Leeson & Gosley

Case [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…

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AGLC
Leeson & Gosley [2022] FedCFamC1F 600
Case
[2022] FedCFamC1F 600
Decision Date

CaseChat Overview and Summary

The case of Leeson & Gosley involved a dispute between the husband and wife following their separation in 2020. The wife filed multiple applications in a proceeding, seeking a variety of orders related to the family home, parenting arrangements, and financial matters. The husband and the Independent Children's Lawyer (ICL) opposed these applications and sought their dismissal. The wife also filed multiple affidavits and applications within a short period, which the Court found to be in breach of relevant rules and practice directions.

The primary legal issue before the Court was whether the wife's conduct in filing multiple applications and affidavits was compliant with the rules and practice directions. The Court needed to determine if the wife's actions were an abuse of process and whether the husband and ICL should be granted relief from the applications. Additionally, the Court had to consider whether the wife should be permitted to rely on her latest affidavit at the trial.

The Court found that the wife's conduct in filing multiple applications and affidavits was not in compliance with the rules and practice directions. The Court held that the wife's actions amounted to an abuse of process and granted the husband and ICL relief from the applications. The Court also found that the wife should not be permitted to rely on her latest affidavit at the trial, as it was filed after the deadline for filing evidence and without leave of the Court. The Court emphasised the importance of adhering to procedural rules and the need to manage proceedings to reduce delay and cost.

In light of the above, the Court dismissed the wife's Amended Application in a Proceeding and denied her leave to rely on her latest affidavit at the trial. The Further Amended Application in a Proceeding was also dismissed, as the Court found that the matter related to the lodging of a caveat over the family home was not suitable for interlocutory determination. The Court ordered that the wife's conduct be monitored to ensure compliance with the rules and practice directions in the future.

Orders

Orders of the court

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Background

Background to the litigation

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]; and2The 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.