Krupin & Krupin
[2022] FedCFamC1F 1097
•27 October 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Krupin & Krupin [2022] FedCFamC1F 1097
File number(s): BRC 5459 of 2014 Judgment of: HOWARD J Date of judgment: 27 October 2022 Catchwords: FAMILY LAW – PROPERTY – Where there are allegations of family violence – Where it is appropriate to make an Order pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) – Trial directions made. Legislation: Family Law Act 1975 (Cth) s 79 and s 102NA Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 27 October 2022 Place: Brisbane Solicitor for the applicant: Litigant in person Solicitor for the first respondent: Robert Bax & Associates Solicitor for the second respondent: Litigant in person Third and Fourth respondents: Litigants in person ORDERS
BRC 5459 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KRUPIN
Applicant
AND: MS KRUPIN
First Respondent
MS ANGELOFF
Second Respondent
MS PETROV
Third Respondent
B PTY LTD
Fourth Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
27 OCTOBER 2022
THE COURT ORDERS BY CONSENT:
1.That pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), UU Real Estate is appointed as the Single Expert.
2.That by no later than 24 November 2022, the parties do all such things necessary to engage the Single Expert to undertake updated valuations of the following properties:
(a)E Street, Suburb F;
(b)G Street, Suburb H; and
(c)C Street, Suburb D.
3.That the parties do all such things and sign all such documents as is necessary to pay the costs of the updated valuations from the funds held in the trust account of RR Lawyers.
THE COURT ORDERS UNTIL FURTHER ORDER:
4.That by no later than 4.00pm on 24 November 2022, the Applicant shall file and serve an Amended Initiating Application setting out the final orders which he seeks against each of the parties and shall also annex to the Amended Initiating Application a “Statement of Claim” which succinctly pleads the contentions of fact and law upon which the Applicant relies to support the orders he seeks in the Amended Initiating Application.
5.That by no later than 4.00pm on 22 December 2022, each of the Respondents shall file and serve an Amended Response setting out the final orders that each of the Respondents seeks against the other parties and each of the Respondents shall also annex to their respective Amended Response a document to be called “Defence and Cross-claim” and in that Defence and Cross-claim, each of the respondents shall succinctly plead each of the contentions of fact and law upon which each of the Respondents rely to support the orders sought by each of them against:
(a)the Applicant; and
(b)each of the other Respondents to the proceedings.
6.That the Third and Fourth Respondents are to provide copies of all documents relating to the property situated at G Street, Suburb H, in relation to the property generally and in relation to any rental income received in respect of the property.
7.That pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth):
(a)The Applicant MR KRUPIN not be permitted to personally cross-examine the First Respondent MS KRUPIN; and
(b)The First Respondent MS KRUPIN not be permitted to personally cross-examine the Applicant MR KRUPIN.
8.That it is requested that Legal Aid Queensland arrange for legal representation for the Applicant and the First Respondent as a matter of priority.
9.That these proceedings be set down for final hearing for not more than five (5) days commencing at 10.00am on 13 March 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
10.That the parties and their legal representatives personally attend Court for the final hearing.
11.That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 13 February 2023.
12.That each party file and serve on each other party no later than 4.00pm on 20 February 2023:
(a)one (1) consolidated Affidavit of evidence in chief of that party;
(b)one (1) Financial Statement; and
(c)one (1) Affidavit of each witness intended to be relied upon at the trial.
13.That any Affidavit filed in accordance with the preceding Order shall:
(a)have any annexures which the deponent may refer to in the Affidavit attached to the Affidavit;
(b)contain an index of any attached annexures; and
(c)be paginated from the commencement of the Affidavit through to the end of the attached annexures.
14.That each party file and serve on each other party no later than 4.00pm on 6 March 2023 a Case Outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a schedule of the asserted assets and liabilities;
(d)a list of the issues which each party asserts that the Court needs to determine at the trial; and
(e)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.
15.That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without the leave of the Court.
