Jepson & Jepson (No 4)
[2023] FedCFamC1F 937
•23 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jepson & Jepson (No 4) [2023] FedCFamC1F 937
File number(s): SYC 2100 of 2016 Judgment of: MCCLELLAND DCJ Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – PROPERTY – ADJOURNMENT – Where a final hearing has been set down to commence on 23 October 2023 – Where the second respondent has failed to file and serve their trial materials until two days prior to the hearing – Where the Court will not allow the second respondent to rely upon their trial affidavit in circumstances where the first respondent is a self-represented litigant and would be unfairly prejudiced if the hearing proceeded – Where the second respondent seeks an adjournment – Where the evidence of the second respondent goes to a number of issues of relevance in the proceedings – Where the applicant is involved in concurrent criminal proceedings that are expected to be completed in mid-2024 – Final hearing adjourned until July 2024 – Second respondent ordered to pay costs of the first respondent on an indemnity basis. Legislation: Family Law Act 1975 (Cth) s 117 Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 23 October 2023 Place: Sydney Counsel for the Applicant: Mr Levick Solicitor for the Applicant: Powe & White Family Lawyers The First and Third Respondent: Litigant in person Counsel for the Second Respondent: Mr Saunders Solicitor for the Second Respondent: Russell Kennedy Lawyers NSW ORDERS
SYC 2100 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JEPSON
Applicant
AND: MS JEPSON
First Respondent
MS B JEPSON
Second Respondent
K PTY LTD
Third Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.The proceedings are adjourned until the week commencing 1 July 2024.
2.The second respondent is to pay the costs of the applicant thrown away as a result of the adjournment on an indemnity basis, with such costs to be payable within 28 days as agreed or assessed.
THE COURT NOTES THAT:
A.The applicant has indicted the potential to make an application for an interim property adjustment order.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Jepson & Jepson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter has been listed for hearing for some months now, with trial directions having been made on 22 March 2023. Relevantly, those trial directions provided that:
13.No later than 21 days prior to the trial date, the applicant and second respondent file and serve:
a.any Amended Initiating Application setting out with particularity the precise final orders sought;
b. an updated single consolidated trial affidavit;
c. other witness affidavits upon which they intend to rely; and
d. an updated Financial Statement.
While there was some delay on the part of the applicant in filing their evidentiary material, for the purpose of this decision, that delay is not relevant. The concern of the Court relates to the fact that the second respondent, who is the mother of the applicant, did not serve her trial affidavit until 4.30 pm on Friday 20 October 2023, with the document being filed electronically on the court portal on Sunday 22 October 2023.
The matter has been listed for a five-day final hearing. At the commencement of the hearing, I indicated to counsel for the applicant and counsel for the second respondent the disquiet I have in forcing the first respondent to meet the applicant’s case and the claim by the second respondent, in circumstances where she did not receive the second respondent’s affidavit until late in the trial management process and immediately prior to the weekend pre-dating the hearing.
That concern was subsequently confirmed by the first respondent who indicated that the only opportunity that she had to consider the second respondent’s affidavit was by way of attempting to read it on the train whilst travelling to the Sydney Registry for the commencement of the hearing. The affidavit in total is 267 pages long, although it must be said that the actual document, when not considering the annexures of the affidavit, is much shorter, being some 16 pages.
The Court voiced concern to counsel for the second respondent that if the matter proceeded this week, the Court would not permit him to rely on his client’s affidavit. Subsequently, counsel sought instructions and consequently applied for an adjournment. The adjournment application was, in effect, in two parts: firstly, that there be a delay of several days before the affidavit of the second respondent is tendered and any subsequent and potential cross‑examination on the affidavit be consequently deferred and secondly, if that was found to be an unsuitable outcome, that an adjournment for a longer period would take place.
In the circumstances of this case, I accept that an adjournment is appropriate. This is so in circumstances where it has been explained to me, albeit from the bar table, that, in recent weeks, the original legal representative of the second respondent advised the second respondent that he accepted the argument, or at least considered it of sufficient merit, that he should withdraw from acting for the second respondent due to a conflict of interest. That the solicitor for the second respondent continued to act in the proceedings is surprising given that, in the orders of 8 June 2023, the Court recorded that the potential conflict had been raised with the solicitor.
Nonetheless, I accept that the circumstances confronting the second respondent have, in large part, occurred as a result of the last-minute steps she was required to take in order to change legal representation. On that basis, I consider that an adjournment is appropriate rather than for the proceedings to continue without her evidence being presented. The second respondent’s evidence goes to a number of significant issues including, most relevantly, a claim for repayment of loans which she contends are payable by either the applicant, first respondent and/or the third respondent. It also goes to issues regarding ownership of a collection as well as the expenditure of the proceeds of sale of some vehicles and other furniture and equipment.
In considering the length of an appropriate adjournment, I have had regard to the potential prejudice to the first respondent in circumstances where she has submitted that the material set out in the affidavit of the second respondent is such that she would not be in a position to sufficiently respond to that material in a two-day period. In doing so, I note, however, that at least in a broad sense, the issues traversed in the second respondent’s affidavit have been articulated in various stages of these proceedings, including in a number of interim proceedings that have occurred. Nonetheless, and in circumstances where the first respondent is self‑represented, I accept the potential for prejudice if the adjournment is not for a longer period than the period of two days.
As a secondary consideration, I have had regard to the fact that I have been informed today that the first respondent has been identified as a witness in respect to criminal proceedings that have been commenced against the applicant. It appears that the proceedings are likely to conclude in mid-2024. While I acknowledge that counsel for the applicant has indicated that it is his client who would be prejudiced in the overlap of matters being considered in these proceedings and the criminal proceedings, I have some discomfort in presiding over proceedings which will inevitably traverse matters that may overlap with issues being considered in the criminal proceedings. Although, that concern remains despite the assurance from counsel for the applicant that he would do his best to differentiate between those potentially overlapping issues.
Accordingly, it is my view that it is appropriate for the matter to be adjourned until after the criminal proceedings conclude which is anticipated to be in mid-2024. The first date that I have available for the matter to continue, after that date, is the week commencing 1 July 2024. On that basis, I adjourn the matter until 1 July 2024.
COSTS
The Court has indicated to the first respondent that, in circumstances where she is self‑represented, and has not incurred legal fees in the immediate months preceding this hearing, that she is not entitled to an order for costs pursuant to s 117 of the Family Law Act1975 (Cth). Accordingly, I make no order requiring the second respondent to pay the first respondent’s costs.
However, I accept the merit of the applicant’s argument, that in circumstances where the proceedings have been adjourned as a result of no fault of the applicant and where the issue of possible conflict was identified some months ago, that it is appropriate to make an order for the second respondent to pay costs, thrown away as a result of the adjournment, on an indemnity basis.
Accordingly, I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 29 November 2023
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