Kramer & Kramer
[2023] FedCFamC2F 221
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kramer & Kramer [2023] FedCFamC2F 221
File number(s): ADC 1303 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 3 March 2023 Catchwords: FAMILY LAW – PROPERTY – LITIGATION FUNDING – interim proceedings – provision of funds held in trust for litigation expenses – application of costs power under section 117 – where the wife seeks a sum of $120,000 on account of legal costs and disbursements – where the husband seeks that each party receive $50,000 for the same – where the wife has failed to provide evidence of Retainer Agreement with her solicitors – where the wife has failed to properly plead the final orders sought at Trial – review of authorities – held, that the amount sought by the wife is not just- orders for litigation expenses made as sought by the husband. Legislation: Family Law Act 1975 (Cth) ss 79, 117 Cases cited: Atkins & Hunt [2018] FamCA 14
Charisteas & Charisteas [2022] FedCFamC1A 160
In the Marriage of Zschokke (1996) 20 Fam LR 766
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Quayle v Perceval [2018] FamCA 664
Rakete & Rakete [2012] FamCA 267
Salvage & Fosse [2020] FamCAFC 144
Selena & Montez and Ors [2017] FamCA 583
Strahan v Strahan (2009) 42 Fam LR 203
Verdon & Verdon [2020] FamCA 824
Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 21 February 2023 Place: Adelaide Counsel for the Applicant: Mr Heinrich Solicitor for the Applicant: Mildwaters Lawyers Counsel for the Respondent: Mrs Read Solicitor for the Respondent: Lindbloms Lawyers ORDERS
ADC 1303 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KRAMER
Applicant
AND: MR KRAMER
Respondent
order made by:
JUDGE DICKSON
DATE OF ORDER:
3 MARCH 2023
UPON NOTING:
A.The matter has been transferred to Division 1 on the basis that if the matter proceeds to final hearing, it is likely that it would take more than four (4) days of hearing time.
B.The parties will be contacted directly by the National Assessment Team confirming the transfer of proceedings and the next listing date.
C.The parties are in agreement that the sums referred to in paragraphs 1 and 2 herein are to be brought to account as assets to be retained by each of them at Trial.
THE COURT ORDERS:
1.That pursuant to section 117 of the Family Law Act 1975 (Cth) (‘the Act’) from the funds currently held in the Lindbloms Lawyers Trust Account pursuant to paragraph 1 of the Orders made by this Honourable Court on 1 February 2023, the sum of $50,000 be made available to the wife to be applied towards her legal costs and disbursements associated with these proceedings.
THE COURT FURTHER ORDERS BY CONSENT:
2.That pursuant to section 117 of the Act from the funds currently held in the Lindbloms Lawyers Trust Account pursuant to paragraph 1 of the Orders made by this Honourable Court on 1 February 2023, the sum of $50,000 be made available to the husband to be applied towards his legal costs and disbursements associated with these proceedings.
3.That the parties be restrained and injunctions be granted restraining each of them from receiving any of the funds referred to in paragraphs 1 and 2 herein personally and/or using any of the funds for any purpose other than the purpose of paying legal costs, including restraining the parties instructing their respective solicitors to deal with any of the funds contrary to paragraphs 1 and 2 herein.
4.That within seven (7) days the wife disclose by way of production all documents that she has, or once had, in her possession or power relating to the following matters:
(a)the personal debts of Mickey and the payments referred to in paragraphs 38 and 77 of the wife's affidavit filed on 17 August 2022;
(b)the advice referred to in paragraph 40 of the wife's affidavit filed on 17 August 2022; and
(c)the Retainer Agreements of the wife's current legal representatives (Solicitors and Counsel).
5.That all interim applications are hereby dismissed.
AND IT IS FURTHER ORDERED:
6.That Rule 3.01 of the Family Court and Federal Circuit Court of Australia (Family Law) Rules 2021 be dispensed with.
7.That pursuant to section 149 of the Family Court and Federal Circuit Court of Australia Act 2021 (Cth), these proceedings be transferred to Division 1 of the Federal Circuit and Family Court of Australia and are otherwise adjourned to a date to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kramer & Kramer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON
INTRODUCTION
These interim proceedings concern competing applications filed by each of the parties in relation to litigation funding, injunctions and discovery. The interim proceedings came before this Honourable Court for argument on 21 February 2023.
