Kirke and Xuan and Anor
[2019] FamCA 537
•8 August 2019
FAMILY COURT OF AUSTRALIA
| KIRKE & XUAN AND ANOR | [2019] FamCA 537 |
| FAMILY LAW – LITIGATION GUARDIAN – case adjourned on the third day of trial – those costs thrown away – ordered previously to be paid on a date to be determined this day – date for payment ordered – other interlocutory orders made – costs of this day reserved – liberty to apply. |
| Family Law Act 1975, s 117(2A) |
| Krnjic v Bunnings Group Ltd (2018) 334 FLR 168 Vishniakov v Lay [2019] VSC 403 |
| APPLICANT: | Ms Kirke |
| FIRST RESPONDENT: | Ms Xuan |
| SECOND RESPONDENT: | Ms Moye |
| FILE NUMBER: | MLC | 8183 | of | 2015 |
| DATE DELIVERED: | 8 August 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 8 August 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr D Carne |
| SOLICITOR FOR THE APPLICANT: | WMB Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr G P Thompson |
| SOLICITOR FOR THE FIRST RESPONDENT: | Nevett Ford |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr D Carlile |
| SOLICITOR FOR THE SECOND RESPONDENT: | Unite Legal |
Orders
The husband provide to the solicitors for the wife copies of statements for the following accounts in the specified date ranges within seven days of these orders –
(a) CBA Business transaction account …11 from 11 November 2014 to 30 September 2015 and 1 April 2016 to 30 June 2016;
(b) CBA Kirke Pty Ltd account …18 from 11 February 2014 to 23 September 2015;
(c) CBA account …28 from 1 January 2014 to 20 May 2015 and 1 March 2016 to 30 June 2016;
(d) B Bank – Kirke2 Pty Ltd account 212160729 from 23 June 2012 to 22 June 2015;
(e) CBA credit card …47 from 12 November 2014 to 11 September 2015;
(f) B Bank – Kirke3 Pty Ltd atf Kirke Super Fund Account …61 from 26 September 2012 to 30 September 2015;
(g) account ending in #...21 from 1 January 2014 to 31 December 2016; and
(h) account ending in #...28 from 1 January 2014 to 31 December 2016.
The wife is to provide to the solicitors for the husband copies of the documents sought in the notice to produce pertaining to the wife filed by the husband on 8 August 2019 within seven days of these orders.
The second respondent is to provide to the solicitors for the husband a copy of the enduring power of attorney held by Ms Kirke on behalf of the second respondent within seven days of these orders.
The parties are to otherwise produce all financial documents as may be reasonably requested by another party in writing within seven days of such request and in the event that the party maintains that such documents have allegedly been produced then they shall confirm the date of production and provide to the requesting party a copy of the relevant covering correspondence.
The parties are to do all acts and things and sign all documents necessary to instruct C Lawyers solicitors to continue requesting the funds held in trust by that firm (upon the maturation of the current term deposits) in thirty day term deposits pending further written agreement between the parties or order of the court.
Ms Kirke is to be appointed as the case guardian in this matter for the second respondent, Ms Moye.
The wife’s application in a case filed on 5 August 2019 is dismissed.
All extant applications are adjourned to 10am on 12 September 2019.
On or before 4pm on 28 August 2019 the second respondent is to file and serve any further affidavits.
On or before 4pm on 9 September 2019 the applicant and first respondent are to file and serve any further affidavits in response to the second respondent’s affidavit.
On or before 4pm on 22 August 2019 the second respondent is comply with order 6 of the order made on 13 June 2019 and pay the applicants costs thrown away in the sum of $10,672.40.
The parties’ costs of this day are reserved.
Each party has liberty to apply.
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 Kirke & Xuan and Anor 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 MELBOURNE |
FILE NUMBER: MLC 8183 of 2015
| Mr Kirke |
Applicant
And
| Ms Xuan |
First Respondent
And
| Ms Moye |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
I will make orders by consent in accordance with the minute that each party has signed which I direct be placed on the court file and be authenticated.
In respect of what has taken up most of the day, namely the debate about payment of the orders made pursuant to paragraph 6 of the orders 13 June 2019, on behalf of the applicant, Mr Carne sought a collection of orders requiring that amount to be paid by a particular date, although he seemed to be reasonably flexible about the precise date for the payment of it.
In addition, he sought an order in the nature of a guillotine order to the effect that unless the amount was paid by the date ordered then the second respondent was restrained from further participating in this proceeding. I decline to make that order. That would orchestrate undue hardship in the further conduct of the case. This case must continue. It has been fixed to resume on a date in September and resume it will.
It therefore became a question not so much as to whether the amount should be paid, because it has been previously ordered to be paid, the only debate being the date by which it will be paid. Orders were made on 13 June 2019 for its payment, the second respondent knowing of her liability to make that payment. She also knew that a determination was to be made today about the date on which the sum is to be paid.
It seemed to me that the amount previously ordered stands outside of the pool of assets to be divided under s 79. Despite the superficially seductive nature of Mr Carlile’s submissions about the fact that the sum of $10,672.40 will be in some way adjusted from the amount to be divided in the broader division of assets in this case, the precise sum ordered by paragraph 6 of my 13 June 2019 orders represents a separate and discrete monetary amount that has been ordered to be paid by reason of the matters that s 117(2A) of the Family Law Act addressed.
On 13 June I was satisfied that a costs-thrown-away order was appropriate in the circumstances. That amount as a separate standalone amount must be paid irrespective of the way the assets are divided in this case. That being the finding, the only issue was the date by which it was to be paid. It seemed to me that the date suggested by Mr Carne of 15 August 2019, being a week from today, was unduly short as to be harsh. But the fact of the matter is the amount must be paid and it must be paid within reasonable contemplation of the date ordered.
In my view the sum ordered pursuant to paragraph 6 of my orders 13 June 2019 should be paid by the second respondent on or before 4 pm on 22 August 2019. As to the extent to which the litigation guardian is somehow implicated in the further conduct of this case I have written about the subject in Krnjic v Bunnings Group Ltd.[1] The Honourable Associate Justice Derham has also written about the matter in Vishniakov v Lay.[2] I commend both to the attention of counsel in this case.
[1] (2018) 334 FLR 168
[2] [2019] VSC 403
Debate about the costs of today was resolved by my determination of, predominantly, two things. One is the ongoing resolution of outstanding matters. Orders were made to advance those interlocutory issues. Ordinarily, given that orders have been made for all parties to do certain things, those costs would simply be costs in the cause. But by force of the structure of the Family Law Act, all parties usually bear their own costs. So unless someone separately seeks orders as to the debate today I will simply reserve the costs of today.
On top of the order that I have made as to the payment by 22 August, there will be liberty to apply.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 8 August 2019.
Associate:
Date: 13 August 2019
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