Kappas and Kappas (No.2)

[2016] FCCA 1854

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPPAS & KAPPAS (No.2) [2016] FCCA 1854

Catchwords:
FAMILY LAW – Ongoing non-compliance by the husband with order for disclosure – conciliation conference aborted – costs.

Legislation:

Family Law Act 1975, s.177(2A)

Cases cited:

Black & Kellner (1992) FLC 92-287

Weir v Weir (1993) FLC 92-338

Applicant: MS KAPPAS

Respondent: MR KAPPAS

File Number: MLC 7430 of 2015

Judgment of: Judge Harland

Hearing date: 14 July 2016

Date of Last Submission: 14 July 2016

Delivered at: Melbourne

Delivered on: 14 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Renwick

Solicitors for the Applicant: Kennedy Guy

The Respondent: In person

ORDERS

1. Within 21 days the husband file an affidavit setting out the efforts he has made to comply with Order 15 of the Orders made 19 April 2016 and produce each of the documents and annexing the documents he does have in his control and possession.

2. In that affidavit, the husband outline what efforts he has made to produce each of the documents sought and annex the documents he has in his possession.

3. If the husband fails to comply with Orders 1, then the hearing will procced on 7 September 2016 on an undefended basis.

4. The husband pay the wife’s costs fixed in the sum of $930.00, such costs to be payable within 21 days.

AND THE COURT NOTES THAT:

1. The Conciliation Conference could not be conducted today because of the husband’s failure to comply with Order 15 of the Orders made 19 April 2016.

IT IS NOTED that publication of this judgment under the pseudonym Kappas & Kappas (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7430 of 2015

MS KAPPAS

Applicant

And

MR KAPPAS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The conciliation conference could not be conducted today because of the husband’s failure to comply with orders 4 and 15 of the orders made on 19 April 2016 as well.  I have explained to the husband his obligations with respect to disclosure and note that this is not the first time that this matter has been brought before me because of the husband’s noncompliance. In this regard, I refer to the orders and judgment I made on 15 February 2016. 

3. It is significant to note the matter was listed for an undefended hearing on 19 April 2016 but then the husband attended and filed documents.  The husband needs to appreciate – and if he is unsure he should get independent legal advice – that there are serious consequences when parties do not meet their obligations for full and frank disclosure, which is a positive obligation on each of the parties.  The authorities of Black & Kellner (1992) FLC 92-287 and Weir v Weir (1993) FLC 92-338 make it very clear that if the Court is satisfied that there has been deliberate nondisclosure the Court need not be unduly worried about being generous to the other party because it would not be possible to establish accurately what the property pool is. He will not be permitted to produce documents just before or at the final hearing. This Court does not conduct trials by ambush. The husband complains that many of the documents he has been ordered to produce are joint accounts. That is not the case.

4. I am going to make an order for the husband to address in an affidavit specifically every item that he has been ordered to produce.  I am going to give the husband 21 days to do that.  If he does not file that affidavit, which must have an explanation as to what effort he has gone to get the required documents and identifying the documents he does not have, then the matter will proceed on an undefended basis without the husband’s participation.

5. The husband has been disruptive today.  He has lost his temper, has sworn in Court and behaved in a manner that is unacceptable and will not be tolerated. I am not going to order another conciliation conference because there is no point. The husband says he wants his day in Court. He is on clear notice and will be given that opportunity if he complies with the orders which clearly list the documents he is required to produce and if he is not disruptive to the Court process. It is his choice as to whether he participates or not.

6. The applicant makes an application for costs in the sum of $930 for the wasted court conciliation conference today.  I note that the husband was in Court in person on the last occasion when orders were made requiring him to produce these documents, as well as other orders for the preparation of the conciliation conference and the hearing.  The husband was warned on the last occasion that if he did not comply with orders then the matter may proceed to an undefended hearing.

7. I am satisfied that the conciliation conference has not been able to proceed because of his failure to comply with that order. The purpose of the conciliation conference is for the parties to be able to have meaningful settlement discussions. That is not possible without there being disclosure so the conference has not been able to serve its purpose, wasting precious court resources and it has also been necessary to bring the matter before me this morning to deal with it, rather than dealing with the other hearing that I have. I am satisfied that there are justifying circumstances pursuant to section 117(2A) of the Family Law Act 1975 (Cth) to make an order for costs. The wife seeks costs in the sum of $930.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 20 July 2016