Krupin & Krupin

[2021] FedCFamC2F 589

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Krupin & Krupin [2021] FedCFamC2F 589

File number:	BRC 5459 of 2014
Judgment of:	JUDGE YOUNG
Date of judgment:	24 November 2021
Catchwords:	FAMILY LAW – Property – application for adjournment of the trial – where a trial was heard by a judge of the Federal Circuit Court in 2016 – where the Court did not issue final orders – where the matter was set down for a re-trial – where orders for the filing of affidavit material as evidence-in-chief were inconsistent – where the parties sought to rely on numerous affidavits as evidence-in-chief –where the parties sought an adjournment to consolidate the affidavit material – Court satisfied the parties have each filed a single affidavit of evidence-in-chief – Court satisfied there would be no unfairness to the parties if the trial proceeded – Court satisfied it is in the public interest for the trial to proceed – application for adjournment refused.
Legislation:	Family Law Act 1975 (Cth), s.102NA Federal Circuit and Family Court of Australia Act2021 (Cth) Federal Circuit Court of Australia Act1999 (Cth)
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Division:	Division 2 Family Law
Number of paragraphs:	22
Date of hearing:	24 November 2021
Place:	Darwin
Counsel for the Applicant:	Mr Baston
Solicitor for the Applicant:	Hofstee Lawyers
Counsel for the First Respondent:	Mr Anderson
Solicitor for the First Respondent:	Robert Bax & Associates
Counsel for the Second Respondent:	Mr Berghofer
Solicitor for the Second Respondent:	Geniune Legal
Counsel for the Third Respondent:	Mr McGregor
Solicitor for the Third Respondent:	Guy Sara & Associates

ORDERS

BRC 5459 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR KRUPIN

Applicant

AND:

MS KRUPIN

First Respondent

MS ANGELOFF

Second Respondent

MS PETROV

Third Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	24 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The application for adjournment be dismissed.

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 Krupin & Krupin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an adjournment application of a trial that has been set down for hearing over three days, commencing today.  Each of the four parties (the applicant and the first, second and third respondents) joined in an application for adjournment this morning.  This matter has an unfortunate history.

2. In 2016, a trial was held between the applicant, the first respondent and the second respondent.  The third respondent, who is the current wife of the applicant, was joined recently, principally because she is the trustee or a director of a trustee company of a family trust. The trial in 2016, as far as I can glean from the materials, ran over three days but the Court did not issue orders.  The reason for that failure remains unexplained.

3. In 2018, the parties approached the Court again and in apparent recognition that no orders would be forthcoming, the matter was transferred to the docket of another judge of this Court (then the Federal Circuit Court).  That judge died.

4. The matter was then transferred to another judge in the Brisbane Registry.  That judge made orders in 2020 in contemplation of a trial to be held in April 2021.  The orders made by that judge on 6 November 2020 adjourned the matter for trial on 19 April 2021 to be held over three days. Order 2 states:

   ...that no party may rely on more than one consolidated trial affidavit of their evidence-in-chief and one affidavit from any witness they intend to call in support of their case.

   That consolidated trial affidavit was to be filed no later than 4 pm on 20 March 2021.

5. On 20 March 2021, the April trial dates were vacated.  The reason for that is somewhat unclear to me but, I glean from reading the materials that it was thought necessary to join the third respondent at that point and she was subsequently joined as a third respondent on 4 May 2021.

6. On 7 September 2021, various orders were made by the docket judge which in summary, provided for the parties to access the Commonwealth Legal Aid scheme set up pursuant to section 102NA of the Family Law Act1975 (Cth) (“the Act”). Other orders were made including order 4 which states:

   That the parties will reply upon previous affidavits filed for the defended hearing (emphasis added).

   There was an order 5 that states:

   That the parties have leave to file and serve a short updated affidavit by 4 pm on 10 November 2021.

   Order 6 states:

   That the parties have leave to file and serve an affidavit in reply to any affidavit filed by the second or third respondents no later than 4 pm on 10 November 2021.

7. The debate this morning turned on the meaning of order 4.  If order 4 is to be given the meaning that the parties said it should be given – that the parties may rely on previous affidavits filed -  the obvious point is that it is entirely inconsistent with the order of 6 November 2020 for a single trial affidavit.  I note that the order of 6 November 2020 was not discharged on 7 September 2021. It also can be noted that any trained lawyer - and any lawyer practising in this jurisdiction - would know that order 4 was an unusual order. This is particularly the case given that it is standard in this Court to make orders for a single trial affidavit and affidavits of any witnesses to be filed by a certain date.  This is to avoid the unnecessary duplication of evidence, confusion and the like.

8. On perusing the outline of the parties’ cases yesterday evening, I noticed that each proposed to rely on, as far as I can see, every affidavit that has been filed since 2015.  I have not counted the pages but it was agreed by counsel this morning that those materials would be in excess of 2000 pages.  On raising with each of the four counsel my unease with the course proposed, they each confirmed that they proposed to rely on these multiple affidavits and on order 4 of 7 September 2021. 

