Erwin & Loupe (No 4)
[2024] FedCFamC1F 530
•23 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Erwin & Loupe (No 4) [2024] FedCFamC1F 530
File number: MLC 14204 of 2022 Judgment of: MCNAB J Date of judgment: 23 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for the final hearing to proceed on an undefended basis as against the first respondent – Where the first respondent’s conduct and failure to comply with orders justifies the final hearing proceeding on an undefended basis as against the first respondent. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33
Cases cited: Berridge & Leigh [2017] FCCA 2876
Tate & Tate (2000) FLC 93-047
Zane & Allan [2008] FamCAFC 115
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 23 July 2024 Place: Melbourne Counsel for the Applicant: Mr Mort Solicitor for the Applicant: Cahill Family Lawyers Counsel for the First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: The Second Respondent did not appear Counsel for the Third Respondent: The Third Respondent appeared in person Counsel for the Fourth Respondent: Ms GG Counsel for the Independent Children's Lawyer: The Independent Children’s Lawyer did not appear ORDERS
MLC 14204 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ERWIN
Applicant
AND: MR LOUPE
First Respondent
CA PROPERTY PTY LTD
Second Respondent
MS GG
Third Respondent
CB LAWYERS
Fourth Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
23 JULY 2024
THE COURT ORDERS THAT:
1.Order 1 to 5 (inclusive) of the Interim Orders dated 8 December 2023 in relation to the appointment of single experts be set aside.
2.Order 26 of the Interim Orders dated 6 May 2024 in relation to the appointment of Mr CC as single expert be set aside.
3.Order 1 and 2 of the Interim Orders of the Senior Judicial Registrar dated 5 June 2024 (as amended on 11 June 2024) in relation to the joint letters of instruction for sending to the single experts be set aside.
4.The final hearing commencing 12 August 2024 proceed on an undefended basis as against the First Respondent.
5.The First Respondent pay the applicant’s costs of and incidental to this Application.
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 Erwin & Loupe has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCNAB J
This matter comes before the Court by way of an Application in a Proceeding filed on 15 July 2024 by the applicant in the substantive proceedings, Ms Erwin. The applicant is seeking that orders made on 8 December 2023 in relation to the appointment of single expert witnesses be discharged and that the proceeding be conducted on an undefended basis by reason of the first respondent’s failure to comply with orders of the Court. The first respondent filed a Response to the Application in a Proceeding, and he seeks that the proceedings be stayed or adjourned to allow the Queensland Police or the ATO to investigate a complaint which he made on 24 June 2024 to the Suburb CD Police where he raises allegations of fraud. The details of those allegations are not clear.
The applicant appeared represented by Mr Mort of counsel, the first respondent appeared self‑represented and Ms GG, who is a joint party and a professional, appeared on her own behalf and for the fourth respondent. Leave was sought by Ms CE to appear as a friend of the Court on behalf of Mr Loupe, but that leave was refused on the basis that Ms CE is in fact a witness in the proceeding by reason of an affidavit that she filed. She described herself as a “friend of a friend” of Mr Loupe. She did sit with Mr Loupe and assisted him, and she advised the Court that she was a professional. Ms GG and Mr Loupe appeared electronically.
These proceedings commenced on 14 December 2022 when the applicant filed an Application for Final Orders in relation to property matters. The matter has been before the Court on numerous occasions, with the first respondent being at times represented and at other times self-represented. When the proceedings commenced, the property pool was comprised of numerous properties which have been the subject of finance, and there are now around 10 properties remaining in the pool with equity of about $2.75 million. Four of the properties are in the first respondent’s name and the balance of the properties are either in the name of CA Property Pty Ltd, CA Investments Pty Ltd or CA Holdings Pty Ltd.
The first respondent’s behaviour throughout this proceeding has been at times bizarre and abusive. Since the application was made to the Court in December 2022, the husband has made allegations of fraud involving various people, including Mr CF, a finance professional, and claims that the applicant was involved in a criminal syndicate that has produced false documents. The allegations have never been set out in any coherent form. The applicant has raised that reports have been made to the police in Victoria, New South Wales and Queensland. Most recently, he has made a report to the police in Suburb CD, Queensland.
