Kapoor & Kapoor (No 4)
[2025] FedCFamC2F 619
•6 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kapoor & Kapoor (No 4) [2025] FedCFamC2F 619
File number(s): SYC 7947 of 2022 Judgment of: JUDGE STREET Date of judgment: 6 May 2025 Catchwords: FAMILY LAW – Stay of proceedings until 2 pm – oral application for an adjournment - adjournment granted – matter listed part heard. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 15 Date of hearing: 5 May 2025 and 6 May 2025 Place: Sydney Counsel for the Applicant: Ms K Beck Solicitor for the Applicant: Fox & Staniland Lawyers Counsel for the Respondent: Ms M McMahon Solicitor for the Respondent: Marsdens Law Group Counsel for the Independent Children's Lawyer: Mr T Iuliano Solicitor for the Independent Children's Lawyer: Gordon and Barry Lawyers Pty Ltd ORDERS
SYC 7947 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAPOOR
Applicant
AND: MR KAPOOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 MAY 2025
THE COURT ORDERS THAT:
1.The Court adjourns the proceeding being the parenting and property, part heard to commence at 10:00 am on 17 November 2025 if necessary, via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth), and to continue until the 21 November 2025
2.The Court directs any party alleging that there is a new issue that has arisen prior to the next adjourned hearing date must file and serve any affidavit in respect of that new issue, 21 days prior to the adjourned hearing date.
3.The Court directs any party affected by an alleged new issue must file and serve any affidavit 14 days prior to the adjourned hearing date.
4.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
5.The Court directs the parties and ICL to consult in relation to a proposed joint tender bundle to be provide to Dr C 28 days prior the adjourned hearing date, and if parties are unable to agree, each party and the ICL is to provide a separate proposed tender bundle to Mr C, 28 days prior to the adjourned hearing date.
6.The court directs any party or the ICL to file and serve a list of any objections in respect of Exhibits B and D, 7 days prior to the adjourned hearing date.
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 STREET
These proceedings were stood down till 2 pm today following dismissal of an oral application for recusal. The Court heard and adversely determined an application for a stay of the proceedings in relation to a proposed appeal. That oral application for a stay gave rise to orders by this Court that met the criteria under rule 13.12(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the rules”) insofar as the applicant mother (“the mother”) had been desirous of approaching an Appellate Court for a stay. The Court was informed at 2 pm that the mother took the view that she could not apply for a stay because there was no step that had been taken under r 13.12(3) of the rules. That was a complete misunderstanding of the nature of what had occurred by this Court and paid no regard to the orders that this Court had entered up and provided reasons for.
The ICL suggested that there was a similar problem, which, as it is identified, reflects a misunderstanding of the ruling that this Court made. This Court gave the mother and the ICL an opportunity, if they wished, to make an oral application to an Appellate Judge of Division 1 for a stay of this Court's orders in respect of the continuation of the proceedings by 2 pm today. No such oral application was made by the mother or the ICL. Ms Beck, on behalf of the mother, wished to contend that she had made an application for a stay, until the determination of the appeal. The language of that formula in respect of the stay does not take it outside the scope of what was determined by this Court in refusing a stay until 2 pm. It was patently clear to all parties including the ICL that the case was going to continue at 2 pm and that the Court had refused a stay.
The Court has been informed that the mother has filed a notice of appeal. The filing of the notice of appeal does not, on the face of the rules, operate as a stay. It is ordinarily not the case that the Court lightly grants a stay of proceedings. The Court is of the view that it is in the best interests of the child and in accordance with the principles identified in s 69ZM of the Family Law Act 1975 (Cth) (“the Act”) and s95 of the Act for the proceedings continue to their conclusion.
The issues in the present case do not reflect the complexity of issues of a kind often faced by this Court. The value of the property in issue is at almost the smallest end considered by this Court. Such property matters are often determined by a Registrar. Ms Beck asked on more than one occasion for an indication as to whether her application for a stay until the determination of the appeal had been dismissed. It follows from the orders earlier made and entered up on the Court portal that the only stay that was granted was one until 2 pm today, and that Ms Beck's application for any broader stay had been unsuccessful.
Ms Beck then identified to this Court that she wished to seek an adjournment of the proceedings until the determination of the appeal. The substance of that application, which was supported by the ICL, was, in the same effect as the order that this Court had earlier refused. But for the issues raised by the ICL and by the respondent father (“the father”), the Court may well have taken the view that the application for an adjournment should also be refused.