These are the Court’s reasons in relation to the argument heard that day.
BACKGROUND
The wife was born in 1961 and is aged 61 years. The husband was born in 1964 and is aged 59 years.
The parties commenced cohabitation in or around 2005 and were married in 2013.
The parties separated on a final basis on 15 August 2020.
There are no children of the relationship, however, the wife has three adult children of a previous relationship who are financially independent.
The Initiating Application was originally filed by husband on 28 March 2022. By way of final order, the husband seeks that the parties’ net non-superannuation assets be divided as to 85 per cent to him and the remainder for the wife and that there be no apportionment of the parties’ superannuation.
The wife seeks by way of final order in a Response to Initiating Application filed 17 August 2022 an unenforceable and unhelpful order that the parties’ assets, liabilities and superannuation be divided “in such terms and manner as the Court deems fit and appropriate.”
To date, the parties have been unable to resolve their property settlement and have declined the Court’s offer of a further Conciliation Conference. The parties now seek, following the conclusion of these interim applications, that the matter be set down for Trial.
The parties are in dispute over a range of issues including but not limited to the assets owned by each of them at the commencement of the relationship, their contributions during the relationship and their future needs. A major source of contention is the manner in which the Court should treat a gift of land made by the husband’s uncle, Mr B, during the marriage which the husband asserts resulted in a total benefit to the parties of $1,335,000. There is further disagreement in relation to an alleged informal property settlement agreed by the parties post separation which saw them retain real property in their own right. Arising from the alleged informal agreement are a range of ‘add backs’ which the husband now seeks to bring to account at Trial. The add backs are evidently prejudicial to the wife’s position and, save for one add back relating to bankruptcy costs, are opposed by her.
DOCUMENTS RELIED UPON
As set out in the wife’s Outline of Case Document filed on 21 February 2023, the wife relies on the following documents:
(1)Application in a Proceeding filed 8 February 2023;
(2)Affidavit of Ms Kramer filed 8 February 2023;
(3)Affidavit of Ms Kramer filed 17 August 2022;
(4)Costs Notice pursuant to Federal Circuit and Family Court of Australia (Family Law) Rules 2021 filed 20 February 2023; and
(5)A Draft Minute of Order.
As set out in the husband’s Outline of Case Document filed 21 February 2023, the husband relies on the following documents:
(1)Response to Application in a Proceeding filed 16 February 2023;
(2)Affidavit of Mr Kramer filed 16 February 2023;
(3)Financial Statement of Mr Kramer filed 28 March 2022; and
(4)Costs Notice pursuant to Federal Circuit and Family Court of Australia (Family Law) Rules 2021 filed 16 February 2023.
ISSUES TO BE DETERMINED
At the hearing, Counsel for the wife confirmed that her client consented to all of the interim orders set out in paragraphs 2 to 4 of the husband’s Response. The wife also consented to the husband receiving a sum of $50,000 for payment of legal costs and disbursements as sought by him.
In light of those concessions, the only issue left to be determined by the Court at the interim hearing is whether an order should be made pursuant to section 117 of the Act for the wife to receive the sum of $50,000 or the sum $120,000 in respect to legal fees the wife anticipates incurring until the finality of the litigation.
THE ASSET POOL
A revised Asset Pool is Annexure ‘-10’ to the husband’s affidavit filed 16 February 2023. The parties are in agreement in relation to the larger items of the property pool. The parties are in disagreement in relation to a number of items, particularly as they relate to the alleged ‘add backs’.
The asset pool for distribution at Trial is broadly agreed as follows:
Item
Description
Owner
Wife’s value
Husband’s value
1.
Proceeds of sale for property at C Street, Town D currently in Lindbloms Trust Account
Wife
$239,000
$239,000
2.
E Street, Town F[1]
Husband
E $213,000
E $200,000
3.
Proceeds of sale at property situated at G Street, Suburb H in Mildwaters Trust Account
Joint
$158,397
$158,397
4.
Motor Vehicle[2] 1
Husband
E $2000
E $7,000
5.