On 24 June 2024 Ms CE, who I mentioned earlier, accompanied Mr Loupe to the Suburb CD police station, and she produced a letter annexed to an affidavit sworn by her from a leading constable at the Suburb CD Police Station, which provides:
To whom it may concern, […] I checked the Police electronic records for QPS occurrence […]. The matter relates to significant allegations of fraud and, as such, it is currently being investigated by Criminal Investigations Branch officers. The investigation is still ongoing at this time.
There is no indication given as to the detail of the allegations, when that investigation may be concluded or whether the applicant is a suspect in any investigation. In the time since the proceedings were issued, the applicant has not been provided with a report or a request for an interview by the police (whether state or federal). Further, the first respondent has never made any detailed claim as to how any alleged fraud might impact on the orders that the Court may make.
The matter was listed for final hearing on 11 December 2023 but could not proceed, essentially because the first respondent was not in a position to proceed, and there were allegations of fraud being made by the first respondent which had then not been developed.
On 8 December 2023 the Court made orders vacating the 11 December 2023 trial date and, at the first respondent’s request, made orders for the appointment of a forensic accountant and a handwriting expert so that he could advance any claims that he made in relation to fraud. The orders set out a regime for the appointment of single experts.
At that hearing, the father also raised that he may not be the father of the child, X, who is now aged eight, and sought orders in relation to paternity testing. He has not complied with those orders, although the wife and child presented for testing in conformity with the orders.
Neither has the first respondent has complied with the orders in relation to the appointment of single experts. In relation to the appointment of a handwriting expert, the solicitors for the applicant wrote to the first respondent after sending him earlier correspondence (which is set out in an affidavit of the wife in support of this application) trying to organise the experts, and on 9 April 2024, the solicitors wrote to the first respondent in these terms:
On the 5th of March 2024 we wrote to you saying that we would agree to the appointment of [Mr CG] […] as the agreed handwriting expert.
In your letter of the 3rd of April, 2024 you have sought from us a joint letter to the handwriting expert. With respect, it is you who wants the handwriting expert. We expect you to prepare the proposed joint letter for submission to our office and approval by our client. Given that you now are a [professional], we would have thought you had ample resources available to you to prepare the joint letter.
We look forward to the receipt of same at your earliest convenience.
Further, we refer to our letter of 5th of March, 2024 wherein we again requested that you appoint three Melbourne based Forensic Accountants for our client to choose. Please advise of your proposed panel of Forensic Accountants.
The response that was received to that correspondence came on 9 April 2024 from the first respondent by email of that date, relevantly provided:
Dear […],
Go fuck yourselves best you start learning criminal law and I suppose family law to
GAME SET MATCH
[Loupe]. V Everyone 6-0 6-0 6-0
Welcome To The BIG STAGE MOTHER FUCKERS!!!!
No 1 fucks with my daughter’s life… NO 1.
See You On The News
[Mr] “Wins Wars” [Loupe]
Without going through all the correspondence on the subject, the fact is, the handwriting expert was never approached by the first respondent to be appointed and the handwriting expert has not been appointed pursuant to the orders that were made on 8 December 2023.
Similarly, orders were made for the appointment of a forensic accountant and no forensic accountant has been appointed. The proposed forensic accountant was approached after a lot of correspondence and negotiation, which was managed through the applicant’s solicitor.
The first respondent had also been corresponding with the proposed forensic accountant, providing him with documents. An application was heard before a Senior Judicial Registrar in order to streamline the process for the appointment of the forensic accountant and orders were made to do that.
On 4 July 2024 the first respondent wrote to the expert. At [59] of the applicant’s affidavit it states that the applicant’s solicitors were copied into correspondence from the first respondent to Mr CC, the finance professional, where he stated:[1]
Hi [Mr CC].
Thanks for your email. I have a bundle of documents as per the list that I sent you on its way to you shortly. I am just having technical issues as its quite a large bundle of documents. I should have this to you by tomorrow.
Thanks for your patience.
[1] Applicant’s affidavit filed 15 July 2024, at [59].
