Mansour & Kaleel
[2024] FedCFamC2F 106
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mansour & Kaleel [2024] FedCFamC2F 106
File number(s): PAC 5559 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 1 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application in a proceeding – application to reopen evidence of final hearing – application dismissed. Cases cited: Australian Securities and Investments Commission v Rich (2006) 235 ALR 587
Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240
Sweep & Sweep [2018] FamCAFC 228
Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 25 January 2024 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Strik Solicitor for the Respondent: Jack Rigg Solicitors ORDERS
PAC 5559 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KALEEL
Applicant
AND: MR MANSOUR
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding filed 14 November 2023 is 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is the determination of the wife’s Application in a Proceeding filed 14 November 2023 seeking leave of the Court to reopen the evidence in a final property hearing held on 12 and 13 October 2023 and in which judgment was reserved on 13 October 2023. This application is opposed by the husband.
The wife relies upon her affidavits filed 14 November 2023, 12 January 2024, and 23 January 2024.
The husband relies upon his Response to Application in a Proceeding filed 15 December 2023 and his supporting affidavit of the same date. He also relies upon his counsel’s Case Outline filed 25 January 2024.
Some brief background to the wife’s above application should be given.
The husband commenced proceedings in this Court through an Initiating Application for final orders filed 10 October 2022, in which he sought orders that two binding financial agreements be set aside, and he further sought property adjustment orders in the event that they were set aside. On 14 October 2022 he filed an Amended Initiating Application seeking similar orders.
On 23 November 2022 the wife filed a Response to Final Orders seeking declaratory relief that in effect the binding financial agreements should be upheld. On 3 January 2023 she filed an Amended Response to Final Orders seeking similar orders and consequential orders should the declaratory relief be made.
On 22 November 2022 the Court had listed the proceedings for a two day “final hearing” on 2 and 3 May 2023. A notation was made that, “The issue for determination at the threshold hearing is whether or not a binding financial agreement dated mid-2020 is valid, and if not, whether an earlier binding financial agreement dated late 2019 is valid or not.”
On 24 April 2023 the Court vacated the above hearing dates and appointed 12 and 13 October 2023 “as the fresh hearing date.”
On 21 September 2023, in the lead up to the final hearing on 12 and 13 October 2023, both parties filed case outlines. The husband’s Case Outline made contentions both in relation to the setting aside of the binding financial agreements and in relation to “adjustment under section 75 and section 79”.
The wife’s Case Outline for the final hearing had referred to documents relied upon by the wife including her affidavit sworn 6 April 2023 (and which related to both the binding financial agreements and property adjustment issues such as contributions), her Financial Questionnaire and Financial Statement, and affidavits of two solicitors relating to the binding financial agreements. The wife’s Case Outline under “Part D Financial proceedings. Complete this section only if you are seeking financial orders at the final hearing” contained a draft balance sheet. The Case Outline further went on to make discrete contentions as to, inter alia, contributions to the various assets, and made a contention as to future needs adjustment to the wife of 5 per cent. The Case Outline finally stated under the heading “justice and equity” that the wife’s proposed division is “as per the binding financial agreements”.
At the final hearing, held on 12 and 13 October 2023, both parties were represented by counsel and both agreed, and informed the Court on day two of the final hearing, through their counsel, that they were content for the Court to determine the entirety of the proceedings comprising both the binding financial agreements issues as well as final property adjustment issues in the event that the binding financial agreements were set aside. The Court notes that the wife’s counsel was afforded a brief period on day two to obtain instructions from the wife in relation to the Court determining the entirety of the proceedings. The Court proceeded to hear the entirety of the proceedings and ultimately reserved judgment at the end of day two on 13 October 2023.
Having reserved judgment, the Court, by way of email to the parties, on two occasions requested brief written submissions on two discrete issues. The first issue related to a balance sheet question relating to the parties’ joint equitable interest in a property at D Street, City E. Written submissions were received by the husband and wife’s respective legal representatives.
The second issue related to an order the Court was considering making relating to the husband causing his equitable interest in the above City E property to be transferred to the wife. The husband’s counsel provided a brief written submission. The wife, through her legal representatives, provided a written submission and attached to that written submission a copy of a contract to purchase for the above City E property and a balance sheet “showing the premarital assets.” The following day on 3 November 2023 the husband’s solicitors emailed the Court stating, inter alia, that objection was taken to the above balance sheet which was not agreed. The husband’s solicitors indicated in that email that they had a copy of the above contract. The Court observes that a joint balance sheet was entered into evidence at the final hearing and became Exhibit F.
On 6 November 2023 the wife’s solicitors filed a Notice of Ceasing to Act and thereafter the wife was self-represented.