Motor Vehicle 2
Husband
E $500
E$500
6.
Trailer[3]
Wife
NK
E $1,500
7.
Motor Vehicle 3[4]
Husband
NK
E $90,000
8.
Small Boat (Tinny)[5]
Husband
NK
E $3,000
9.
Large Boat [6]
Husband
NK
E $15,000
12.
Tractor[7]
Husband
NK
E $1,000
13.
Tools[8]
Husband
NK
E $5,000
14.
Furniture[9]
Husband
NK
E $1,500
15.
Misc. Bank Account of Wife
Wife
May fluctuate
May fluctuate
16.
Misc. Bank Account of Husband
Husband
May fluctuate
May fluctuate
TOTAL VALUE OF ASSETS
E $612,897
E $721,897
ADD BACKS
17.
Monies received in or about January 2022 by wife from Mr J following sale of C Street, Town D house block
Wife
Nil
$95,000
18.
Monies transferred from the wife’s bank account on 22 March 2019 which husband says is unaccounted for
Wife
Nil
$200,000
19.
Bankruptcy Annulment Costs paid from proceeds of C Street, Town D Property
Wife
$58,258
$58,258
TOTAL VALUE OF ASSETS WITH ADD BACKS
E $671,155
E $1,075,155
LIABILITIES
20.
Bank K Personal Loan
Husband
NK
$4,900
TOTAL VALUE OF LIABILITIES
NK
$4,900
NET NON-SUPERANNUATION POOL TOTAL
E $671,155
E $1,070,255
SUPERANNUATION
21.
Super Fund 1
Husband
$140,000
$138,342
22.
Super Fund 2
Wife
$900
$11,198
TOTAL VALUE SUPERANNUATION
$140,900
$149,540
NET ASSET POOL (Inc. Superannuation) TOTAL
E $812,055
E $1,219,795
1 Parties are yet to obtain single expert valuation.
[2] Ibid.
[3] Ibid.
[4] Purchase price from husband’s funds retained post separation of $130,000.
[5] Wife asserts combined value of Items 8 and 9 is $20,000 as set out in her Affidavit filed 17 August 2022 at paragraph 45.
[6] Ibid.
[7] Parties are yet to obtain single expert valuation.
[8] Parties are yet to obtain single expert valuation.
[9] Parties are yet to obtain single expert valuation.
Aside from any monies to be assigned to the wife by way of add back, at present the wife owns a Trailer worth approximately $1,500. On the wife’s case, she currently has assets of $59,758, being the Trailer and the Bankruptcy Annulment Costs which are conceded by her. On the husband’s case, the wife has assets worth approximately $354,758, being the Trailer and all of the add backs set out above.
It is argued by the husband that if the wife is paid $120,000 to pay towards her legal costs and disbursements, such sum would significantly exceed the settlement sum owing to her if all of the add backs promoted by him were accepted and if the Court ordered 15 per cent of the net non-superannuation pool to the wife at Trial.
It is difficult to calculate what a payment of $120,000 would have on the final orders sought by the wife. This because her final orders sought do not assist the Court in understanding the parameters of the dispute on a percentage basis or even if the wife is seeking a superannuation splitting order. The wife’s final order sought is for the Court to divide the parties’ assets, liabilities and superannuation “in such terms and manner as the Court deems fit and appropriate.” Such an order has no legislative basis and is unenforceable.
What is evident to the Court, however, is that this case involves a relatively small pool of assets. The party’s legal costs may perilously erode any settlement of property between them after a lengthy relationship and at a time in their lives when future financial security becomes of paramount importance.
THE WIFE’S SUBMISSIONS
The wife’s counsel submitted that the Application for funding was brought pursuant to section 117 of the Act.
The wife’s evidence set out in her supporting affidavit filed 8 February 2023 is as follows:
(1)Following separation and in 2020, the parties entered into an informal property settlement. It is the wife’s case that the parties thereafter transferred various properties to each other with the wife retaining the property at C Street, Town D and the husband retaining the property at E Street, Town F. The parties also received the sum of $130,000 each from the net proceeds of sale of a property situate at C Street, Town D in or about December 2020.
