Leeson & Gosley
[2022] FedCFamC1F 600
Federal Circuit and Family Court of Australia
(DIVISION 1)
Leeson & Gosley [2022] FedCFamC1F 600
File number(s): MLC 12653 of 2020 Judgment of: HARTNETT J Date of judgment: 22 August 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife sought the postponement of the part-heard final hearing – Where the husband and Independent Children’s Lawyers opposed such an order – No basis to adjourn final hearing – Where an adjournment would be prejudicial to the husband and not in the best interests of the children – Where the wife sought leave to rely on further affidavit material in both the Application in a Proceeding and final hearing – Leave refused – Where the wife sought to strike out the single expert Family Report writer affidavit material – Where the wife sought to obtain further updated valuations – Where there was no objection to the wife obtaining her own adversarial expert report – Where otherwise the wife’s Application in a Proceeding was dismissed save for leave to issue subpoena for Family Report writer’s notes – Costs of the Independent Children’s Lawyer and husband reserved. Legislation: Family Law Act 1972 (Cth) ss 68L, 69Z, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.07, 2.18, 2.23, 5.08, ch 5
Cases cited: Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648 Division: Division 1 First Instance Number of paragraphs: 56 Date of last submission/s: 22 July 2022 Date of hearing: 22 July 2022 Place: Melbourne The Applicant: Litigant in person Counsel for the Respondent: Ms Byrnes Solicitor for the Respondent: Kennedy Partners Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions ORDERS
MLC 12653 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LEESON
Applicant
AND: MR GOSLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
22 July 2022
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 19 August 2022.
THE COURT ORDERS, BY CONSENT, THAT:
1.The applicant wife be, and is, at liberty to file and serve, on or before 4.00pm on 8 August 2022, a sworn valuation of the real property situated at, and known as B Street, Suburb C in the State of Victoria, and is thereafter at liberty to rely on that evidence, if she so wishes.
2.Within 14 days, each party provide to the other, full and frank disclosure in accordance with rule 6.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
AND THE COURT ORDERS THAT:
3.Leave be granted to the applicant wife to issue a subpoena to Dr E for production of notes taken by him in the course of his involvement with the parties and the children, X born in 2008, Y born in 2013, and Z born in 2014, and such notes produced on subpoena are able to be inspected by the parties and their legal representatives/counsel, and are not to be photocopied other than by the Independent Children’s Lawyer, nor the contents of such notes to be conveyed or disseminated to any person other than to the parties in these proceedings.
4.The costs of the respondent husband and Independent Children’s Lawyer be reserved.
AND IT IS FURTHER ORDERED, BY CONSENT, THAT:
5.That forthwith, each party do all acts and things and sign all such documents as may be required to formally engage Ms D, Psychologist of F Psychologists, located G Street, Suburb H in the State of Victoria (the engagement) as treating psychologist for the parties’ child, Z, born in 2014 (Z).
6.That for the purpose of the engagement:
(a)Within seven (7) days, the Independent Children’s Lawyer send to Ms D by way of email:
(i)The proposed letter prepared by the Independent Children’s Lawyer annexed to these orders and marked as Annexure A;
(ii)The recommendation letter from J Health Service dated 28 June 2022;
(iii)The Case Outline of the Independent Children’s Lawyer filed in these proceedings on 8 May 2022.
(b)In the event that Ms D requests provision of any and/or all of the expert reports of Dr K, Psychiatrist, and/or Dr E, Psychologist and Family Report Writer, and/or the DFFH report(s) to the court dated 4 March 2022 and 7 February 2022 filed in these proceedings, the Independent Children’s Lawyer forthwith provide her with a copy of the reports so requested;
(c)The applicant and respondent each follow and adopt in a timely manner, all reasonable recommendations of Ms D including but not limited to:
(i)The frequency, duration and mode of appointments for Z (including but not limited to the extent of parental participation, if any); and
(ii)Assessments, tests, therapy and/or treatment including a sensory assessment if considered necessary;
(d)The party in whose care Z is at the time of the appointment(s) with Ms D ensure that Z attends at the appointment as scheduled; and
(e)All written communications between the applicant and/or respondent with Ms D be copied to the other party contemporaneously, by way of email.
7.That Ms D be at liberty to contact, and communicate with, any and all relevant staff members at the school at which Z attends from time to time, in relation to any and all matters which, in her professional opinion, are relevant to Z, including but not limited in relation to Z’s academic, social and/or other progress and development.
8.That each party be liable for, and pay, one half (50%) of any and all out of pocket costs and expenses associate with Z’s attendance on Ms D, including but not limited to consultations with her, tests, assessments, therapy and/or treatment as recommended by her, as and when such costs become due and payable.
AND THE COURT FURTHER ORDERS THAT:
9.The applicant wife’s Amended Application in a Proceeding filed 20 July 2022 be and is hereby dismissed.
AND THE COURT DIRECTS THAT:
A.The Minute of Consent Orders signed by the parties, dated 22 July 2022, and marked ‘Exhibit A’ and ‘Exhibit B’ remain upon the Court file.
