australia Bank Limited and the Westpac Banking Corporation Limited, in relation to the banking records of the Husband and the Second Respondent (Subpoenas).
49.On 22 October 2019 Lake Street Lawyers filed a Notice of Withdrawal as Lawyer and thereby ceased to act on behalf of the Second Respondent. The Second Respondent’s last known address was specified in the notice to be at Property F. On 23 October 2019 Klonis Kirby & Co filed a Notice of Withdrawal as Lawyer and thereby ceased to act on behalf of the Husband. The Husband’s last known address was specified in the notice to be at Property F. The notice also provided the Husband’s mobile phone number and email address of (omitted).
50.On 29 October 2019 the Wife’s Solicitors’ filed a Notice of Request to Inspect in Accordance with Federal Circuit Court Rule 15A.13(1)(c) in relation to the documents subpoenaed from the Westpac Banking Corporation. On 1 November 2019 the Wife’s Solicitors’ filed a Notice of Request to Inspect in Accordance with Federal Circuit Court Rule 15A.13(1)(c) in relation to the documents subpoenaed from the National Australia Bank Limited.
51.On 4 November the Wife filed an affidavit of the Wife[22] (Wife’s November 2019 Affidavit) and a Financial Statement[23] (Second Financial Statement). On 6 November 2019 the Wife filed an Application in a Case (Wife’s Second Application in a Case) where the Wife sought orders which may be summarised as follows:
a)Times be abridged to list the application for an urgent hearing on 6 November 2019.
b)The final hearing be adjourned until a date in late November 2019 and proceed on an undefended basis.
c)The sum of $120,000 be paid to the Wife by way of part property settlement from the money held in the trust account of Rigoni Lawyers (Trust Fund Money).
d)The Husband pay the costs of the application.
[22] Affidavit of the Wife, affirmed and filed on 4.11.19.
[23] Wife’s Financial Statement, affirmed and filed 4.11.19.
52.The final hearing of this matter was listed on 6 November 2019. The Wife was represented by Counsel. The Husband and the Second Respondent were self-represented. Counsel advised the Court that the Wife’s Second Application in a Case[24], the Wife’s November 2019 Affidavit and the Second Financial Statement had been served on the Husband by email at the email address of (omitted) on 4 November 2019, together with a covering letter. The covering letter requested that the Husband provide a copy of the documents to the Second Respondent[25]. Counsel explained that this was on the basis that the Second Respondent does not have an email address and he lives with the Husband at Property F. The Husband told the Court that he had received the email and the documents[26]. The Husband also told the Court that he told the Second Respondent that he had received the email from the Wife’s solicitors[27].
[24]The Court assumes that a copy of the Second Application in a Case that was not filed was emailed to the Husband on 4.11.19. The Second Application in a Case was filed on 6.11.19, whereas the other documents were filed on 4.11.19.
[25] Exhibit App-1.
[26] Transcript T 12:15-38.
[27] Transcript T 12:45-13:3.
53.During the hearing on 6 November 2019 the Second Respondent told the Court that on 17 November 2019 he had posted a letter addressed to me, where he had written everything that had happened since he had brought his family to Australia[28]. The Second Respondent was advised that the Court had received a letter but did not know who it was from, as the correspondence did not refer to the Court reference number. It was explained to the Second Respondent that it was not appropriate to send letters directly to Judges, that I had not read the letter and that information that he wanted to rely upon must be included in an affidavit[29]. The letter was returned to the Second Respondent by one of my Associates during the hearing[30].
[28] Transcript T 14:26-27.
[29] Transcript T 15:5-14.
[30] Transcript T 19:41-20:8.
54.As at 6 November 2019 the Husband had still not filed a Response, Financial Statement or any Affidavit in the Second Proceeding. The Second Respondent had filed only one affidavit[31], which was filed in support of his application to be joined to the Second Proceeding.
[31] Affidavit of the Second Respondent, affirmed 15.7.19, filed 19.7.19.
