Kipling & Netis
[2020] FamCAFC 79
•8 April 2020
FAMILY COURT OF AUSTRALIA
| KIPLING & NETIS | [2020] FamCAFC 79 |
| FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the husband filed an Application in an Appeal to adjourn the hearing of his Application to reinstate his appeal – Where the husband’s legal representatives withdrew just prior to the hearing date – Where the husband seeks documents pertaining to the wife’s payment of legal fees which he contends are critical to his appeal – Where the wife initially agreed to provide those documents but subsequently withdrew her agreement – Where the wife now consents to produce those documents – Where the parties ought be permitted to provide further written submissions – Where the circumstances of the case justify an adjournment of the hearing. |
| Family Law Act 1975 (Cth) s 93A(2) Family Law Rules 2004 (Cth) rr 8.04, 13.07A, 15.76, 19.04, 22.21 |
| Duarte & Morse [2018] FamCAFC 69 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Sadek & Hall (2015) FLC 93-634; [2015] FamCAFC 23 |
| APPLICANT: | Mr Kipling |
| RESPONDENT: | Ms Netis |
| FILE NUMBER: | TVC | 809 | of | 2015 |
| APPEAL NUMBER: | NOA | 62 | of | 2019 |
| DATE DELIVERED: | 8 April 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 24 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 June 2019 |
| LOWER COURT MNC: | [2019] FamCA 363 |
REPRESENTATION
| THE APPLICANT: | Self-represented via telephone |
| COUNSEL FOR THE RESPONDENT: | Mr Lake via telephone |
| SOLICITOR FOR THE RESPONDENT: | Roberts Nehmer McKee Solicitors |
Orders Made on 24 March 2020
IT IS ORDERED BY CONSENT:
The respondent wife produce to the applicant husband the following documents by 4.00pm on 27 March 2020:
(a)A complete Trust Account Statement from the date of the commencement of the Respondent wife’s solicitor’s instructions from the respondent wife to the date of providing that Statement to the Applicant husband;
(b)Copies of all Invoices sent by the Respondent wife’s solicitors to the Respondent wife;
(c)Copies of all Receipts issued by the Respondent wife’s solicitors to the Respondent wife;
(d)Copies of all Invoices and Receipts issued to or received by the Respondent wife’s solicitors for work or matters usually described as “outgoings” undertaken on behalf of the Respondent wife from the date of commencement of their instructions from the Respondent wife to the date of providing those documents to the Applicant husband;
(e)Copies of all Invoices and Receipts issued to or received by the Respondent wife’s solicitors from any and all Counsel engaged by the Respondent wife’s solicitors on behalf of the Respondent wife from the date of commencement of their instructions from the Respondent wife to the date of providing those documents to the Applicant husband;
(f)Confirmation of the value of all outstanding and unpaid “Work in Progress” undertaken by the Respondent wife’s solicitors on behalf of the Respondent wife as at the date of providing the documents to the Applicant husband; and
(g)Confirmation from the Respondent wife’s solicitors of any debt or outstanding monies owed by the Respondent wife to them including the date that such debt/outstanding amount arose.
IT IS FURTHER ORDERED:
The Respondent wife provide to the Applicant husband by 4.00pm on 27 March 2020 a statement specifying the source of funds for the costs paid or to be paid by the Respondent wife as set out in r 19.04(5) of the Family Law Rules 2004 (Cth).
The Applicant husband be restrained from using or relying on the documents produced by the Respondent wife pursuant to these Orders in any capacity or for any purpose other than for the prosecution of the Application in an Appeal to reinstate his appeal and, if successful, his Notice of Appeal filed 3 July 2019.
The time specified in Order 2 of the Orders made on 11 December 2019 be extended such that the Applicant husband shall file and serve any written submissions by 4.00pm on 14 April 2020.
The Applicant husband’s written submissions referred to in Order 3 herein be limited to no more than 15 pages in length and be confined to only those issues relevant to the Court’s consideration of the Application in an Appeal to reinstate his appeal.
The Respondent wife be permitted to file any written submissions in response, likewise limited to no more than 15 pages in length, by 4.00pm on 21 April 2020.
The Application in an Appeal filed on 9 December 2019 be adjourned for further hearing to 10.00am on 30 April 2020.
The parties be granted leave to appear via telephone at the hearing on 30 April 2020.
The Respondent wife’s costs of and incidental to today’s hearing be reserved.
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 Kipling & Netis 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 62 of 2019
File Number: TVC 809 of 2015
| Mr Kipling |
Applicant
And
| Ms Netis |
Respondent
REASONS FOR JUDGMENT
On 3 July 2019, Mr Kipling (“the husband”) filed a Notice of Appeal from final property adjustment Orders made by a judge in the Family Court of Australia. However, that appeal was deemed abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”) consequent upon the husband’s failure to file and serve the Appeal Book by 29 November 2019.
On 9 December 2019, the husband filed an Application in an Appeal to reinstate that appeal. It is that Application, along with an Application in an Appeal for an adjournment that I will turn to shortly, which came before me on 24 March 2020. I made Orders on that day adjourning the hearing, providing for disclosure of material and the filing of further written submissions. I also indicated that I would provide my reasons for making those Orders in due course. These are those reasons.
I interpolate here, however, that administrative issues required subsequent Orders to be made by me in chambers on 30 March 2020 which operated for the Court, on its own motion, to vacate the listing of this matter provided for in the 24 March 2020 Orders such that it is now adjourned to a date to be fixed. The vacation of the listing was associated with the current climate and difficulties surrounding the COVID-19 pandemic.