(2)The parties’ informal property settlement agreement was not enshrined in writing nor was it the subject of Court orders.
(3)The wife considered that at the time of the transfer of the said properties, all matrimonial financial matters between the parties had resolved. The wife thereafter dealt with the assets that she retained without concern as to how it might impact on her financial situation now.
(4)That the wife cannot afford to privately pay towards her solicitors fees and has borrowed funds from family members to meet counsel fees which will need to be repaid.
(5)That she is unemployed, has no formal qualifications and is reliant on Government benefits.
(6)That if she is unable to obtain litigation funding, the wife will be unable to afford to pay lawyers and may have to proceed without legal representation. The wife contends that when previously self-representing at an earlier juncture in these proceedings, she was “confused by the Court process and found it difficult to participate.”[10]
(7)That if she could no longer afford engaging her current legal representatives she will be “unable to adequately engage in these proceedings.”[11]
(8)The wife asserts, without providing any independent medical evidence, that she would face difficulties with her mental health as she would find self-representing at Trial “stressful and overwhelming”.[12]
[10] See Affidavit of the wife filed 8 February 2023 at paragraph 20.
[11] Ibid.
[12] Ibid at paragraph 21.
The wife relies upon the Costs Notice filed as to the quantum of costs sought and concedes that any funds to be attributed toward her litigation expenses should be brought to account at Trial as an asset retained by her in the Balance Sheet. The Costs Notice dated 20 February 2023 filed by the wife confirms that the wife has paid $4,537 in costs to date, $3,462 in Trust, Work in Progress of approximately $44,500 and Estimated Future Costs (in addition to Work in Progress) of between $85,700 and $142,200.
The Court notes that for the purposes of this application the wife did not provide a copy of her Retainer Agreement with her current solicitors. It is therefore impossible for the Court to assess whether or not the costs sought by the wife are justified.
THE HUSBAND’S SUBMISSIONS
The husband’s evidence set out in his supporting affidavit filed 16 February 2023 is as follows:
(1)There had been no explanation by the wife for the increase in funds sought being the sum of $30,000 for litigation funding in the wife’s Response to Initiating Application filed 17 August 2022 and the sum now sought being $120,000.
(2)The wife had failed to file the ‘Terms of Engagement’ with her current solicitors.
(3)That the litigation funding order as sought by the wife pursuant to section 117 of the Act should be refused as the sum sought “would not be just”.[13]
(4)The husband would be calling evidence at Trial to establish that prior to the commencement of the parties’ relationship, there had been numerous occasions when the husband’s late uncle, Mr B, had confirmed that farming land to the value of $1,335,000 would be gifted to the husband alone and not the parties jointly.
(5)That the principles of proprietary estoppel and/or constructive trusts resulted in an argument that the husband had an entitlement in equity against his uncle, Mr B, to receive the farming land which had been promised and was eventually given. The husband will assert that the gift of the farming land should be treated as a contribution solely made by him.
(6)That the value of the farming land gifted by Mr B is greater than the current value of the net non-superannuation pool available at hearing.
(7)That there is an arguable case for the Court to find that the wife entered into bankruptcy for “improper purposes to frustrate the applicant’s claim to a division of property and had nothing whatsoever to do with her financial circumstances.”[14]
(8)That the wife had provided conflicting evidence which the husband asserted would support his contention that the add backs set out by him in the balance sheet should be brought to account at Trial.
(9)In summary, the husband submits that if the wife was to receive $120,000 for litigation funding then the husband “…is likely to be prejudiced and not in a position to receive the entitlement he would receive if the litigation funding is not ordered.”[15]
(10)The Costs Notice dated 1 February 2023 filed by the husband confirms that he has incurred $50,499.56 in solicitor costs ($19,777.65 of which has been paid), unpaid counsel fees of $7,275.50, potential future costs to Trial of $26,000 for solicitor costs and $21,000 in counsel fees.
[13] See the husband’s Outline of Case Document filed 21 February 2023 at paragraph 6.
[14] Ibid at paragraph 11.
[15] Ibid at paragraph 17.
LEGAL PRINCIPLES
The wife’s Counsel submitted that the application for funding was brought pursuant to section 117 of the Act.
