Jepson & Jepson (No 4) - [2023] FedCFamC1F 937

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jepson & Jepson (No 4)

Details

AGLC: Jepson & Jepson (No 4) [2023] FedCFamC1F 937
Case: [2023] FedCFamC1F 937
Decision Date: 23 October 2023

CaseChat Overview and Summary

The case of Jepson & Jepson (No 4) involved a dispute between Mr Jepson and Ms Jepson, with Ms B Jepson and K Pty Ltd also being parties to the proceedings. The case was heard in the Federal Circuit and Family Court of Australia. The primary issue was whether the second respondent, Ms B Jepson, should be permitted to rely on her trial affidavit when she had not filed and served her trial materials until two days prior to the hearing, which would have unfairly prejudiced the self-represented first respondent, Mr Jepson.

The court had to determine whether an adjournment should be granted to allow Ms B Jepson to properly prepare her case, given the critical nature of her evidence on several relevant issues. Additionally, the court considered the concurrent criminal proceedings involving Ms B Jepson, which were expected to be completed in mid-2024. The court ultimately decided that it would not allow Ms B Jepson to rely on her trial affidavit under the circumstances, as doing so would unfairly prejudice Mr Jepson. Consequently, the court granted an adjournment until the week commencing 1 July 2024 and ordered Ms B Jepson to pay the costs incurred by Mr Jepson due to the adjournment on an indemnity basis.

The court noted that Mr Jepson had indicated a potential intention to make an application for an interim property adjustment order. This decision highlights the court's consideration of procedural fairness, particularly in cases where one party is self-represented, and the importance of timely disclosure of evidence in family law matters.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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