Kouper and Kouper (No 2)

[2009] FamCA 821

FAMILY COURT OF AUSTRALIA

KOUPER & KOUPER (NO. 2) [2009] FamCA 821

FAMILY LAW – PROPERTY – Interim

APPLICANT: Mr Kouper

RESPONDENT: Ms Kouper

FILE NUMBER: SYF 2332 of 2006

DATE DELIVERED: 1 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 September 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Batey, counsel

SOLICITOR FOR THE RESPONDENT: Humphreys & Feather Solicitors

Orders

1. Orders 1 and 2 of the application in a case filed 24 August 2009 be dismissed. 

2. Leave be granted to the husband, his sister M Kouper or any legal representative appointed by the husband to photocopy any application, response, any affidavit or financial statement that has been filed in the matter.

3. The application the husband has made to have the final hearing postponed be dismissed and I confirm that the matter will commence at 10:00am on 7 September 2009.

4. The costs of today be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Kouper & Kouper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2332 of 2006

MR KOUPER

Applicant

And

MS KOUPER

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the husband has filed an application in a case on 24 August 2009, seeking orders that an amount of $25,000 be paid to him from the controlled monies account and that a further amount of $12,852.27 plus an amount for interest be paid from the controlled monies account to Ms Rachel Wallbank.  The purposes of those payments is to put the husband in a position where he says he will then be able to employ lawyers to conduct the final hearing of the matter for him or on his behalf commencing on 7 September 2009. 

2. The matter is listed to commence on 7 September 2009.  The wife has today sought leave to file an affidavit in Court.  I granted that leave.  I have been through that affidavit with the husband and there is no significantly controversial material in that affidavit.  The affidavit does annex a copy of my ex tempore reasons for judgment which I delivered on 20 May 2009, and in those reasons I gave an explanation as to why it is that no further interim costs order could be made in this case in favour of the husband. 

3. Nothing of significance has changed since I gave those reasons and accordingly I dismiss applications 1 and 2 filed on 24 August 2009.

4. Application 3 is only an application made in the event that the husband was successful in the orders that he sought in orders 1 and 2, and therefore that application does not need to be dealt with.

5. Application 4 sought by the husband, seeks that in the event that he is unsuccessful in obtaining orders 1 and 2 (and he has been unsuccessful) that the final hearing be postponed until a suitable legal representative and barrister are found who do not require “up front” fees in trust to act for him

6. On the material the husband has filed, it appears that his former solicitors, Wallbanks cease to act for the husband at the end of May, and in fact, the husband filed a notice of address for service setting out his address for service.  The husband filed a notice of address for service on 26 May 2009. 

7. Accordingly, from the material that I have the husband has been aware that he has been without legal representation since 26 May 2009.  His evidence is that he’s been unable to find a lawyer to act for him in between then and now.

8. His application is in effect that I stand the matter over generally until he is able to obtain some lawyer who is prepared to act for him and present his case in court on a contingency basis.  He’s found a lawyer who is prepared to act for him on a contingency basis but is not prepared to appear as advocate, and that lawyer has asked for $20,000 in order to secure counsel for that purpose. 

9. There is nothing that would give me any confidence that if I stand the matter over and vacate the hearing date, that the husband will be any more successful in obtaining a lawyer on a contingency basis than he has been between May and this date. 

10. That brings me to this situation, that the husband would then, as I indicated to him on 20 May 2009, be required to present his own case. 

11. The husband has filed two documents from practitioners.  The first seems to be a treating psychiatrist, Dr G. Dr G on 17 August 2009 said “this is to certify that due to a medical condition, [the husband] is no [sic] able to represent himself in court”. 

12. There is another document from somebody who describes herself as a doctor, but apparently a doctor of clinical hypnotherapy, who is a treating practitioner who expresses the opinion that the husband does not have the fortitude or the emotional stability to represent himself in court and needs legal representation. 

13. As I have already indicated, there is no immediate or even medium term prospect that the husband will get legal representation.  The wife has waited a long time to have her case heard, it’s been set for a long period of time, and she is entitled to not have that expectation dashed if there is a way of moving forward. 

14. The husband appears today with his sister, M Kouper, who has said a few things and appears to be well and competent.  The indication has been given by counsel for the wife that there would be no objection to the husband’s sister assisting the husband in the presentation of paperwork and presentation of his case.  I have also indicated to the husband that the trial judge has an obligation to assist a litigant in person in the presentation of their case, within guidelines set out by the Full Court. 

15. I take into account that a large amount of money has been spent on legal fees in terms of preparing material.  I have indicated to the husband and to the husband’s sister that the Court file will be available in the exhibits section and I grant leave to them and to any lawyer who is instructed by the husband, to photocopy any application, response or any affidavit or financial statement that has been filed in the matter.  I do that on the basis that I accept that Ms Wallbank is exercising a lien over the material that she has in her file and that the husband is unable to access that material because he is unable, as of today to make a payment to Ms Wallbank in relation to her fees.

16. For those reasons, I dismiss the application the husband has made to have the final hearing postponed and I confirm that the matter will commence at 10:00am on 7 September 2009.

17. I will reserve costs of today.

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate:  

Date:  3.9.2009