Consideration – Abridgement of Time for Service
55.I must first consider whether:
a)Time for service of the Wife’s Second Application in a Case be abridged.
b)The Second Respondent should be deemed to have been served with Wife’s Second Application in a Case.
56.Rule 6.19 of the Federal Circuit Court Rules 2001 (Cth) (Rules) provides that:
6.19 Time for service of applications
Unless the court orders otherwise, an application and any document filed with it may not be served:
(a) less than three days before the day fixed for the hearing of an application in a case;
(b) less than seven days before the day fixed for the hearing of any other application.
57.Rule 1.06 of the Rules provides that:
1.06 Court may dispense with rules
(1) The court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
58.Rule 6.04 of the Rules provides that:
6.04 Court’s discretion in relation to service
Nothing in this Part affects the power of the Court:
(a) to authorise service of a document in a way that is not provided for on this Part;
(b) to find that a document has been served; or
(c) to find that a document has been served on a particular day.
59.In this case the Wife’s Second Application in a Case was fixed by the Court Registry for hearing on 6 November 2019, therefore r.6.19(a) of the Rules applies. The Wife’s Second Application in a Case should therefore have been served three days prior to 6 November 2019.
60.The Wife’s Second Application in a Case (unfiled copy), the Wife’s November 2019 Affidavit and the Second Financial Statement were emailed to the Husband on 4 November 2019. The Husband acknowledged receiving the email and the documents. The Husband told the Second Respondent that he had received the email. I refer to paragraph 52 above.
61.In considering the matters referred to in paragraph 55, I take into consideration the fact that the Wife previously filed and served the First Application in a Case seeking an interim property distribution of 50% of the Trust Fund Money as discussed in paragraphs 38 to 46. I also take into consideration that after the hearing on 30 September 2019, both the Husband and the Second Respondent failed to take any further step in this proceeding and failed to provide financial disclosure to the Wife’s solicitors. I also take into account that after the hearing on 30 September 2019 the Husband and the Second Respondent ceased to retain legal representation. In all of these circumstances the Husband and the Second Respondent caused the Wife’s solicitors to have to urgently make an application for an interim property settlement. I also take into consideration the fact that the Husband concedes that he received an email on 4 November 2019[32], as discussed in paragraph 52 above.
[32] Exhibit App-1.
Conclusion – Abridgement of Time for Service
62.I therefore determine that it is in the interests of justice to dispense with compliance with r.6.19(a) in relation to service of the Wife’s Second Initiating Application on the Husband and the Second Respondent. I will therefore order that that service of the Service of the Wife’s Second Application on the Husband and the Second Respondent will be deemed to have taken place on place on 4 November 2019.
63.I also determine that:
a)The Husband be deemed to have been served with the Wife’s Second Application in a Case on 4 November 2019 pursuant to r.6.04(b) of the Rules.
b)The Second Respondent be deemed to have been served with the Wife’s Second Application in a Case on 4 November 2019 pursuant to r.6.04(b) and (c) of the Rules.
Position of the Parties
64.There was no agreement between the parties as to how this matter should progress forward.
Wife’s Submissions
65.Counsel for the Wife submitted that the Respondents had failed to make any proper disclosure and therefore the Wife’s solicitors were required to issue the Subpoenas. The Wife’s solicitors had only been able to access the subpoenaed documents on Monday 4 November 2019. As a result they filed and served the Second Application in a Case on the basis of the information that had then become available.
66.Counsel also submitted that another significant problem with the matter proceeding as a final hearing on 6 November 2019 was in relation to s.102NA(1) and (2) of the Act. Neither of the Respondents was legally represented or had made an application to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for legal representation. In those circumstances Counsel submitted that neither of the Respondents should be permitted to cross examine the Wife if the matter proceeded as a final hearing.
67.In the circumstances Counsel for the Wife sought to pursue the Wife’s Second Application in a Case. The Wife relied upon the following documents:
a)The Wife’s August 2018 Affidavit.
b)The Wife’s Affidavit, affirmed on 16 May 2019 and filed on 23 May 2019.
c)The Wife’s November 2019 Affidavit.