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 Leeson & Gosley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Introduction
On 22 July 2022, I made orders in interlocutory proceedings upon application of the wife. I did so on that day as I was about to commence a leave period and the matter was part-heard in its trial. I now deliver these reasons for judgment which support the making of those orders of 22 July 2022.
This proceeding commenced on 18 November 2020 when the Applicant wife’s (“the wife”) then solicitors, L Lawyers, filed an Application for Final Orders on behalf of the wife. The orders sought were property orders that were un-particularised.
The Respondent husband’s (“the husband”) solicitors, Kennedy Partners, filed on behalf of the husband a Response and then an Amended Response to the wife’s Initiating Application, the latter filed 14 January 2021. The husband sought property orders including the sale of the former matrimonial home situated at B Street, Suburb C in the State of Victoria (“the FMH”) with payment out of its encumbrances and the parties other various debts before a division of any balance. The husband sought further and other orders relating to the parties’ corporate interests. The husband also sought parenting orders.
The parties had married in 2012 and separated on 21 July 2020, that separation period now exceeding two years. In that time, the husband, wife and their children, Y born in 2013 and now aged 9 years, and Z born in 2014 and now aged nearly 8 years (“the children”), together with the child of the wife from a previous relationship, X born in 2008 and aged 13 years occupied the FMH until 1 April 2022. At that time, the husband departed the home, taking up rental accommodation in Suburb C, and leaving the wife and children to have a then sole occupation of the FMH. That sole occupation is intended by the wife and her parents to be enlarged to include the wife’s parents upon settlement of the sale of the wife’s parents family home. The husband’s permission has not been sought in respect of this occupation. Whilst the children live with the wife they spend time and communicate with the husband.
Relevant Procedural Background
By consent order made 3 February 2021, the parties agreed to the appointment of a single expert to value M Pty Ltd as trustee for the M Trust (collectively “M Group.”) and agreed to jointly instruct a single expert to value the FMH. Those orders, were relevantly, as follows:
1.The parties jointly instruct [N Pty Ltd] as single expert to value [M Pty Ltd] as trustee for the [M Trust] (collectively “[M Group]”) which comprises:
(i) [M2 Pty Ltd];
(ii) [M3 Pty Ltd]; and
(iii) [O Pty Ltd]; and
2The parties jointly instruct [P Valuers] to value the property at [B Street, Suburb C].
3.The costs of the valuations at orders 1 and 2 hereof be paid by [M Group] at first instance.
On 3 February 2021, the parties also consented to orders wherein Dr E, a consultant clinical psychologist, (“Dr E”) would prepare an assessment and report as to parenting matters in circumstances where the parties’ issues remained unresolved. Dr E was also to be provided with a psychiatric assessment of the parties as prepared by Dr K. Those consent orders were, relevantly, as follows:
6.The parties continue with ongoing therapeutic reportable counselling with [Dr E] for up to eight sessions in an endeavour to agree upon parenting arrangements with the cost of such counselling to be met by the [M Group] at first instance.
7.In the event that the therapeutic counselling referred to in Order 6 above fails to resolve parenting issues then the parties do all things required to enable an assessment and report to be completed by [Dr E], psychologist as to with whom [Y] born [in] 2013 and [Z] born [in] 2014 should live and spend time with, and what time the husband should spend with [X] born [in] 2008.
8.The parties forthwith do all things required to engage [Dr K], psychiatrist, to undertake a psychiatric assessment and report of both parties with the cost of such report to be paid for by the [M Pty Ltd] at first instance, and such report to be made available to [Dr E].
On 16 June 2021, Q Lawyers filed a Notice of Address for Service on behalf of the wife such that L Lawyers no longer acted for the wife.
On 27 August 2021, Deputy Chief Justice McClelland made orders with a notation as follows:
1.This matter remains in the pool of matters awaiting allocation of a hearing date with no loss of priority.
THE COURT NOTES THAT:
A.The Court is extremely concerned that the litigious approach of the parties is irrational in the context of the property pool. It appears to the court that the litigation being engaged in is disproportionate to the property pool and the Court strongly recommends that the parties and their legal advisors revise the attitude that they are taking in this matter.
On 10 September 2021, an affidavit sworn by the single expert witness Mr R of N Pty Ltd (“N Pty Ltd”) was filed. That valuation went to the expert valuation of the M Pty Ltd.
On 14 September 2021, Justice Wilson made orders by consent providing for the parties to attend a mediation (for the second time) and providing for the parties to obtain their own sworn valuations of the FMH; to exchange those valuations; and, relevantly, as follows:
5.For the purposes of valuations of the [Suburb C] property –
….
d)if there is a difference in the valuations, the parties must engage his and her valuer to confer with the other as to the matters in Rule 7.31(3) of the FCFCOA Rules with the joint statement to be completed no later than 7 October 2021 and if not the mediation must proceed on 8 October 2021 regardless.
Further orders made on 14 September 2021 included:
6.If the wife’s parents list their property for sale, the wife must within 48 hours provide to the husband’s lawyers evidence of that fact.
7.[T Accountants] are hereby appointed by the parties to provide by no later than 1 October 2021 advice regarding the husband retaining the [M Pty Ltd] and the tax effective options and/or implications for the parties with respect to the Div 7A loans.