The decisions of In the Marriage of Zschokke and Strahan v Strahan confirm that section 117 of the Act confers the necessary power to make an order for litigation funding.[16]
[16] (1996) 20 Fam LR766 and (2009) 42 Fam LR 203.
Section 117(1) of the Act provides that subject to subsection (2), each party to proceedings under the Act shall bear his or her own costs. Subsection (2) provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to subsection (2A) make such order as to costs including security for costs, whether by way of interlocutory order or otherwise, “as the Court considers just.”
In considering whether or not an order for costs is “just”, the Court is to ascribe its usual meaning. In other words, would such an order be “fair” or “equitable” or “proper” in the circumstances of this particular case? As was considered in Salvage & Fosse, that question raises, amongst other things, a consideration of the strength of the applicant’s case and the effect of the order upon the respondent.[17]
[17] Salvage & Fosse [2020] FamCAFC 144.
Section 117(1) has been described as “…an obstacle that must be overcome” and an explanation as to “…why it is almost invariable that applications of this type are brought in reliance upon the power to make interim property orders and not the costs power.”[18]
[18] Esdale & Schenk [2012] FamCA 111, [68].
The considerations that apply to an application for funding under sections 79 and 117 of the Act are different and care must be taken in identifying the legal principles applicable to each.[19]
[19] Salvage & Fosse [2020] FamCAFC 144, [11].
Any order under section 117 of the Act may be made in relation to costs already incurred but in respect of costs yet to be incurred it is a matter of discretion as to payment (if any) and quantum.[20]
[20] Paris King Investments Pty Ltd v Rayhill (2006) NSWSC 578.
Previous authorities of the Court have been divided on the power under section 117 of the Act to make an order for “anticipated” costs not yet incurred. In the case of Verdon & Verdon,[21] Wilson J summarises the differing views held by the Court in the decisions of Selena & Montez and Ors,[22] Atkins & Hunt,[23] Quayle v Perceval,[24] and Salvage & Fosse.[25]
[21] [2020] FamCA 824.
[22] [2017] FamCA 583.
[23] [2018] FamCA 14.
[24] [2018] FamCA 664.
[25] Verdon& Verdon [2020] FamCA 824, [99].
However, this controversy appears to have been laid to rest with the Full Court recently determining that:
Accordingly, we are of the opinion that until the High Court holds otherwise, the Court should proceed on the basis that s117 empowers the Court to make litigation funding orders, including dollar for dollar orders.[26]
[26] Charisteas & Charisteas [2022] FedCFamC1A 160, [77].
There is no issue in this case that any order for costs may have the effect of diminishing the property pool available at Trial because the parties are consenting to orders that any sum received by them will be brought to account in the Balance Sheet at Trial as an asset retained by each of them. Rather, the argument at hand is whether or not any sum to be paid to the wife would exceed her ultimate entitlement. The fact that an interim costs order may never be repaid, however, is not a bar to one being made.[27]
[27] Rakete & Rakete [2012] FamCA 267.
Section 117(2A) of the Act
Any application for funding brought pursuant to section 117 of the Act directs the Court to consider the factors set out in section 117(2A) of the Act.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
The wife is unemployed and has no formal qualifications. She is reliant on government benefits and volunteers at the Company L on two days per week. The wife is now a carer for her father.
The husband is employed as a farm hand and earns approximately $894 gross per week.
The wife asserts that she suffers from depression which makes it difficult for her to secure employment. No independent medical evidence was provided to the Court on the wife’s mental health.
The wife’s mother died in 2022. The husband asserts that the wife will receive an inheritance in due course, which is denied by the wife.
Neither party pays rent or mortgage payments and aside from the usual exigencies of life, are largely debt free. The husband has the advantage of residing in his own home. The wife is currently living with her father given that she has become his carer.
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
Not applicable.
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
The husband argues that the wife has acted in such a way as to increase his legal costs and to ensure that the assets are diminished before settlement. In support of this contention, the husband refers to a text message being ‘Annexure -12’ of his affidavit filed 16 February 2023 wherein the wife is alleged to have threatened to:
…keep my promise to [Mr B] so if every last cent of his house money goes to the lawyer he would rather see it go to the lawyer than to anyone and I told my lawyer the same and it will stay in Court until it is all gone.