68.The Wife deposed that she was in desperate need of the sum of $120,000 as she needed to rehouse herself following the sale of Property D, where she was living. Whilst the Husband was incarcerated in 2019 the Wife left Melbourne. The Wife deposed:
The husband was on remand for approximately five months due to criminal charges arising from his numerous breaches of the Family Violence Orders. He has also threatened to kill me if I did not reconcile with him. I am frightened for the safety of anyone who might assist me, such as my sister and brother-in-law. I do not wish to live with my sister and brother-in-law as the husband knows their address[33].
Whilst he was in jail, I left Melbourne and have decided I will not return to live here for fear of my future and ongoing safety. I fear for my life and can no longer maintain a relationship with my children, my family or my community. I am in effect extremely isolated[34].
[33] Wife’s November 2019 Affidavit, at [54].
[34] Wife’s November 2019 Affidavit, at [28].
69.The Wife also has significant outstanding legal fees and will have future legal fees. The Wife deposed that the lack of progress in the Second Proceeding has been due to:
a)The Husband serving a term of imprisonment due to consistent breaches of family violence orders.
b)The request by the Second Respondent to be joined to the proceeding.
c)The recent withdrawal of both the Husband and the Second Respondent’s Lawyers[35].
[35] Wife’s November 2019 Affidavit, at [4].
70.The Wife currently owes legal fees in excess of $68,000 and must prepare for a final hearing. The Wife deposed that as a result of the Respondents’ failure to follow Court orders and to actively participate in the Second Proceeding, she has been forced to instruct her solicitor to undertake more work, including the issuing of subpoenas, undertaking searches and writing numerous additional letters. The Wife also deposed that she is unable to afford to prepare for a final hearing[36]. The Wife has been advised by her solicitors that their fees and disbursements (including counsel’s fees) may be a further $30,000 to $40,000 to the end of a final hearing[37].
[36] Wife’s November 2019 Affidavit, at [52].
[37] Wife’s November 2019 Affidavit, at [53].
71.The Wife deposed that during the marriage the Husband and the Second Respondent were in control of the matrimonial finances and therefore the Husband and the Second Respondent have in their possession most of the relevant financial documents[38]. The Wife said that to the best of her knowledge the assets and liabilities of the parties are as follows[39]:
[38] Wife’s November 2019 Affidavit, at [59].
[39] Wife’s November 2019 Affidavit, at [60].
In the Name of
Asset
Estimated Value
Husband and Wife
Proceeds of sale of Property D
$444,526.12[40]
Husband and Second Respondent
Property F
E$580,000
Husband
Land in Suburb F
Unknown
Wife
NAB Bank Account – proceeds sale of furniture
$10,000
Wife
NAB Bank Account 2
$800
Husband
Bank accounts
Unknown
Wife
motor vehicle G
E$7,000
Husband
motor vehicle H –
$30,000
Husband
motorbike I
E$15,000
TOTAL ASSETS
$1,087,326.12+
[40] Wife’s November Affidavit, at [38], and Transcript T 6:23-39.
In the Name of
Liability
Estimated Value
Husband and Second Respondent
Mortgage over Property F
E$236,164
Husband
Mortgage over land in Suburb F
Unknown
Wife
NAB Visa Card
E$4,915
Wife
Outstanding amount to Landers and Rogers Lawyers
$1,500
Husband
Other debts
Unknown
TOTAL LIABILITIES
$269,579+
TOTAL NET PROPERTY POOL
E$817,747.12
72.Counsel for the Wife submitted that the Second Respondent claims that he is a half owner of Property F. Counsel conceded that the Second Respondent was registered as an owner of Property F on the certificate of title. Counsel submitted that as the Wife had a valuation of Property F of $580,000, each of the Husband and the Second Respondent would be entitled to $290,000. Therefore on that analysis only the Husband’s half share of Property F, being $290,000 would form part of the matrimonial asset pool. However the Second Respondent seeks that the Husband and the Wife pay out the whole of the Mortgage (estimated to be $236,164) from the proceeds of sale of Property D being the Trust Fund Money.