8.Until further order, the parties are restrained from doing any act or thing detrimental to the standing and/or value of the [M Pty Ltd].
9.Until further order, the parties must jointly instruct [Mr S] of [M Pty Ltd] to report monthly to the parties (on the 20th of each month) as to the following –
a)revenue;
b)expenses;
c)cash in bank;
d)new contracts; and
e)any other matter of concern to the CEO.
On 30 September 2021, an affidavit annexing a single expert valuation of the FMH and sworn by Mr U (“Mr U”) of P Valuers was filed. That valuation noted that the FMH was built on freehold land of over 4000 square metres and that such land had a building on it and had a valuation as at 26 February 2021 of $3,000,000 exclusive of GST.
On 4 November 2021, an affidavit by single expert Dr E was filed, annexing a copy of his Family Report.
On 9 November 2021, a further affidavit was filed by single expert Mr U. Mr U acknowledged in that affidavit that his updated valuation was prepared on instruction from Q Lawyers only, that is the wife’s solicitors. That valuation date was 23 September 2021, and the valuation of the FMH was then $3,250,000.
On 9 November 2021, a further affidavit sworn by Dr E was filed. That affidavit contained Dr E’s answers to questions asked of him by the husband’s solicitor following the release of his report and in accordance with the single expert rules as set it Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
On 3 December 2021, a further affidavit of Dr E was filed containing his then recommendations.
On 27 January 2022, V Lawyers filed a Notice of Address for Service on behalf of the wife such that Q Lawyers no longer acted for the wife.
On 4 February 2022, a Senior Judicial Registrar made the following order:
1.That the parties be at liberty to provide the 67Z response produced by the Department of Families Fairness and Housing on 13 January 2022 relating to these proceedings to [Dr E] and [Dr W].
On 15 February 2022, the Senior Judicial Registrar made orders for Victoria Legal Aid to appoint an Independent Children’s Lawyer (“ICL”) pursuant to s 68L(2) of the Act. Further interim parenting orders were made by consent as follows:
4.The children live with the mother.
5.The children spend time with the father, as and from the date of these orders:
a.During all school term periods, as follows:
i.Each week from the conclusion of school (or 3.30pm) until 6.30pm on Wednesday, commencing Wednesday, 16 February 2022; and
ii.Each alternate week from the conclusion of school (or 3.30pm) on Friday until 6.30pm Sunday, commencing Friday, 18 February 2022; and
b.During the Term 1 school holiday period in 2022:
i.From the conclusion of school (or 3.30pm) on Friday, 8 April 2022 until 9.00am on Monday, 11 April 2022; and
ii.From 12 noon on Sunday, 17 April 2022 (Easter Sunday) until 9.00am on Wednesday, 20 April 2022.
6.Unless otherwise agreed between the parties in writing, the party in whose care the children are at the time, facilitate FaceTime communication between the children and the other parent at any reasonable time, upon a request of the children or either of them.
7.Each party be and is hereby required to provide to the other parent in writing, not less than 24 hours prior to any appointment, details of any appointment for, or in relation to, the children (or either one of them) with a health care provider and/or clinician (including school psychologist), save in an emergency.
8.Within seven (7) days of the date of these orders, the father provide, or cause to be provided, to each of the children’s current treating health care providers and/or clinicians, a copy of these orders.
9.Each party be and is hereby required to forthwith provide, or cause to be provided, to the other party, any and all future written communications between him or her and [BB School] (or such other school as the children may attend from time to time) and to give effect to this order, each party forthwith give an irrevocable authority to [BB School] (or such as school as the children may attend from time to time) to provide a copy of all correspondence to both parties.
10.Each party be and is hereby required to provide, or cause to be provided, to the other party in writing not less than 24 hours prior to the scheduled appointment, details of any appointments for, or in relation to, the children (or either one of them) with [BB School] (or such other school as may be attended by the children from time to time).
11.Within seven (7) days of the date of these orders, the father provide, or cause to be provided, to [BB School] (or such other school as the children may attend from time to time), a copy of these orders.
12.Leave be granted to permit each party to publish in Case No… in the Magistrates’ Court of Victoria, any and all documents filed or obtained in, and/or emanating from, these proceedings including but not limited to applications, responses, affidavits and reports including reports from single expert witnesses and reports from the Department of Families Fairness and Housing – Child Protection.
13.All extant interim applications be otherwise dismissed.
14.Pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
On 5 May 2022, a further affidavit sworn by Mr U was filed providing an updated valuation of the FMH on instruction by the husband’s solicitors Kennedy Partners. Kennedy Partners had attempted to jointly instruct the single expert but the wife had declined. That updated valuation by the earlier appointed single expert provided a valuation of the FMH at $4,400,000 as at 23 April 2022.
On 6 May 2022, an affidavit was filed as affirmed by Dr E annexing his Updated Family Report dated 2 May 2022 and responses to questions raised in a joint letter from the parties.
On 9 May 2022, the final hearing of the matter commenced.