Brief background
Central to the husband’s challenges on appeal, should such appeal be reinstated, is his contention that the trial judge failed to properly consider Ms Netis’ (“the wife”) ability to pay significant sums by way of legal fees when it was her position before the trial judge that her financial circumstances were poor. Essentially, the husband seeks to agitate on appeal that the trial judge erred by failing to properly consider whether the wife had an undisclosed income source or financial resource allowing her to pay significant legal fees.
Of course, to mount the argument on appeal, the husband would need to succeed on an application to adduce the documents, if relevant, as further evidence on appeal pursuant to s 93A(2) of the Act.
Without expressing a view as to the legitimacy or otherwise of the husband’s contention, or the prospects of a further evidence application, its relevance to this adjournment is that, as set out in the husband’s affidavit filed in support of his Application to reinstate, the husband has been attempting to obtain disclosure from the wife of documents relevant to her payment of legal fees since December 2019. Such request for disclosure was, initially, agreed to by the wife indicating, as late as 12 March 2020, that she would provide the documents at the hearing on 24 March 2020. However, by email dated 20 March 2020, the wife indicated her altered position to the husband that his request for disclosure was erroneously sought under r 15.76 of the Rules which does not apply to an appeal (see Duarte & Morse [2018] FamCAFC 69).
Importantly, however, the husband who was until only just before the hearing legally represented, was given notice four days before the hearing that the requested documentation, which is, on the husband’s case, essential, would no longer be provided.
Disclosure of documents
In the event, in the course of the hearing the wife ultimately agreed that she would provide the documentation to the husband on the condition that an order be made restraining the husband from using those documents in any litigation outside these proceedings. The husband opposed such a restraint. However, in my judgment, given the husband openly acknowledged before me that his intention was to also use those documents in ongoing child support litigation, it is necessary that an injunction be made restraining the husband from utilising the disclosed documents for any purpose outside these proceedings.
It is a well settled principle that documents produced in discrete proceedings cannot be used for an ulterior motive. (see, for example, r 13.07A of the Rules; Hearne v Street (2008) 235 CLR 125 at [96]; Sadek & Hall (2015) FLC 93-634 at 80,095).
In addition to those documents, the husband sought evidence disclosing the source of the funds used to pay the wife’s legal fees. The wife opposed an order requiring her to provide such evidence. However, at the hearing, I enquired of the wife’s counsel whether r 19.04 had been complied with at trial. That is, whether the parties had provided a written notice of their costs, both actual and estimated future costs and expenses (see r 19.04(2)) and, as is required by r 19.04(5), whether the parties had advised each other on the source of the funds used to pay those costs.
I was informed by the wife’s counsel that neither party had complied with that rule. Under those circumstances, as it seems to me, there is no reason the wife could legitimately resist an order requiring her to reveal the source of the money used to pay her legal fees when such disclosure was mandated, albeit not complied with, by the Rules at trial. That is to say, had the wife complied with her obligations under the Rules at the relevant time, the information which she now opposes revealing would already be known by the husband.
It is against that factual background that I will explain the reasons for the adjournment and indulgence granted in respect of filing written submissions.
Adjournment of the hearing
Even though the above discussed issues surrounding the production of documents would suffice in justifying an adjournment, further observations ought be made on the husband’s Application.
The Application in an Appeal for an adjournment, referred to above, was filed by the husband on 23 March 2020. In his supporting affidavit, the husband deposes to learning on 6 March 2020, for reasons which are not relevant here, that he no longer had legal representation. Consequently, the husband emailed the Appeals Registry on 16 March 2020 seeking an administrative adjournment of the 24 March 2020 hearing and was advised that he would need to file a formal application.
The husband further deposes to only learning, subsequent to his solicitor’s withdrawal, that he had been required to file a Summary of Argument by no later than 20 December 2019.
On 20 March 2020, only four days prior to the hearing, the husband’s legal representatives informed the Appeals Registrar they no longer acted and sought leave to withdraw. Pursuant to r 8.04 of the Rules, the husband’s legal representatives were advised that they were required to attend the hearing to seek leave as their notification of withdrawal had come sooner than seven days prior to the listed hearing. However, no one from that firm appeared on 24 March 2020.
In my judgment, such late withdrawal of legal representation would also be sufficient to warrant an adjournment of the hearing to enable the newly
self-represented litigant a proper opportunity to engage with the material already filed and thereby be in a position to properly argue his case.
That aspect is also supported by the circumstances of the disclosure of documents referred to above and the preference for parties, particularly
self-represented parties, to confine their argument to a written document to better assist the Court. The wife could not raise any issues of prejudice by the proposed course given she consented to disclosing certain documents and has also been given the opportunity to respond to the husband’s written submissions in writing, should she consider such reply appropriate.
I should also note that the mere production of these documents does not, in any way, lend support to or detract from the husband’s Application in an Appeal to reinstate his appeal. Moreover, it is not to be assumed that any documents produced will be received by the Court; such receipt is, as always, subject to arguments on relevance and probative value, and the requirements for the Court to exercise discretion to receive further evidence on appeal.
It is for these reasons that I made the orders pronounced on 24 March 2020 and set out at the commencement of these reasons.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 April 2020.
Associate:
Date: 8 April 2020
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