73.Counsel submitted that the Wife denies the Second Respondent’s claim to ownership of Property F or that the Mortgage should be paid in full from the Trust Fund Money.
74.Counsel submitted that in the event that the Court did accept the Second Respondent’s claims, the non-superannuation matrimonial asset pool would be:
In the Name of
Asset
Estimated Value
Husband and Wife
Proceeds of sale of Property D
$444,526.12[41]
Husband and Second Respondent
Property F
E$290,000
Husband
Land in Suburb F
Unknown
Wife
NAB Bank Account – proceeds sale of furniture
$10,000
Wife
NAB Bank Account 2
$800
Husband
Bank accounts
Unknown
Wife
motor vehicle G
E$7,000
Husband
motor vehicle H
$30,000
Husband
motorbike I
E$15,000
TOTAL ASSETS
$797,326.12 +
[41] Wife’s November Affidavit, at [38], and Transcript T 6:23-39.
In the Name of
Liability
Estimated Value
Husband and Second Respondent
Mortgage over Property F
E$236,164
Husband
Mortgage over land in Suburb F
Unknown
Wife
NAB Visa Card
E$4,915
Wife
Outstanding amount to Landers and Rogers Lawyers
$1,500
Husband
Other debts
Unknown
TOTAL LIABILITIES
$269,579+
TOTAL NET PROPERTY POOL
E$527,747.12
75.Counsel for the Wife submitted that the Wife only sought $120,000 and that the Wife deposed:
I therefore seek orders for the payment to me by way of a part property settlement in the sum of $120,000 from the proceeds of sale from Property D. I also have motor vehicle G in my possession which is valued no more than $7000 and liabilities of $4,915. If I were to receive $120,000 and retain motor vehicle G and my liabilities the total is $122,085[42].
[42] Wife’s November 2019 Affidavit, at [63].
76.The sum of $122,085 represents 23.13% of $527,747.12. Counsel submitted that the Wife intended to seek 75% of the property pool on the basis of a claim pursuant to Kennon and Kennon [1997] FamCA 27 and the history of the Husband’s domestic violence. Counsel also submitted that as the Husband had failed to participate in the Second Proceeding it was not known what his case was. Counsel contended that the part property settlement of $120,000 was so modest that it must fall within the range of any possible outcome for the Wife, if the Husband ever prosecuted his claim.
77.Counsel also submitted that the Wife could not proceed that day on an undefended basis because of the Respondent’s failure to make disclosure. The Wife’s solicitors had only recently obtained access to the subpoenaed documents. Further the Husband had attended Court that day without any financial documents. The Wife’s solicitors were also still investigating the Husband’s current superannuation situation.
78.Counsel also sought that the Wife’s costs of the Wife’s Second Application in a Case and of the appearance on 6 November 2019 be reserved.
Husband’s Submissions
79.The Husband sought an adjournment of the final hearing so that he could save up to afford a lawyer[43].
[43] Transcript T 10:38-45.
80.The Husband denied committing domestic violence. He said:
I breached the intervention order because of my safety for my children. There is no violence at all. I just went to pick my children front of the house, to drop them school. That’s the breach I done[44].
[44] Transcript T 12:1-3.
81.The Husband opposed the Wife’s application for the part property settlement of $120,000. The Husband made no relevant submissions as to why he opposed the part property settlement.
Second Respondent’s Submissions
82.The Second Respondent sought to rely upon the letter referred to in paragraph 53 above. The Second Respondent also opposed the Wife’s application for the part property settlement of $120,000.
83.The Second Respondent said that he bought Property F in 1996. He said that Property F belonged to him. He also said that when he brought Property F he registered the Husband’s name on the certificate of title as well is his own name, as the Husband is his eldest son. The Second Respondent said that this was in accordance with the Country A cultural system[45].
[45] Transcript T 15:28-43.