On 13 May 2022, the Court made orders adjourning the part-heard proceeding to the 22 August 2022 at 10.00am for five further days. Subsequently, it became apparent that Dr E would not be available at any time in those five days and accordingly the matter was listed to a part-heard final hearing to commence 22 August 2022 for four days, and thereafter for a single day on 9 September 2022. As at 13 May 2022, the wife remained in the witness box subject to cross-examination by counsel for the Independent Children’s lawyer (“ICL”). Otherwise, the Court made interim parenting orders by consent.
At the commencement of the trial and as set out in her outline of case document, the wife relied upon her Amended Initiating Application filed 1 April 2022, her trial affidavit filed 1 April 2022, her further affidavits filed 29 April 2022, and her Financial Statement filed 1 April 2022. She also relied upon the valuation report of P Valuers of 23 September 2021 as filed on 9 November 2021. Otherwise the wife had sought and was granted leave to rely upon an affidavit of Mr AA, accountant.
On 17 June 2022, the wife filed a Notice of Address for Service as a litigant in person. She indicated in the court room on 22 July 2022, that she had lodged a professional complaint against the last two of three solicitors who represented her. She has also lodged a professional complaint against Dr E.
On 6 July 2022, the Court on its own motion listed the matter for mention in view of the wife continuing the litigation as a litigant in person. On that day, a section 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) order was made on a discretionary basis making provision for the wife to obtain legal representation from Victoria Legal Aid to the extent of that representation being obtained for the balance of the proceeding or for the purpose of cross-examining the husband at the discretion of Victoria Legal Aid.
On 14 July 2022, the wife filed an Application in a Proceeding seeking a raft of orders being 24 in number. The wife subsequently filed an Amended Application in a Proceeding on the 20 July 2022 and a Further Amended Application in a Proceeding on 21 July 2022. The wife filed her Further Amended Application in a Proceeding at 5.12pm on 21 July 2022, and served that document and supporting affidavit filed 21 July 2022 on each of the solicitors for the husband and ICL later that evening.
Consideration
In the filing of her material the wife failed to comply with the Central Practice Direction – Family Law Case Management which provides that a party may only file two Applications in a Proceeding without leave of the Court. The Court has an obligation to reduce delay and cost and to manage its proceedings.
The wife’s material failed also to comply with Chapter 5 of the Rules and in particular r 5.08(1). Her affidavit and annexures were lengthy. Neither the husband nor the ICL filed a Response to the wife’s Application in a Proceeding noting that the listing date, being only a week after the application was filed, was before any such response was required to be filed in accordance with r 2.18(2) of the Rules. Further, I note that the wife filed an Amended Application in a Proceeding four business days after filing her application and then a day later a Further Amended Application in a Proceeding in breach of r 2.23 of the Rules. The Court did not grant leave to the wife to rely upon this further document.
There has been fairly constant litigation between the parties throughout the course of the proceeding and it shows no signs of abating. The wife’s filing of three affidavits and three applications between the 15 July 2022 and 21 July 2022 is an example of the unrestrained nature of this litigation. The wife then wished to rely on each of her affidavits not only on the hearing of the Amended Application in a Proceeding but in respect of the trial generally. The Court did not grant the wife leave to do so for the reasons which follow.
Both the husband and ICL opposed all of the applications as made by the wife and both sought dismissal of those Applications in a Proceeding. The husband’s counsel submitted that if there was to be an interim defended hearing of the wife’s applications beyond that limited hearing that was afforded to the matter on 22 July 2022, that the husband should be given an opportunity to be heard and in accordance with the Rules there should be a listing of the hearing at least 28 days after the 15 July 2022.
The Court determined to dismiss the Amended Application in a Proceeding as filed by the wife.
The Further Amended Application in a Proceeding filed 21 July 2022, related in particular to the lodging of a caveat over the FMH by the husband’s lawyers. As submitted by counsel for the husband, how that is to be dealt with is a matter for trial and for final orders and is not a matter for an Application in a Proceeding at this point where the wife is subject to cross-examination; the trial is part-heard and ongoing; and where the circumstances are such that there is no issue arising at the present time that would require that matter to be addressed on an interlocutory basis.
The affidavit in support of the Further Amended Application in a Case was filed within two business days of the hearing in breach of the Rules. The content of that affidavit was irrelevant to the orders sought in the application and was simply the wife seeking to impermissibly adduce further and not new evidence, and/or to repeat evidence already given by her during the trial. Leave was not granted for the wife at the interim defended hearing to rely upon her Further Amended Application in Proceeding and supporting affidavit filed 21 July 2022.
The wife also sought to rely upon as further trial evidence the contents of her affidavits filed 14 and 20 July 2022.[1] The wife filed her trial material prior to the commencement of the trial and in accordance with the trial directions. The trial commenced on 9 May 2022 and was adjourned on 13 May 2022. The wife remains in the witness box and has given extensive evidence both in her affidavit material, being her trial affidavit and affidavit in response to the husband’s affidavit, and in cross-examination of her during the course of the trial. The wife was represented by solicitors throughout, and until the part-heard adjournment of the proceeding had ample opportunity to put that evidence on which she relies before the Court. Most of the evidence in these affidavits pre dates the trial and was available to be used by her in her trial affidavit or affidavit in reply. Whilst there was some new evidence which the wife sought to adduce, it was not evidence relevant to the issues at trial. The filing of her material has occasioned considerable legal costs to the husband, and to allow an irrelevant escalation and/or repetition of evidence to be placed before the Court by the wife is highly prejudicial to the husband and vastly increases the legal costs incurred by him. In part the evidence on which the wife seeks to rely represents an attempt by her to re-argue matters and to adduce further evidence, but not new evidence, in relation to those matters that have already been dealt with by extensive cross-examination of her in the trial to date.
