Freer and Freer & Ors (No 4)

[2009] FamCA 1202

FAMILY COURT OF AUSTRALIA

FREER & FREER AND ORS (NO. 4) [2009] FamCA 1202

FAMILY LAW – PRACTICE AND PROCEDURE – application by wife seeking orders pursuant to rule 19.04 – orders made by consent

FAMILY LAW – PROPERTY SETTLEMENT – interim issues – application by the wife seeking orders pursuant to s 117(2) or ss 79 or 80 by way of “litigation funding” – where the wife claims to have no funds to meet her legal costs – where the husband seeks an adjournment to file further material – application for adjournment not opposed by the wife – adjournment granted

FAMILY LAW – PRACTICE AND PROCEDURE – application by the intervenor seeking orders by way of discovery – oral application by the intervenor seeking leave to issue subpoenas – where subpoenas were issued by the intervenor without leave of the Court – where relevance has not been established – subpoenas set aside – documents produced to be returned

Family Law Act 1975 (Cth) ss 79, 80 & 117(2)
Family Law Rules 2004 (Cth) r 19.04

APPLICANT: Ms Freer

FIRST RESPONDENT: Mr Freer

TRUSTEE IN BANKRUPTCY: Mr Smith

INTERVENOR: Mr Rickards

FILE NUMBER: ADF 1629 of 2005

DATE DELIVERED: 18 September 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Lynch Meyer

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: David M Davidson

COUNSEL FOR THE OTHER PARTY: Mr Gretsas

SOLICITOR FOR THE OTHER PARTY: Gretsas & Associates

COUNSEL FOR THE INTERVENER: Mr Dart

SOLICITOR FOR THE INTERVENER: Howe Martin & Associates

Orders

1. Pursuant to Rule 19.04 of the Family Law Rules that within 21 days the husband do forthwith provide to the wife’s solicitors and to the court a written statement of the actual costs incurred by the husband up to and including this date, and the source of the funds for the costs paid by or on behalf of the husband to date.

2. That further consideration of paragraph 2 of the Application in a Case filed by the wife on 14 August 2009 be adjourned to 9:00am (NSW time) on 25 September 2009.

3. That the husband have leave to file and serve any further affidavit material on which he intends to rely for the purposes of the hearing of that application by 4:00pm on 24 September 2009.

4. That further consideration of the Application in a Case filed by Mr Rickards on 14 September 2009 be adjourned for mention to 9:00am (NSW time) on 25 September 2009.

5. That the wife file and serve responding documents to that application by 4:00pm on 24 September 2009.

6. That the three subpoenas issued by Mr Rickards on 19 August 2009 and 20 August 2009 directed to SAPOL seeking documents in relation to JB, AB and CB be set aside and the documents returned to SAPOL.

7. That the hearing on 25 September 2009 take place by way of telephone link between the Sydney Registry and the Adelaide Registry.

8. That the question of the wife’s costs of today be reserved to the adjourned hearing.

IT IS NOTED that publication of this judgment under the pseudonym Freer & Freer and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1629 of 2005

MS FREER

Applicant

And

MR FREER

Respondent

And

MR SMITH

Trustee in Bankruptcy

And

MR RICKARDS

Intervener

EX TEMPORE REASONS

1. The primary application before me today is the application of the wife filed on 24 August 2009 in which she sought orders, firstly, pursuant to Rule 19.04 of the Family Law Rules, and secondly, pursuant to either s 117(2) of the Family Law Act or ss 79 and 80 of that Act.

2. In relation to the orders sought pursuant to Rule 19.04 I am told that I can make an order by consent on the basis of the written statement being provided within 21 days, and there is no opposition to that timeframe from Mr Berman who appears for the applicant. Thus I will make that order by consent in a moment.

3. In relation to that part of the application seeking orders pursuant to either s 117(2) or ss 79 and 80, that is an application whereby the wife seeks payment from the husband in the sum of $80,000 - and this is my phraseology - by way of litigation funding.

4. In short, the wife says that she has no funds to meet her legal costs, she will be unrepresented if she does not have access to funds, and she says that there is prima facie funds that the husband has available and which can and should be attached in some way to provide the wife with sufficient funds to allow her to be represented.  She seeks $80,000.  The calculation of that amount is set out in the affidavit in support of the application.