16.That should either party wish to raise any objections to the evidence contained in the trial affidavit material – such party shall file and serve a “Notice of Objections to Evidence” (containing a list of objections) at least fourteen (14) days prior to the commencement of the final hearing of the matter.
17.That in the event that a party wishes to cross examine the single expert at the Final Hearing, that party shall provide written notice to the single expert of such intention as soon as reasonably practicable, but by no later than 4.00pm on 20 February 2023.
NOTATION:
A.The Court directed that the parties obtain legal advice to ensure that each party complies with their respective obligation to provide disclosure of documents to all of the other parties in a timely manner.
B.That on 27 October 2022 the Court explained to the parties the applicability of s 102NA Family Law Act 1975 (Cth) and the Court provided Reasons Ex Tempore for the making of the s 102NA order.
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 the pseudonym Krupin & Krupin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 27 October 2022 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court began life as a s 79[1] application between a former married couple, Mr Krupin and Ms Krupin. That married couple have four children. Arrangements are in place in respect of the children. The case relates to property only, but there are additional parties, including the second respondent. The second respondent is the maternal grandmother, Ms Angeloff. The third respondent is the husband’s second wife, Ms Petrov. There is a fourth respondent, B Pty Ltd, a company which is a corporate trustee of a trust which owns certain property.
[1] of the Family Law Act 1975 (Cth) (“the Act”).
The matter has had a long and troubled history. For present purposes, an appeal was recently allowed by the Full Court. A single judge sat to hear the appeal, and the appeal judge allowed the appeal. The appeal had been filed by the husband against orders made by his Honour Judge Young (Division 2). His Honour Judge Young had heard a five day trial in November and December 2021 and delivered judgment on 4 March 2022. The appeal was heard on 23 August 2022. Judgment was delivered on 1 September 2022. The matter was remitted for rehearing. Initially it was contemplated that it would be reheard by another judge in Division 2, but subsequently the matter has been transferred to the Federal Circuit and Family Court of Australia (Division 1). The matter was listed for case management hearing today. There is in place already an order that was made pursuant to s 102NA of the Act. Now, my attention in fact has not been drawn to any order discharging that. Even if I'm wrong about that, my view is that s 102NA is still applicable. For clarity, having regard to s 102NA, it seems to me that under s 102NA(1)(c), the Court has a discretion to order that the requirements of subsection (2) are to apply to cross-examination.
Section 102NA states:
“102NA Mandatory Protections for parties in certain cases
(1) If, in proceedings under this Act:
(a)a party (the examining party) intends to cross‑examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross‑examination;
then the requirements of subsection (2) apply to the cross‑examination.
(2) Both of the following requirements apply to the cross‑examination:
(a)the examining party must not cross‑examine the witness party personally;
(b)the cross‑examination must be conducted by a legal practitioner acting on behalf of the examining party.”
Note 1: This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Note 2: This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Note 3: To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.
(3) The court may make an order under subparagraph (1)(c)(iv):
(a)on its own initiative; or
(b)on the application of:
(i)the witness party; or
(ii)the examining party; or
(iii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.”
As I say, this case has a long, complex and troubled history. There have been, over a significant period of time, allegations of family violence between the applicant and the first respondent, one against the other. The husband pursued an application for a domestic violence order, and in mid-2022 a trial was listed before a magistrate sitting at Suburb AC for the hearing of the husband's domestic violence order application, alleging that the wife had committed family violence against him. The husband, Mr Krupin, appears today as a self-represented litigant and told the Court that the application was not successful; the application was dismissed.
The wife had pursued an application for family violence, which she subsequently withdrew. For completeness, I note that there were in place temporary protection orders, one naming the wife as the aggrieved and the husband as the respondent. That order was made in early 2020.