[1] Amended Application in a Proceeding filed 20 July 2022, paragraph 3.
I turn below to the specific orders as sought by the wife.
The wife sought the production by Dr E of his notes written throughout the period of time in which he has been involved with the family. The issuing of a subpoena to Dr E was supported by the ICL and was an order that the Court was prepared to make because, as submitted by the ICL, those notes could be voluminous and there may be insufficient time at the trial for the wife, by then a litigant in person, to fully engage with such notes. That order was not opposed by the husband after the ICL had made relevant submissions in respect of it. That order was made by consent.
The wife sought to adjourn the part-heard trial as a consequence of the s 102NA of the Act order made 6 July 2022.[2] Any adjournment of the trial was opposed by the husband and the ICL. The ICL submitted that the best interests of the children would be promoted by a conclusion to the trial and the conflict between the parties, and that any delay in reaching that conclusion would be highly detrimental to the children’s welfare. Counsel for the husband submitted that solicitors CC Lawyers had accepted the VLA appointment to cross-examine the husband. Such confirmation was received by the parties on 18 July 2022 and from that date, there was a further five week period before the trial. Thus, it was submitted, the wife had plenty of time to communicate that which she wished to, to counsel acting on her behalf, and for that counsel and instructing solicitors to be properly prepared. I accepted that submission.
[2] Amended Application in a Proceeding, filed 20 July 2022, paragraph 1.
The wife nevertheless continued to pursue her adjournment application. I note that she continues to reside in the FMH and seeks to buy out the husband’s interest whilst the husband has sought the sale of that home since the instigation of the proceeding. The wife also seeks that her parents reside in that home with her and they have sold their home in pursuit of their move into the FMH. In my view, a conclusion of the proceeding is needed and there is no proper basis for a further adjournment. Additionally, any adjournment might require interim orders to be made as to the sale of the FMH to meet debt obligations including mortgage arrears, amongst other things.
The wife also argued, to support her application for an adjournment of the part-heard trial, that further valuations in respect of the FMH, and in respect of the DD Trust (which had been given a market value of $50,000 in the N Pty Ltd valuation) were required to be undertaken.
These matters also did not result in the Court determining in a discretionary exercise that an adjournment of the part-heard trial should occur. That would be to unnecessarily delay the proceeding and be unfairly prejudicial to the husband. Further it would be an inefficient use of the Court, as a publicly funded resource, which weakens public confidence in the judicial system. This litigation is advanced, valuations have been obtained, and each of the parties have had ample opportunity to identify the issues that they have wished to agitate, and to agitate them.
I note also that the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner.[3] The Rules prescribe that the Court will apply the Rules in a way that among other things gives appropriate share of the Court resources to a case taking into account other cases.[4]
[3] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04.
[4] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.07(4).
The above reasons are applicable to the dismissal of Orders 2, 13, 14 and 17 as sought by the wife in her Amended Application in a Proceeding and in particular:
(a)Order 2 makes no sense and is not a proper basis for the application;
(b)Order 13 (valuation of the DD Trust) was determined by the N Pty Ltd valuation, being a valuation prepared by a jointly appointed single expert. The wife did not raise this valuation as an issue whilst represented by Senior Counsel and experienced lawyers over the course of the trial which has run to date. The instructions as to the value being at market value were provided jointly by the parties as indicated in the N Pty Ltd valuation. The wife can cross-examine the husband on the evidence and to that end use any other evidence she obtains for that purpose;
(c)as to Order 14, the wife was invited to jointly value the FMH at a point closer to trial, being 9 May 2022, but refused to co-operate. Instead she sought to rely on an outdated valuation being the valuation of September 2021. The wife considers that there may now be a reduction in the valuation of the property as determined by Mr U in his last valuation and so she sought a further joint valuation to be obtained and paid for by the husband. That was opposed by counsel for the husband who noted that the wife had been asked many times to join in an updated valuation shortly before trial and she had refused. The Court was willing to consider the wife obtaining her own adversarial valuation to use in evidence and/or for the purposes of cross-examining Mr U at the resumed trial. An order to that effect was not opposed by the other parties and made by consent; and
(d)Order 17 is not an order that the Court will make. The nature of the evidence sought, the actual witnesses to be subpoenaed, and the relevance of the evidence were not matters provided to the Court by the wife. Leave to file a subpoena to the Department of Families, Fairness and Housing (“DFFH”) workers as witnesses is not relevant to these proceedings and is a fishing exercise. The DFFH s 67Z of the Act letter to the Court dated 4 March 2022 was available to the parties before trial and none of the parties sought to obtain further evidence as a consequence of their viewing of such evidence.
