Francis & Francis
[2024] FedCFamC2F 1700
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Francis & Francis [2024] FedCFamC2F 1700
File number(s): SYC 7748 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – Property – Application to reopen matter after conclusion of final hearing – Application to adduce further evidence – Where judgment remains reserved – Where respondent claimed no interest in estate of recently deceased parent at final hearing – Where applicant claims respondent stands to inherit significant sum from deceased parent’s estate – Submission that matter can be dealt with via written submissions – Where serious allegations of misleading the court in final hearing warrant further hearing – Matter listed for further half-day of final hearing. Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 25 November 2024 Place: Melbourne Solicitor for the Applicant: Mr Gibbs, Edwards Moloney Family Law Solicitor for the Respondent: Ms Abbot-Monnox, Watts McCray ORDERS
SYC 7748 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FRANCIS
Applicant
AND: MS FRANCIS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The affidavit of the applicant filed 12 November 2024 be and is admitted as evidence in the substantive proceedings and the affidavit of the respondent filed 19 November 2024 be and is admitted as evidence in the substantive proceedings.
2.The matter be and is adjourned for a further half-day of final hearing at 10.00 am on Thursday 19 December 2024 via Microsoft Teams.
3.Counsel be and are excused from appearing at the further hearing, notwithstanding that the Court would be assisted if the same counsel are able to appear.
AND THE COURT NOTES THAT:
A.It is a matter for the parties whether they are represented by solicitors and/or counsel when the matter returns.
B.The further hearing arises from the applicant seeking to cross-examine the respondent about assertions in her affidavit filed 12 November 2024.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the matter of Francis, the final hearing was concluded on 26 September 2024. An issue in the proceedings before it concluded was the issue of any very late-in-the-piece inheritance by Ms Francis, given her father’s recent passing. Her father had passed very shortly before the commencement of the trial. Whilst judgment was reserved, on 15 November 2024 Mr Francis filed an application to provide further evidence and reopen the matter. I listed the matter for mention today (25 November 2024), to deal with that application. As I had expected, the matter moved on and Ms Francis filed an affidavit disclosing that she expects to receive the sum of $125,000 and each of the children would have $50,000 held in trust for them (to be accessed as adults) and that she had proceeded under the misapprehension at trial that her father's entire estate would pass to her mother.
Some of those facts, in particular the last – the issue of whether Ms Francis intentionally failed to grasp that nettle of potential inheritance and misled the court – is said to be alive in the proceedings. I was initially very attracted to Ms Francis’ solicitor’s position that the evidence of the inheritance can be admitted, short written submissions could be made about the consequence on it, and I could then determine that evidence along with all the other evidence in dealing with the matter on the papers. The matter would tip over the three-month delay rule of thumb in this court (when alarm bells start ringing[1]) on Boxing Day.
[1] And the rhetorical equivalent of fire-fighters in hats inscribed “Warning, delayed judgment”, run up and down the court corridors
Mr Gibbs, solicitor for Mr Francis (the applicant in today’s application), tells me that he supports the submission that would otherwise have been made by Mr Schonell, his counsel, that the evidence needs further testing because of the grave matter of the allegations that are being made. Mr Francis is making the allegation that Ms Francis intentionally misled the court. The consequences of that would be significant in terms of costs were such a finding made, says Mr Gibbs. There are also other matters that Mr Gibbs says are alive but have not been dealt with by the affidavit filed by Ms Francis. At the final hearing, each party, to my recollection, placed significant weight on the issue of the credit of the parties, and there was a fairly robust and carefully prepared attack on the credit of Mr Francis.
Tempting though it is to simply press on with only further written submissions which of itself necessitates substantial expense (it is not done for nothing, and it is not scribbled on the back of an envelope), both sides, I am satisfied from the degree of care they took in the proceedings before me, would put considerable care into the submissions, and even if I order that that they be short, of course, that can only make them more difficult and time-consuming to prepare.[2]
[2] Everyone will recall the American novelist who, on a speaking tour, was asked, after delivering a short address, how long had he prepared it for, and he said, because it was short, he had been working on it for a year. He was then asked, “Well, how long would you have to prepare to talk all day?”, and he said, “I could start speaking immediately”. And the other analogy is, “I didn't have time to write you a short letter, so I’ve written this long one”.
So, there is some inevitable expense coming whichever way I rule. I am also, whilst initially attracted to Ms Abbott-Monnox’s position on behalf of Ms Francis, troubled by the circumstance that Ms Francis would not have the opportunity in oral evidence to rebut suggestions or allegations put to her and may, as she was able in oral evidence before me, be able to add colour and clothing to the skeleton of a position that would be in the written address.
For all of those reasons, and in particular, the reasons submitted to me by Mr Gibbs, I am going to list the matter for hearing at 10.00 am on 19 December 2024, when I would otherwise be writing a judgment in another case. The consequences of this is that other case will have to wait a little bit longer for decision.
I will rely on the expertise of counsel that I am allocating half a day to the matter as requested on the basis that we will conclude the evidence at 1.00 pm. We will conclude the evidence and further final addresses if necessary.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 10 December 2024
0
0
0