Mr Iuliano on behalf of the ICL raised a new issue that had arisen shortly before lunch coming to the attention of the ICL, that Dr C would no longer be available to give evidence tomorrow, identifying an issue in respect of payment for his report. While it was not beyond all possibility for the potential for resolution of the proceedings consensually or by the Court by the end of tomorrow if Mr C had been available, the new issue raised by Mr Iuliano on behalf of the ICL identifies a real prospect that the proceedings have no real likelihood of being able to conclude tomorrow because of the absence of Mr C insofar as the parenting issues remain contested.
Ms McMahon on behalf of the father identified a new proposition that the position that she had earlier taken in terms of neutrality was in part because she had not had the benefit of seeing the transcript. The Court identified in its reasons that the characterisation of the conduct identified by both Ms Beck and Mr Iuliano was erroneous and did not reflect what in fact had occurred, as identified in the Court's reasons refusing the recusal application. Sadly, of late, there has been a significant delay in the provision of transcripts. It is unlikely that the transcript would be provided by tomorrow. Ms McMahon's identification of a concern as to the content of the transcript in respect of her position means that there may have been, or that there may be an alteration of the position taken by the father following the review of the transcript. That of itself is not a matter that gives rise to a different position in terms of the orders that have already been made, but it is a new factor to be weighed in the request for an adjournment advanced by Ms Beck and supported by Mr Iuliano, given the notice of appeal that has been filed.
This Court's next available hearing time for the part-heard matter, given that the Court was informed it will take four to five days, is on 17 November 2025 until 21 November 2025.
It is patent that this Court has refused to grant a stay pursuant to r 13.12 of the rules, and re-fixing the matter for 17 November 2025 provides ample time for either an application for a stay and/or expedition to an Appellate Judge of Division 1. There is also a real possibility that an Appellate Judge of Division 1 may well hear the matter and determine it prior to 17 November 2025. This Court has no earlier dates that it can provide in respect to these proceedings, and taking into account the best interests of the child and the principles identified in s 69ZN of the Act and s95 of the Act, it is appropriate to have the matter given a further fixed hearing date at which the part-heard matter can continue.
The Court is confident that any Appellate process will be able to be activated prior to that date, and if indeed a stay of these Court’s orders granted. That stay by a Division 1 Judge will take precedence over the orders made for a future hearing date by this Court. The Court is, however, mindful of the fact that the matter is part-heard and wishes the matter to proceed efficiently and effectively at the part-heard hearing date to try and conclude the parenting and property issues that remain in dispute between the parties.
The Court does note that a balance sheet was belatedly provided, which the Court had intended to have marked as an exhibit. It may well be that the parties are able to further narrow the differences between themselves in respect of that balance sheet, and for that reason, I do not propose to mark it as an exhibit today. It will be a matter to be determined at the future hearing on 17 November 2025. The Court otherwise heard the parties in relation to appropriate directions to continue the part-heard matter and facilitated the means of limited affidavit evidence in respect of any new issue and response to that, as well as the provision of material to Mr C. It remains the position that the Court is hopeful that the parties, with the benefit of the objective and independent views of the legal representatives, may be able to resolve the issues raised by both the parenting and the property matters.
The Court has made an order granting leave to the parties to provide consent orders to be made in Chambers if appropriate. That clearly includes an opportunity, if the parties do achieve some resolution, to have proposed consent orders in either matter if agreed made in chambers without further costs being incurred if appropriate. If there becomes an issue, as was raised by the ICL, of the convenience of Mr C in respect of the future hearing date that has been fixed, the Court would expect that to be raised promptly so that a fresh convenient hearing date can be allocated. The Court would expect the parties to consult in that regard and provide proposed short minutes that identify the agreed range of dates for Counsel and the ICL accommodating Mr C if it were necessary to have a different date.
There was reference made to the unpaid invoice of Mr C, and the Court was informed that one party had funds in a trust to attend to the same. The Court does not propose to make a formal direction about the expert’s invoice. However, s 95 of the Act requires the parties to cooperate in relation to the conduct of the proceedings and that is a sufficient obligation to attend to the same.
The Court did contemplate whether it could continue and conclude the evidence of the mother. However, Ms McMahon identified a preference for that course not to be followed due to the reasons she identified in respect of not having seen the transcript. The Court is conscious of the fact that the mother remains the subject of cross-examination in respect of the adjourned hearing date. However, the Court has made clear to the parties and the ICL that the mother is free to give instructions in respect of the parenting and property proceedings and is free to address any new matter if it arises. It is regrettable that the time set aside by this Court could not be used otherwise in these proceedings this afternoon and tomorrow.
It is for these reasons the Court makes the above orders.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 14 May 2025
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