Orders as sought in 4, 5 and 6 of the wife’s Amended Application in a Proceeding are governed by the Rules. There was no evidence as to any non-compliance by the husband who will continue to comply with his obligations pursuant to the Rules. Otherwise, the limited matters sought by the wife as to the husband’s discovery in respect of the DD Trust and EE Trust is discovery the husband will provide as part of his ongoing disclosure obligations and prior to the resumption of the trial. Whilst the husband submitted there was no need for an order to that effect, he nevertheless indicated that he was prepared to consent to such order.
Order 7 to 12, 18 and 24 are all matters that are appropriate to be determined at final hearing and not in an Application in a Proceeding filed where there is a part-heard trial proceeding.
Order 16 as sought by the wife, which was to strike out Dr E’s evidence, is not an order the Court will make. That order was opposed by the ICL and the husband. It was a matter not argued at the trial and the wife did not open her case on that basis. Furthermore, the wife did not oppose Dr E proceeding to the preparation of a second Family Report following his first Family Report being prepared and dated 17 September 2021. Dr E has been considerably involved over a lengthy period of time in the parenting orders aspect of this trial and is a vastly experienced Clinical Psychologist who was appointed jointly as a single expert. The wife of course has an opportunity to cross-examine Dr E on his evidence.
Orders 19, 20 and 21 were resolved by the parties at hearing on 22 July 2022 and consent orders were made regarding Z’s attendance upon Ms D, Psychologist at F Psychologists in Suburb H.
Order 22 and 23 as sought by the wife are matters for the final hearing to the extent that they are decipherable. An injunction sought can only bind the parties to the proceeding.
Transcript
The wife made what appeared to be an oral application in a proceeding for the provision to her of a hardcopy transcript of proceedings in this matter (“transcript”). It was indicated to the wife that she could access the transcript at any time. Following the hearing on 22 July 2022, in correspondence to the Court of 16 August 2022 the wife requested that:
...the Court provide a transcript to VLA so that the appointed Counsel and myself can adequately prepare for trial in circumstances where:
- Notes from the part-heard trial are currently being withheld by my former solicitor (…), noting that I have sought the assistance of the VLSBC to obtain same.
- The cost of the transcript is prohibitive.
- A transcript is required expeditiously noting that there was an inexplicable delay in receiving a ‘next day’ transcript from the 67-minute Defended Hearing on 22 July 2022 (ordered on 22 July 2022 but not received until 2 August 2022).
An adjournment and the availability of a transcript will:
- Reduce complexity and preparation time, addressing the issue of willingness to take on my matter under the 102NA grant as identified by [CC Lawyers].
- Afford VLA the time needed to arrange Counsel.
- Ensure Natural Justice and procedural fairness.
The Court notes that the Rules are silent about the provision of transcript save for Chapter 13, which deals with Appeals to the Full Court.
The Court does not have a practice note as to the provision of transcript to parties in the circumstances of the wife. There is however information on the Court’s website which provides relevantly as follows:
Provision of transcript to parties by the Court
The Court does not provide transcripts to litigants at the Court's expense.
In limited circumstances, if the Court has already obtained a transcript, you may be permitted to peruse (but not copy) the Court's transcript in the court registry. The Court does not order transcript for all events so access to the transcript on the Court file may not always be available.
Occasionally the transcript of proceedings will constitute the reasons. In such instances, if reasons are required for the purposes of an appeal, the Court may provide a copy of the transcript, or portions of the transcript, to the parties and the Appeal Court for the purpose of the appeal.
In some instances parties may be provided with the transcript of oral reports by family consultants undertaken pursuant to section 11F of the Family Law Act 1975. This is at the discretion of the presiding judicial officer.
Access to court recordings
Please note that audio recording of matters heard in the Court are only available in exceptional circumstances and when approved by the relevant Registry Manager.
When making a request to the relevant Registry Manager to access recordings clearly set out the reasons why a party wishes to access recordings. Access to recordings will be considered on a case-by-case basis.
Should approval be provided by the Registry Manager to access recordings, the necessary facilities and supervision will be arranged, and a fee will be payable to Auscript.
In some instances, parties may wish to listen to recordings of their proceeding before a Judge (or before a Registrar where it has been recorded) and select specific segments for written transcription.
Please note that the recording or copying of audio files is strictly prohibited.
As with the provision of transcripts, access will only be provided to recordings of proceedings, not judgments, rulings or orders. (include that part about the transcript on the court website – audio & physical transcript).
In Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648, Judge Lucev relevantly described the provision of transcripts to litigants in the Court as follows:[5]
[5] Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648.
29.A Full Court of the former Family Court of Australia (now the Federal Circuit and Family Court of Australia (Division 1) observed in Forbes v Bream [2008] FamCAFC 189; (2008) 222 FLR 96 (“Forbes”) at [28]-[36] per Bryant CJ, Boland and Stevenson JJ as follows (italics in original):
28.From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
29.There is no legislative basis in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) (the Rules) providing for such transcript to be made available by the Court. The Rules relating to appeals deal specifically with the obligation to provide a transcript. Rule 22.23 states that the "appellant or, if so ordered, the cross-appellant must arrange to obtain the relevant parts of the transcript of the hearing". In contrast, r 22.24 enables the Court to order that the Appeal Registrar, rather than the appellant, prepare the appeal books, if "exceptional hardship" would otherwise be caused to the appellant. However, the note to r 22.24 clarifies that even if the appellant is excused from preparing the appeal books because of “exceptional hardship”, the obligation remains upon the appellant to obtain the transcript of proceedings pursuant to r 22.23.