84.The Second Respondent said that he, the Husband and the Husband’s younger brother had all contributed money to Property F. The Second Respondent said that he paid the first $57,000 by a cheque from the Commonwealth Bank of Australia[46]. The Second Respondent said:
Just I want to be - repeat my request to you that Property F, under the Country A cultural system, […] He is my elder son. When I bought that property, I put his name with me. He contribute […]
He contribute me, younger brother contribute me, I contributed my money. One man cannot do nothing. All… people - myself, my two sons- help me to- I pay the first 57,000 - something like that- made a cheque from the Commonwealth of Australia couple of years ago […][47].
[46] Transcript T16:32-36.
[47] Transcript T 16:19-21 and 32-36.
85.This account given by the Second Respondent differs significantly from the account the Second Respondent provided in his Affidavit[48] where he deposed:
[…] my principal place of residence at [Property F] which I on the title co-own with my son [the Husband]. I further state that my son has not purchased, paid for or contributed towards my residential property. I have only put his name on the title as he is my oldest son and this is the custom in my country Country A[49].
[48] Affidavit of the Second Respondent, filed 19.7.19.
[49] Affidavit of the Second Respondent, filed 19.7.19, at [4].
The Law
86.The law in relation to property settlements between married parties, whether partial or complete, is found in Part VIII of the Act.
Jurisdiction of Power to Make Order
87.Section 80 of the Act refers to the general powers that the Court has under Part VIII of the Act. Section 80(1)(h) gives the Court the power to:
make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order.
88.Section 79(1)(a) of the Act establishes the power of the Court to alter the property interests of married parties.
89.Section 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
90.In Strahan & Strahan[50] the Full Court of the Family Court considered the provision of funding for litigation expenses and the source of the jurisdiction under the Act to make interim orders for litigation costs. The Full Court said:
In Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 … Brereton J observed at [29], “[t]he juridical bases for an order for preliminary provision for litigation costs in matrimonial proceedings are diverse”. As Brereton J said, an order may be made as a maintenance order under ss 72 and 74 of the Act or a property settlement or order under s 79 and s 80(1)(h) or a costs order under s 117.
…
The Full Court however was of the opinion that the decisions in Wilson and Poletti are authority for the proposition that where there are pending proceedings under s 79 for property settlement an order for the provision of funds may be made pursuant to s 80(1)(h) and independently of the power in s 117(2).[51]
[50] (2011) FLC 93-466
[51] (2011) FLC 93-466 at [82]
Further considerations
91.If the source of jurisdiction is s.79 of the Act the Full Court in Strahan & Strahan[52] said that there was a two staged approach to an interim application as follows:
[52] (2011) FLC 93-466.
In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to section 79 is a once and for all order made after a final hearing[53].
[53] (2011) FLC 93-466, at [132].
…
In relation to the second matter, as the jurisdiction under s 79 of the Act is being exercised the provisions of that section must be considered and applied but with limitations given that it is not the final hearing. There was also no requirement of compelling circumstances in relation to the substantive step[54].
[54] (2011) FLC 93-466, at [135].
92.The Full Court in Strahan & Strahan[55] also considered the “adjustment issue” or “claw-back issue” that was discussed in Harris & Harris[56]. The Full Court said in Strahan & Strahan:
[…] the discretion conferred by the power in s 79 is to make such order as the Court considers appropriate provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order. As Bryant CJ and Coleman J observed in Gabel v Yardley at [69] and [72] the interim order must be capable of variation or reversal without resort to s 79A of the Act or appeal. As Finn J said at [126] the interim order must be “capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power”.
Once the court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79 (4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the court that…the applicant… will be likely [to] receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the orders sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer… In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted[57].
[55] (2011) FLC 93-466, [2009] FamCAFC 166.
[56] (1993) FLC 92-378, at 79, 930.
[57] (2011) FLC 93-466; [2009] FamCAFC 166, at [136]-[137].
93.It was submitted by Counsel for the Wife that the property pool could well accommodate the payment sought by the Wife without prejudicing any claim the Husband may make. The Full Court in Strahan & Strahan[58] said the following:
We also emphasis that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
[58] (2011) FLC 93-466; [2009] FamCAFC 166.