9. In the case of the applicant, my count of the affidavits that he proposed to rely on was 11 affidavits from 2015 to 12 November 2021.  In the case of the first respondent, her outline said that she proposed to rely on 13 affidavits from June 2015 to 10 November 2021.  In the case of the second respondent, she took a considerably more conservative approach and indicated that she sought to rely on only four affidavits filed between May 2016 and 19 November 2021.  In the case of the third respondent, she proposed to rely on two affidavits (a trial affidavit and an updating affidavit) filed, presumably in accordance with the orders of 7 September 2021, along with a financial statement.  The third respondent’s position is perhaps somewhat different to the other respondents in that it is apparent from the orders she seeks that her interest, at least in these proceedings, is no different from that of the applicant. 

10. It is unnecessary to inquire about the reason why more than one counsel submitted, without demur by others, that their clients had considered that they would be permitted to rely on essentially all of the affidavits that had ever been filed because of order 4 of 7 September 2021.  It is also unnecessary to inquire about the reasonableness of that belief. In my view, any lawyer who looked at those two orders would have seen that there was either confusion, misunderstanding, or the potential that a court would consider that the order of 6 November 2020 was the relevant operative order. This is because of the frank absurdity of expecting a judge to read more than 2000 pages of affidavit material. 

11. Nevertheless, I inquired of each counsel whether there was any matter that their respective clients had not had the opportunity to raise in the affidavit materials that I had identified as having been filed in response to the order of 6 November 2020 for a single trial affidavit. 

12. In the case of the applicant, he filed a self-drafted affidavit on 29 March 2021.  In my view, it was clearly prepared and filed in response to the order of 6 November 2020.  It deals with all the matters that might be expected to be dealt with in a property trial in this Court.  Admittedly, the applicant does make reference to material in earlier affidavits but that does not appear to be extensive.  He filed an updating affidavit on 12 November 2021.  His counsel suggested that there was other material that could be put forward but I am satisfied that this is simply the result of a legally-trained eye looking at the matter and considering that the self-drafted affidavit has some deficiencies.  In my view, it does not have any radical deficiencies and the applicant raised the matters that he considered relevant. I am satisfied he had the opportunity to raise all relevant matters.

13. The first respondent filed an affidavit on 19 March 2021, which in my view, was clearly in response to the order of 6 November 2020.  It covers the relevant matters. She filed an updating affidavit on 10 November 2021. 

14. The second respondent filed a 99-page affidavit on 24 March 2021, which in my view, was also clearly in response to the order of 6 November 2020. The affidavit covers all relevant matters and, in addition, the second respondent filed quite a lengthy updating affidavit on 19 November 2021.

15. The third respondent who, as I mentioned, was joined to the proceeding in May 2021, filed an affidavit on 2 June 2021. As I have already observed, she has no separate interest in these proceedings to the applicant. I interpolate from what I was told today that she has separated from the applicant. They are currently living under one roof and it is not contemplated by anybody that any entitlement she may have under the Act against the first applicant is to be dealt with in these proceedings. She filed an updating affidavit on 15 November 2021.

16. I am satisfied that each party has filed a trial affidavit in conformity with earlier orders, particularly the order of 6 November 2020, and filed an updating affidavit.  Each has had the opportunity to provide the evidence-in-chief that they wish to have considered in these proceedings. There is no unfairness in requiring the parties to rely on those affidavits only as evidence-in-chief. 

17. There is an overriding public interest in the efficient use of court time.  This is reflected, of course, in the Federal Circuit and Family Court of Australia Act2021 (Cth). It was reflected in very similar terms in the previous Federal Circuit Court of Australia Act 2001 (Cth). In each case, there is a statutory obligation for this Court to facilitate the just resolution of disputes according to law and as quickly, inexpensively and as efficiently as possible. The current Central Practice Direction, which came into force on 1 September 2021 and, of course, would not have applied to proceedings before that date, is to the same effect. 

18. More fundamentally, since the High Court decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon Risk Services), it has been clear to all lawyers practising in Australia that there is a public interest in the just and efficient resolution of disputes.  Usually, that would mean that once a matter is set down for trial, it will proceed unless there are the most extraordinary circumstances.  As the High Court recognised in Aon Risk Services, costs are no longer a panacea and in this case, where each party is effectively legally aided, costs would be irrelevant and the cost of delay simply falls on the limited Legal Aid purse.

19. In my view, those matters all dispose of the applications for adjournment. The applications must be refused. 

20. For the sake of completeness, I should also refer to a couple of points raised by Mr Baston, counsel for the applicant.  He said, in summary, that an audio-visual link hearing conducted by Microsoft Teams was inappropriate where there are issues of credibility to be resolved.  I do not know what the particular issues of credibility to be resolved in this case are. Often there are issues of credibility to be resolved in proceedings in this Court.  It is very standard.  It would be a most unusual case if there were not credibility issues to be resolved one way or another.  I do not accept that that submission, at least, in general terms, has any validity. 

21. This Court, like most other courts in Australia, has been hearing civil trials by audio-visual link over the past two years.  I certainly have in this Court, and I am confident that issues of credibility can be as adequately tested in an audio-visual link hearing as they can in person.  That is the view I have formed after two years of intensive experience of audio-visual link hearings. Credit issues in this Court are often resolved by reference to documents, and those documents can be put to witnesses easily if the parties act with a little bit of foresight.  

22. The other issue raised by Mr Baston was there may be inconvenience in tendering documents.  While there may be some inconvenience, a little bit of foresight should see that issue dealt with smoothly. I do not consider that those points have any particular validity.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       15 December 2021