30.It logically follows from the Rules that ordinarily the appellant should bear the cost of provision of the transcript at least in the first instance. This has certainly been the case in practice in appeals heard in this Court. However, in this case the father states that he is impecunious and cannot afford to obtain a transcript so as to comply with the Rules. The question then is whether this Court has a residual discretion to order provision of a transcript at the Court's expense in such circumstances.
31.It has been assumed (without ever being decided) by this Court in several cases that such a discretion exists: see eg Andrews v Andrews (2007) 37 Fam LR 358 and Oakley v Cooper (2008) 219 FLR 431, but compare S and S (unreported, Full Court, Family Court, Lindenmayer, Kay, Gee, 20 June 1994) and In Marriage of Zabaneh (1991) 14 Fam LR 904.
32.In D v K (1998) 72 ALJR 1323 a majority of the High Court (McHugh J, with whom Callinan J agreed) said the following (at [4]):
“In the brief proceedings in the Full Court which ultimately led to the dismissal of the appeal, the only question that was discussed was whether the Full Court could order the provision of a transcript free of charge. The court took the view that it had no such power. There is no reason as at presently advised to doubt the correctness of that view.”
33. However, in the same case, Kirby J said (at [7]-[9]):
“In a proper case, this Court would, in my view, allow special leave to appeal to consider a refusal on the part of the Family Court of Australia to exercise its suggested discretion to:
1.Waive strict compliance with its rules relating to the filing of transcript in an appeal;
2.Order the provision of a transcript by Auscript if that were required in the interests of justice;
3.Dispense with filing of appeal papers in a formal sense; or
4.Ensure that officers of the Family Court gave assistance to a party to prepare the appeal papers where it would impose hardship on the appellant to do so. [See Family Court Rules , r 15(2).]
Rules of Court are the servants and not the master of the attainment of justice in our courts, as has been often said. [Clune v Watson [1882] Tarl 75; Bay Marine v Clayton Country Property (1986) 8 NSWLR 104 at 108]. It cannot be for the Executive or its agencies by the provision of funds for legal aid, or otherwise, effectively to control access to the appellate process of the courts and, in particular, the courts established under Ch III of the Constitution.
However, I agree that this case is not an appropriate vehicle to allow any of the foregoing issues to be considered. The findings of the primary judge were very strong. They appear to render the prospects of success in an appeal very small indeed. The applicant also indicated that he would wish to call new evidence in an appeal and that would rarely be allowed … ”
34.The Family Law Act is silent on the question of the provision of transcript and provides no obligation, nor in our view any impediment, to the Court providing transcript in a particular case. Although rr 22.23 and 22.24 place an obligation on the appellant (or cross-appellant) to provide transcript for insertion in the appeal book, the Court may dispense with the application of the Rules if warranted in a particular case. On one view this could mean simply that the requirement to provide transcript is waived but we do not consider the meaning to be necessarily so constrained.
35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum v Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour's explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court's expense if the parties are impecunious.
30.More recently the former Family Court in Darley and Darley [2019] FamCAFC 238 at [17] per Kent J quoted from Forbes at [34]-[36] per Bryant CJ, Boland and Stevenson JJ as set out above and continued as follows at [18]-[27] per Kent J (italics in original):
18.In Sampson & Hartnett (2013) FLC 93-542( Sampson ) the Full Court observed at [14], by reference to cases including Forbes , that a line of authority had emerged supportive of an approach that the Court may fund the cost of transcript “where the interests of justice required the provision of transcript so an appeal could be adequately prosecuted.” That Full Court observed at [16]:
“16.Although in Forbes & Bream (supra) the Court indicated that it did not need to define the circumstances in which the discretion of the Court to provide the transcript at its expense Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648 20 should be exercised, it seemed to us that it would be of assistance to the applicant in this case to have some indication of the matters about which she would need to satisfy the Court in support of her application. We did so cognisant of the fact that this is a discretionary decision which will require consideration of the circumstances of each case and that the matters relevant to exercise of discretion cannot be circumscribed. However, there will be common factors identifiable in many such cases. We thought it would be helpful to identify these whilst acknowledging the weight to be attributed to any particular factor will vary from case-to-case. While the list of factors is not closed, those that we think may be of relevance in support of such an application are:
(a)Whether the case is a financial or parenting case.
(b)Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.
(c)The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
(d)The proportionality of the cost of the transcript to the appellant's anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
(e)The prima facie merits of the appeal.
(f)Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
(g)Any other relevant facts or circumstances.”
19.On the approach taken by the Full Court in Forbes, it can be seen that the question of the Court itself funding the provision of transcript only arises if the appellant (or cross-appellant) cannot afford the cost of transcript, that is, the party is impecunious. In contrast, arguably the approach of the Full Court in Sampson is to the effect that the appellant's ability to afford the cost of transcript is one factor (the list of factors not being closed) relevant to the exercise of discretion, rather than being a threshold question before the discretion arises.