On 8 July 2022 the husband filed an Application in a Proceeding seeking that the matter be listed for an undefended hearing. It was alleged that the wife had failed to comply with orders of the Court dated 27 April 2022, 1 June 2022 and 20 June 2022 primarily in relation to the filing of answering documents and financial disclosure.
The husband’s allegations will be tested at Trial. It is a matter of record that the wife took some time to properly engage in the litigation. The husband’s application appears not to have been pressed. The wife’s responding documents were eventually filed on 17 August 2022 and she has engaged in the litigation with the assistance of her solicitors since that time.
Self-evidently this is an interim hearing. The Court is unable to make any findings as to the veracity of the husband’s allegation that the wife is engaging in deliberate and wilful conduct to increase his legal costs and prolong the litigation.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
To the extent that this subparagraph is relevant see paragraphs 43 to 46 above.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
Not applicable.
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
Not known.
(g) such other matters as the court considers relevant.
Not relevant.
CONCLUSION
Having considered all of the available evidence and the legislative requirement for an application for costs pursuant to section 117 of the Act, the Court has come to the decision that the wife’s application for litigation funding in the sum of $120,000 is refused.
The Court is not satisfied at this stage of the proceedings that the amount sought by the wife is “just” in all of the circumstances. The amount sought is excessive particularly in the absence of any evidence by way of a Retainer Agreement setting out the terms upon which the wife’s solicitors will continue to act or not act for the wife moving forward. There is simply no evidence and the Court is not entitled to make assumptions. As was submitted by counsel for the husband, it is not uncommon for some legal firms to act ‘on spec’ and to await finality of the litigation before payment of their costs.
In the absence of a Retainer Agreement, the Court is unable to assess whether or not the sum sought by the wife is just having specific regard to section 117 (1) and (2) of the Act. The Court has not been addressed as to why such an order is warranted in this case.
Furthermore, in the absence of a pleading setting out with precision the orders sought by the wife at Trial, the Court is unable to make any assessment on the merit or otherwise of the wife’s case. The current final orders sought by the wife are simply unenforceable.
The Court is not satisfied that it is just to make an order as sought by the wife and accordingly will make an order in favour of the wife as proposed by the husband.
The Court has already observed that there is a very real risk of the parties’ legal fees and disbursements exceeding or substantially eroding the assets available for distribution at Trial. It is disappointing, in those circumstances, that the parties declined the Court’s offer of a further Conciliation Conference or a Judicial Settlement Conference prior to the proceedings being listed for Trial.
Transfer to Division 1 of the Federal Circuit and Family Court of Australia
At Trial, the husband’s counsel submitted that the husband would be calling between five to eight witnesses in addition to his own evidence. The wife submitted that she would be calling two witnesses in addition to her own evidence. Even approaching the witness list conservatively, there would potentially be nine witnesses to give evidence at Trial. The Court considers the likelihood of any Trial in this matter being confined to four days or less as unrealistic. The wife’s Counsel conceded this in her submissions.
As foreshadowed at the conclusion of the hearing, the Court now proposes to transfer the proceedings to Division 1 of the Court given that any Trial will exceed four days.
Finally, it is appropriate for the Court to comment on the husband’s affidavit filed 16 February 2023 where in paragraph 36 (a) to (d) the husband deposes to observations made by his solicitor or members of her firm as to the wife’s movements in and around the Region M where the parties and the husband’s solicitor reside.
There may be a temptation when parties and their legal representatives reside in small communities and come into contact by virtue of proximity or size of the population, for a legal practitioner to comment on observations made by him or her relevant to the litigation, in correspondence or affidavits. The risk and impropriety of a legal practitioner referring to their personal observations in affidavits is obvious. Potentially, the legal practitioner risks being called as a witness at any final hearing and having to cease acting for a party concerned.
Fortunately in the circumstances, of this case the relevant paragraphs of the husband’s affidavit referred to above, have not impacted on the Courts decision and have not been considered for determining the issue at hand.
For all of the above reasons the Court makes orders as set out at the commencement of these Reasons.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 3 March 2023
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