Kelby and Kelby

[2020] FamCA 815

FAMILY COURT OF AUSTRALIA

KELBY & KELBY [2020] FamCA 815

FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen – Where the final hearing has concluded and judgment is reserved – Where the applicant wife made an oral application to reopen the case to be granted leave to explore whether or not she could adduce further evidence about the respondent husband’s health and life expectancy – Where the evidence the wife relies upon in support of her application is third-hand hearsay – Where the husband disputes the evidence – Where the husband is prejudiced by the wife’s application to reopen – Application dismissed.

Family Law Act 1975 (Cth) s 75

Reid v Brett [2005] VSC 18

APPLICANT: Ms Kelby

RESPONDENT: Mr Kelby

FILE NUMBER: SYC 8071 of 2014

DATE DELIVERED: 25 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 7 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fernon

SOLICITOR FOR THE APPLICANT: Yates Beaggi Lawyers

COUNSEL FOR THE RESPONDENT: Ms Gillies, SC

SOLICITOR FOR THE RESPONDENT: McGirr Lawyers

Orders

1. The wife’s oral application made 7 August 2020 to reopen the case is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelby & Kelby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8071 of 2014

Ms Kelby

Applicant

And

Mr Kelby

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed, part heard, on 7 August 2020 for the purpose of hearing, if necessary, further expert evidence and receiving any further submissions in reply by the husband. The experts agreed and no further evidence from them was required and the husband elected to make no further submissions. In those circumstances I reserved my decision in respect of the substantive hearing.

2. On 7 August 2020 the wife was given leave to make an oral application to reopen the case in circumstances where the final hearing had concluded but judgment had not been delivered. The subject of that hearing was competing applications for property settlement orders. Those proceedings had commenced in December 2014 and have had a protracted history.

3. An email sent by the solicitors for the wife at 12.31 pm on 5 August 2020 read in part:

   …we are yesterday instructed that the Respondent Husband in presently in U Hospital and that his condition might be terminal. We understand (informed by a conversation between the parties Daughter, Ms Y, and the Respondent's present partner, Ms V) that the prognosis is for amputation of…