Property Adjustment Section 79(1)
94.In Stanford v Stanford[59] the High Court said that before making any orders for the adjustment of the parties’ property interests, the Court must first determine whether it is just and equitable to make any property orders, or to alter the parties’ interests in property. The High Court stated:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property…. The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order[60].
[59] (2012) 247 CLR 108.
[60] (2012) 247 CLR 108 at [37].
95.The High Court further stated:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4)[61].
[61] (2012) 247 CLR 108.at [42].
96.In Bevan & Bevan[62] the Full Court said that the circumstances described in the above passage of the Stanford v Stanford judgment “encapsulate the vast majority of cases”[63] . Therefore in most proceedings for the alteration of matrimonial property interests, the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the Court for orders altering their respective property interests.
[62] Bevan & Bevan [2013] FamCAFC 116.
[63] Bevan & Bevan [2013] FamCAFC 116 at [70].
97.There is nothing in the present case to distinguish it from “the vast majority of cases”[64].
[64] Bevan & Bevan [2013] FamCAFC 116
Consideration
98.In Strahan & Strahan[65] the Full Court said that when considering to exercise the power under ss.79 and 80(1)(h) of the Act to make an interim property order, that the “overarching consideration” is the interests of justice[66]. The Full Court accepted that:
[…] an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage[67].
[65] (2011) FLC 934-66
[66] (2011) FLC 934-66 at [132].
[67] (2011) FLC 934-66 at [138].
99.I refer to paragraph 70 above in relation to the Wife’s legal fees. The Wife owes her solicitors a significant amount of money and will incur more fees in the future. I also refer to paragraph 68 above. The Wife has also deposed to an urgent need for funds due to having to rehouse herself relocated from Melbourne to live. The Wife’s Second Financial Statement indicates that the Wife has an average weekly income of $944[68] and has an estimated weekly expenditure of $658[69]. This only leaves an estimated amount of $286 a week for the Wife’s discretionary spending. The Wife’s assets are otherwise as referred to in paragraph 71, other than her superannuation in the amount of $32,000.
[68] Wife’s Second Financial Statement, Item [9].
[69] Wife’s Second Financial Statement, Item [33].
100.In all the circumstances of this case, where the Wife has no access to funds with which to conduct these proceedings or to reasonably re-establish herself after her move from Melbourne, I find that it is in the interests of justice to exercise the power under ss.79 and 80(1)(h) of the Act to make the orders for an interim property settlement between the parties pending final orders.
101.I turn now to the second stage of the consideration and consider the provisions of s.79 of the Act.
Section 79
102.Section 79 of the Act regulates the alteration of property interests of parties to a marriage. Section 79(1)(a) of the Act provides that the Court may make such orders as it considers appropriate altering the interests of the parties in the property. Section 79(2) provides that the Court may not make an order pursuant to s.79 unless it is satisfied that, in all the circumstances, “it is just and equitable”.
103.In this matter the parties have separated and both parties have made an application to the Court seeking orders altering their respective property interests. The parties are no longer living in a marital relationship and consequently there will not “thereafter be the common use of property by the husband and the wife”[70].
[70] Stanford v Stanford (2012) 247 CLR 108, at [42].
104.I am therefore satisfied that it would be just and equitable to alter the parties’ property interests under s.79(2). I will now consider the law in relation to the alteration of property interests under s.79.
105.Section 79(4) sets out the matters that the Court must take into account when deciding which orders (if any) should be made.
106.Section 79(4) provides:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The Wife has filed Financial Statements[71] and the affidavits referred to in paragraph 58 in support of her property claim. The Wife says that she has made direct and indirect contributions to the assets of the marriage. The Wife has deposed that at the time of the marriage the Husband owned Property F with the Second Respondent[72]: s.79(4)(a) and (b). The Wife deposed that she has contributed to the welfare of the family by caring for the children [X] and [Y] during the marriage and after separation: s.79(4)(c).
[71] Financial Statement, filed 21.8.18 and the Wife’s Second Financial Statement .
[72] Wife’s August 2018 Affidavit, at [32].