Another temporary protection order naming the husband as the aggrieved and the wife as the respondent was made in early 2021. There was and there continues to be allegations of family violence between a proposed examining party and a proposed witness party. Nothing could be clearer. The fact that the DVO application went to a trial four months ago, in Suburb AC, it seems to me is conclusive that such allegations exist. The Court is then granted the power to order that the requirements of subsection (2) of s 102NA apply. It seems to me, I am satisfied that the relevant provisions in s 102NA are operative and apply here. I am also satisfied that I should exercise my discretion and make the order that the provisions of or the requirements of s 102NA, subsection (2) do apply. I do not need to provide any further reasons beyond what I have given; that is to say, that the provisions of s 102NA(1) apply and the Court considers it appropriate to exercise its discretion and make the s 102NA (2) order.
I heard from each of the parties today on the issue. I note that the second respondent could not add much because she needs an interpreter. The order will not affect her anyway, so I do not consider it necessary to delay the making of the order. I heard in particular from the husband, whose English is, I would have to say, reasonably good, although he does want an interpreter for the trial. He said he has some issue with judicial terminology. In any event, I did hear from the husband. He did not want the Court to make an order under s 102NA. He wanted to remain as a self-represented litigant. But the section is there and the heading of s 102NA is “Mandatory protections for parties in certain cases”. Well, this is one of those cases. And it seems to me, as I have said, that the provisions of the section apply and the order should be made that subsection (2) applies also. I do see that note 1 to s 102NA, subsection (2) says that the section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim as well as in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator. So that it will be apparent from these reasons that I have rejected the husband's submission that there ought be no order under s 102NA. It seems to me to be exactly the sort of case where an order under s 102NA should be made and the provisions of s 102NA, subsection (2) should be ordered to apply.
The parties to the first marriage (the husband and the wife) will not be permitted to personally cross examine the other former spouse. The husband will not be permitted to cross examine the wife personally. The wife will not be permitted to personally cross examine the husband. I should add by way of reasons that the third respondent made a submission about it. I have heard what she had to say. It does not change my view or my reasoning. The provisions will not apply to her. She wants to be a self-represented litigant. At this point in time I am willing to permit her to do so. I asked the third respondent whether there were any allegations of family violence involving herself and the husband. I asked the third respondent whether there were any allegations between herself and either the first wife, that is the first respondent, Ms Krupin, or against the second respondent. The third respondent (Ms Petrov) told the Court, that there were no such allegations at this point in time, or words to that effect. I will continue to monitor that situation.
I have had regard to what is claimed here, including what I understand to be a claim by the husband that a constructive trust exists in favour of him and the wife in respect of the C Street property, which I understand from the evidence is registered in the name of the grandmother. Now, my proposal is – and I will hear from the parties if they have anything they want to say – to make an order that pleadings be prepared and served in respect of this trial.
The court tried to get a Country M interpreter today, but it wasn’t possible because it was short notice. I did try to get a Country M interpreter for today’s case management hearing. Now, I am satisfied that in respect of the key or essential elements today that I have proposed, that, for instance, and importantly, the husband has sufficient understanding of English and proficiency in English to make any relevant submission. The point is this, in relation to the making of the s 102NA order, it was apparent to me - and I add this further by way of reasons - that each of the parties when it was explained understood precisely what the issue was, and, especially, I would say, the husband understood it and he made a cogent submission in respect of it. It’s just that the Court did not accept his cogent submission, and the Court came to a different conclusion.
In respect of the direction concerning pleadings, for completeness, I sought the views of the parties, but it was not and is not the sort of issue which in this case I consider was really a matter for submissions. It’s a matter for the Court; it’s a procedural point relating to case management, and the conduct of the proceedings. For those reasons, even though the court tried to get an interpreter for today, it seems to me that there was no net difference whether an interpreter was here or not, for the reasons that I’ve stated. I would add that I also consider, having heard her submissions today, that Ms Petrov has excellent proficiency in English also, and was well able to understand once I explained certain things to her – what the court was mentioning today. Furthermore, I do note that the third respondent has requested an interpreter for the trial, which will be provided of course.
The third respondent has foreshadowed the possibility of an application to join an additional respondent. That’s a matter for her, and I’ve told her she should get legal advice on that.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 27 October 2022
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