The applicant deposes to having been copied into correspondence from Mr CC to Mr Loupe regarding the cost of the report, but that quotation was never accepted by Mr Loupe.
Instead, on 9 July 2024, the applicant’s solicitors were copied into correspondence from the first respondent to Mr CC which provided, and to quote [65] of the applicant’s affidavit:[2]
Hi [Mr CC].
Please see attached The Australian Federal Police are taking this matter on now due to the federal offenses that have happened. I Appreciate your hard work in regard to the Bathroom Reno [sic] quote… that was the reason allegedly why I got my house burnt down & saved my daughters [sic] life… or was it???
[2] Applicant’s affidavit filed 15 July 2024, at [65].
The first respondent was asked about what he meant by that email to the finance professional and he gave a singularly bizarre explanation, which made no sense, was abusive and made it clear that he was not cooperative in the process of the appointment of an expert.
I find that the first respondent has not complied with the orders of 8 December 2023 in relation to the process of the appointment of single experts, which he sought to be appointed.
It has also been raised that the first respondent has failed to comply with his duties of disclosure. The Court made orders on 25 August 2023 for a detailed list of documents to be disclosed by the first respondent, and the applicant has put evidence before the Court that there has been a substantial failure to comply with those orders. The first respondent asserts that he has not complied with disclosure as he has been advised by the police not to do so. No application has been made by him to discharge the orders made on 25 August 2023 and the first respondent remains in breach of those orders to provide disclosure.
The first respondent has failed to comply with orders of the Court and has been put on notice of the consequences of the non-compliance. He has not produced any document, whether as an application or otherwise, which sets out the substance of any fraud committed by the applicant, or its impact on these proceedings. The first respondent was given an opportunity to address the Court as to why the orders sought by the applicant should not be made. His approach today has been abusive. He has been disrespectful both to the Court and to counsel for the applicant. He makes florid accusations that the legal representatives for the applicant are somehow parties to a fraud, and he has never explained how. He swore profusely and was insulting throughout.
I have no confidence that the allegations that he raises will ever be formulated in terms that can be understood and investigated in a timely way. He has used the Court process to subject the applicant to very significant expenses and, no doubt, emotional turmoil. The particular instance which springs to mind immediately is the claim that he was not the father of the parties’ child and then sought and obtained orders for paternity testing. He then failed to comply with those orders, with the wife and the child subjecting themselves to that process as a result of his request. His behaviour towards legal practitioners and proposed expert witnesses has been bizarre and productive of a lot of wasted time and expense and there is no indication that behaviour will stop.
I find that due to the first respondent’s conduct as outlined and his failure to comply with orders, it is appropriate that the Court make orders for the matter to proceed as between the applicant and the first respondent on an undefended basis pursuant to rule 1.33(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I have regard to the helpful survey prepared by Judge A. Kelly in Berridge & Leigh [2017] FCCA 2876 of the relevant authorities in relation to circumstances in which the Court might order that proceedings proceed undefended and the way that proceedings are conducted once that order is made. His Honour has referred to the relevant Full Court authorities of Tate & Tate (2000) FLC 93-047 and Zane & Allan [2008] FamCAFC 115 at [75] which provides:
75.The nature of an undefended hearing was also dealt with in Tate v Tate (2000) FLC 93-047. There, Nicholson CJ, Kay and Waddy JJ held at [107]-[108] that in exercising the discretion to order an undefended hearing, the court may in an exceptional case, proceed with a hearing as being undefended. Their Honours observed that “no litigant, whether legally represented or not, should harbour any doubt that manipulation of court processes . . . through disregard of and deliberate non-compliance with its order and directions will attract other than the strongest measures from the Court”:
Given that the applicant has been wholly successful in this application and has been put to very substantial expense in relation to the preparation of the application and the affidavit, taking into account the first respondent’s conduct today as a matter of discretion under s 117(2)(c) and (d) of the Family Law Act 1975 (Cth) where his behaviour throughout this proceeding has been quite disgraceful, and it was nothing less than that today. I feel that much of his behaviour has been in order to cause distress to the applicant, and for those reasons, I will make an order that the first respondent pay the applicant’s costs of and incidental to this application.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 23 July 2024
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