The order I intend to make will not affect the earning capacity of either party to the marriage: s.79(4)(d). There are no other orders made under the Act affecting the parties to the marriage or the children: s.79(4)(f). There is no evidence before the Court that there is a current child support assessment in relation to the children: s.79(4)(g).
The Court must also consider the matters referred to in s.75(2) so far as they are relevant: s.79(4)(e). Section 75(2) sets out the matters the Court must take into account when deciding to make any order for spousal maintenance. I now consider the matters referred to in s.75(2).
In relation to s.75(2)(a): The Wife was born on … 1981 and is aged 38. The Wife is in good health[73]. The Husband was born on … 1975 and is aged 44. The Wife believes that the Husband is in good health[74].
[73] Wife’s August 2018 Affidavit, at [39].
[74] Wife’s August 2018 Affidavit, at [40].
In relation to s.75(2)(b): As to the income of the Wife I refer to paragraph 89. The Husband has failed to file a Financial Statement or provide financial disclosure to the Wife’s Solicitors. The financial resources of the parties, to the extent that they are presently known to the Wife, are referred to in paragraph 71. There is no evidence before the Court that would indicate that both the Husband and Wife do not have the physical and mental capacity for appropriate gainful employment.
In relation to s.75(2)(c): The Children live with the Husband and the Second Respondent and his wife. The Wife has deposed:
Both children reside with the Husband and his parents at [Property F]. I have no contact with them as a result of their alignment with the Husband and the constant threat and fear of family violence to me. The children have in the past been used and manipulated by the husband to facilitate him entering my home without my permission or consent and in breach of family violence orders. Unfortunately I have come to the conclusion that at the present time it is too dangerous for me to have the children in my home[75].
[75] Wife’s November 2019 Affidavit, at [13].
In relation to s.75(2)(d): The Wife relied on the Wife’s Financial Statement. The Wife has not disclosed any commitment to support any other child or person.
In relation to s.75(2)(g): The Wife presently has an income as discussed in paragraph 89 above. The Wife requires funds to assist her in re-establishing herself living away from Melbourne. The Wife should be able to re-establish herself with the standard of living that is reasonable in all the circumstances.
In relation to s.75(2)(o): The Court takes into consideration that the Wife’s present circumstances have been caused by the Husband’s behavior and also the Second Respondent’s behavior, by reason of the following:
a)The Husband and the Second Respondent have failed to participate in any meaningful way in the Second Proceeding. They have failed to provide financial disclosure to the Wife’s solicitors. The Wife’s November 2019 Affidavit annexes correspondence from the Wife’s solicitors to the Husband’s solicitors and the Second Respondent’s solicitors urgently requesting financial disclosure[76].
b)The Husband’s behavior towards the Wife, has caused the Wife to be in fear of her life and to relocate away from Melbourne to live. Whist this is an interim proceeding, I note that the Husband has this year been imprisoned for breach of an intervention order. I note that this is not the first time that the Husband has served a period of incarceration for breach of an intervention order.
The Court also takes into consideration the application in the Wife’s Second Application in a Case, that the proceeding be adjourned to a date in late November 2019 and proceed on an undefended basis. The Court is unable to accommodate the re-listing of this proceeding until … 2020. The Wife should not have to wait for at least a further six to seven months for judgment and then the release of funds to her from the Trust Fund Money. The Wife urgently requires the funds now.
I have considered the remaining sub-sections in s.75(2) and do not consider them to be relevant in the present case.
[76] Wife’s November 2019 Affidavit, at [42] and “D1”, “D2” and “D3”.
Having reviewed the evidence, it is apparent that the Wife would receive by way of a final property settlement, a sum sufficient to cover the order proposed by the Wife, of a part property settlement in the sum of $120,000. Having considered the law and the evidence under s.79 in the context of this hearing being an interim hearing and not a final hearing, I must now decide whether to make the order for a part property settlement in the sum of $120,000 in favour of the Wife.
Conclusion – Part Property Settlement
119.I have determined to make an order that the sum of $120,000 shall be paid to the Wife by way of a part property settlement from the Trust Fund Money.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Date: 14 November 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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