5. The husband opposes that application and has today tendered a response, together with a supporting affidavit.  I have heard argument about this matter today, but unfortunately, at the end of the day, Mr Jordan has sought an adjournment to enable further affidavit material to be filed by his client specifically addressing at least paragraph 37 of his affidavit, wherein the husband deposed to certain liabilities that he says he has.  In short his position is that he has an amount of $150,000 but he has liabilities which exceed that amount, and thus there is in fact no funds available to meet the wife's claim.  The difficulty is that there is insufficient information in paragraph 37 of the affidavit to enable me to make a fully informed finding as to whether the husband does have those liabilities or not, or even if he does whether they are pressing, what the terms of those liabilities are, whether they can be deferred, and a number of issues of that ilk which arise.  Further I have indicated a preliminary view about the matter, namely that if, in fact, there are funds that the husband has available to meet his legal costs then, prima facie, there should be the ability for the husband to provide some funds in one way or another to enable the wife to also meet her legal costs. 

6. Both parties are in the same position.  This is an application for property settlement which is contested.  There is property, but it is not extensive.  The parties have spent, it seems, significant legal costs to date.  We are on the cusp of having the final hearing, and the issue is brought to a head as a result of the husband receiving, via certain other proceedings, which I do not need to elaborate upon, an amount of $150,000 which prima facie is allowing him to provide an undertaking to his current solicitor to pay his estimated future costs which he says are in the sum of $50,000.

7. In any event, there is that application to adjourn.  It is not opposed by the wife and I propose to grant the adjournment.  Time is short, though, given the fact that the final hearing is listed for November.  Thus to confirm what I indicated during the course of submissions I propose to list this matter by way of telephone link, with me sitting in Sydney as I am next week, at 9:00am on Friday morning.  In the meantime I will give Mr Jordan leave to file further affidavit material of his client and hopefully then the matter can be finalised at that time.

8. In discussion between bar and bench, it has also been raised that it would be useful, if not necessary, to know what the final orders that the husband seeks by way of property settlement will be, and I note in that regard that he has until 29 September 2009 to file an Amended Response setting out that detail.  Thus, we will not have that by next Friday.  If it becomes necessary to have that then I have offered to the parties a further hearing time some time in the week commencing 5 October 2009 but we will take it one step at a time at this stage and just set up the hearing on Friday of next week.

9. Separate to that, Mr Rickards filed an application on 14 September 2009 wherein he seeks an order by way of discovery.  In relation to that application Mr Dart who appears for Mr Rickards has sought that that proceed by way of simply mention today and be listed again for mention next Friday. Mr Berman has sought the opportunity to file a response to that application and that can be done by next Friday.  Thus when we come back to it we will know the parameters of the dispute, and I am comfortable to proceed on that basis.

10. Next, although there is no formal application by Mr Rickards, in his affidavit filed on 14 September 2009 in addition to referring to the issue of discovery he raises a matter in relation to three subpoenas that he issued on 20 August 2009 to SAPOL seeking documents in relation to JB, AB and CB. 

11. Those subpoenas have been answered by SAPOL.  The Registrar, though, has refused to make an order for inspection given, as I understand it and taking it from Mr Rickards’ affidavit, none of the persons named in the subpoenas had apparently been advised of the subpoena. 

12. Now, I have raised with Mr Dart the fact that Mr Rickards had no leave from the Court to issue these subpoenas.  However, I have invited Mr Dart on behalf of his client to today make an oral application for leave and he has made that application and that application is before me now. 

13. The application is opposed by the wife and by the trustee represented by Mr Gretsas, but it is supported by Mr Jordan representing the husband.  I have heard submissions primarily from Mr Dart in support of the application, and as I say, I have read Mr Rickards’ extensive, or relatively extensive affidavit setting out in some detail what he says is the relevance of these documents.

14. I have indicated it already in my remarks, but I repeat having read all that and having heard submissions, in my view relevance is not established and I am not prepared to grant leave for the issue of the subpoenas.  Thus the order I propose to make is to dismiss those three subpoenas, or set them aside, and order the return of the documents.

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 18 September 2009.

Associate