20.From the inception of this Court it has never been routine that transcript is obtained by a judge at first instance and it has never been the practice for the Court to routinely provide transcript to parties. The Court has never been funded, or provided with any budget, to facilitate trial judges receiving transcript as a matter of course, nor is there any budget for the Court to routinely fund transcript being obtained from the commercial provider engaged by the Federal Courts to provide transcript to parties. In Forbes, the Full Court specifically noted that the cost of providing transcript was not provided for in the Court's budget and that incurring that cost “would impinge on other necessary expenditure for the proper operation of the Court.” Without the need to descend into the detail of this, it can fairly be observed that in the period of a little over a decade since Forbes was decided the budgetary constraints upon this Court's operations have dramatically tightened. The limitations expressed by the Full Court in Forbes have thus markedly reduced, such that it is all the more the case today to conclude that any cost incurred by the Court to provide transcript for an appeal necessarily impinges on the Court's ability to perform its functions.
21.Rule 22.18(1) of the FLR which imposes upon an appellant the responsibility for obtaining any transcript required for an appeal is a reflection of the reality that the Court does not have the resources to routinely provide transcript for appeals.
22.Of course, the Full Court which ultimately hears these appeals is not in any way bound by the determination made by me as a single judge determining this application, and thus the Full Court may revisit this conclusion. In my judgment, on the approach in Forbes, any discretion the Court has to, itself, fund the obtaining of transcript only arises if the appellant cannot afford the cost of transcript in circumstances where the interests of justice require the availability of transcript for the appeal to be adequately prosecuted. In short, the applicant would have to demonstrate impecuniosity for the discretion to arise. The mother does not establish that threshold.
23.If, on the approach in Sampson, inability of the appellant to afford the cost of transcript is not a threshold question, but is one factor in the exercise of discretion, then for myself it is difficult to envisage a case where it is not to be treated as a factor of determinative significance. In my judgment, impecuniosity of an applicant must be established to justify this Court taking the exceptional approach of funding the provision of transcript for an appeal.
24.In the present case, for the reasons already outlined, the applicant mother does not establish impecuniosity or that she cannot afford the cost of obtaining the relevant transcripts. Indeed, it can be seen that the likely cost of obtaining the full transcripts relevant to the contravention appeal and the s 102QB appeal is relatively modest vis-à-vis the mother's financial resources and the capital available to her. The mother apparently intends to represent herself in these proceedings and will thus not incur legal costs.
25.On this basis, I determine that there ought not be any order for the Court to fund the provision of any transcript for these appeals. As already noted, fortuitously, transcript is already available with respect to the parenting and property appeal.
26.In the event that the Court was not minded to fund provision of any transcript, the mother sought the opportunity to consider the audio recordings to determine whether something less than the whole of the transcript was necessary for her to prosecute each of the contravention appeal and the s 102QB appeal.
27.It is reasonable that the mother have that opportunity and I therefore ordered that the Registrar facilitate the mother having access to the audio for the contravention application heard on 2 April 2019, and the hearing with respect to the s 102QB order on 10 June 2019, by making an appointment, or multiple appointments as necessary, at the convenience of the Registry for this purpose. The question then of the mother obtaining less than a full transcript of either hearing can be revisited when this matter is reviewed by me on 9 January 2020.
There is no copy of a transcript which has already been paid for by either the Commonwealth or the other parties. So there is currently not a situation where the wife, by reason of a claimed impecuniosity, could be afforded an opportunity to inspect an electronic copy of a transcript in the Registry of the Court.
The wife is not presently legally represented. The wife was however represented, and by Senior Counsel, for the duration of the part-heard trial which commenced on 9 May 2022, and continued until 13 May 2022. An instructing solicitor was also present. The fact that the wife is now no longer legally represented is not necessarily an unusual occurrence. The wife has indicated that she has some level of unhappiness with her previous solicitors and also now submits that she is unable to afford the cost of obtaining a transcript. She nevertheless did obtain a transcript for the 22 July 2022. It is difficult to see, how these circumstances could be considered exceptional. Furthermore, I am not satisfied as to the wife’s claimed impecuniosity. She is not paying legal fees at the present time and residing in a home with a recent valuation of $4.4 million. She has an earning capacity and the support of her parents who having sold their home, intend to move into her home or have already done so. The wife did not address this aspect of the matter to any sufficient degree.
At the present time, the Court is not inclined to exercise its discretion to provide free of charge a copy of the trial transcript to the wife. The Court is particularly mindful the wife retained Senior Counsel for the duration of the trial before it became part-heard and the wife became unhappy with her legal representation. If in the interests of the administration of justice it becomes necessary to revisit this issue, the Court shall.
Costs
Both the husband and ICL sought that their costs be reserved in respect of the wife’s various Applications in a Proceeding, supporting affidavit material and the hearing of the matter on 22 July 2022. I note the wife was almost wholly unsuccessful in her pursuit of these orders and that her conduct caused unnecessary legal costs to be caused to the husband. I ordered that the costs of the husband and ICL of and incidental to this hearing be reserved to the trial.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 22 August 2022
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