On 8 November 2023 the Court emailed the parties stating, inter alia, that it was apparent from the receipt of the above material from the wife that the wife was seeking to place evidence before the Court that was not adduced at the final hearing and which was not permissible. It was indicated that should the wife propose to adduce fresh evidence before judgment was delivered she should file an Application in a Proceeding with a supporting affidavit seeking the Court’s leave to reopen the evidence by close of business 14 November 2023.
Again, the wife did proceed to file an Application in a Proceeding seeking to reopen the evidence from the final hearing.
LEGAL PRINCIPLES RELATING TO AN APPLICATION TO REOPEN EVIDENCE AFTER JUDGMENT HAS BEEN RESERVED
The husband’s Case Outline filed 25 January 2024 correctly sets out relevant legal principle and is now set out:
According to the Full Court in Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240 at [272], the fundamental principle to apply in an application to reopen a hearing after judgment has been reserved is “whether the interests of justice are better served by allowing the application or rejecting it.” This statement was cited with approval by the Full Court in Sweep & Sweep [2018] FamCAFC 228 at [45].
In determining whether the interests of justice are better served, consideration may be given to ‘discretionary factors’ set out in Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 at 593 (“ASIC v Rich”) being:
(a) the nature of the proceeding;
(b) whether the occasion for calling the further evidence ought reasonably to have been foreseen;
(c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
(d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case-in-chief;
(e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
(f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
(h) the public interest in the timely conclusion of litigation; and
(i) what explanation is offered by the plaintiff for not having called the evidence in-chief.
Also, Sweep & Sweep (No 2) [2018] FamCAFC 228 at paragraph 47 also assists the Court
Proper regard must be had to any prejudice to the other party (Gaspaldi & Gaspaldi [2008] FamCAFC 134. This includes the strain the litigation imposes on litigants. Stephens also demonstrates at [273] that the impact on court resources and prejudice to other litigants waiting to be heard may also be relevant considerations. The list is not exhaustive, but gives the flavour of how variable the considerations were to a judge in the position of the primary judge when asked to re-open the hearing.
(As per original)
DISCUSSION
On 25 January 2024, on the hearing of her Application in a Proceeding, the wife made submissions relating to what she contended was the importance of adducing fresh evidence relating to the husband having failed to previously make adequate financial disclosure in various respects. Yet she readily conceded to the Court that at the final hearing in October 2023 she had raised financial nondisclosure issues relating to the husband with her counsel.
It would have been quite open to counsel for the wife at the final hearing to have sought to further cross-examine the husband relating to alleged financial nondisclosure or to have sought an adjournment of the proceedings to enable the alleged financial nondisclosure issue to be examined by the wife. Neither course was taken by counsel for the wife.
Again, the wife’s counsel, having obtained instructions from the wife on day two of the final hearing, had agreed, together with the husband, that the Court determine the entirety of the proceedings namely the binding financial agreements issue and the property adjustment issue in the event that the agreements were set aside.
The wife asserts in her affidavit filed 12 January 2024 that the she “felt pressured under the circumstances to go through property settlement on the same day (the Court would interpolate at this point that that day appears to be day two of the final hearing, 13 October 2023) to avoid incurring further legal expenses since I have very little cash reserves left after the 12 and 13 October 2023 final hearing… Matters not related to threshold hearing were mostly deemed irrelevant and excluded by my then lawyers.” The Court observes that the wife adduces no supportive evidence in relation to these allegations against her former legal representatives. On the hearing of her application in a proceeding to reopen evidence she made a brief submission as to a complaint she had made against her legal representatives however she has adduced no evidence in this regard.
As submitted by the husband, the wife in her affidavit filed 6 April 2023 had adduced evidence relating to property adjustment issues. The husband had filed a trial affidavit on 19 March 2023 and the wife had filed her trial affidavit on 6 April 2023 and had included in her trial affidavit responses to the husband’s trial affidavit. The husband’s trial affidavit filed 19 March 2023 had made assertions not only in relation to the binding financial agreements but also in relation to financial and other contributions made by the parties to various property held by one or the other or jointly. Similarly, the wife’s trial affidavit made assertions not only as to the binding financial agreements but also in relation to financial and other contributions made by the parties to their property.
In this context, the Court observes that the parties’ relationship was a short one spanning the period from June 2019 to separation in about October 2021, a little over two years. As submitted by the husband, in both the first binding financial agreement dated late 2019 and in the second binding financial agreement dated mid-2020 both parties had set out and described their contended assets and liabilities, including some detail as to their property transactional history during their relationship. And the wife, it should be emphasised, at the final hearing, was seeking to uphold the validity of such binding financial agreements. Yet, to some not insignificant extent, the wife in her present application in a proceeding, seeks to introduce fresh evidence effectively challenging financial disclosures made by the husband in the binding financial agreements.
As discussed previously in these Reasons, both parties’ Case Outlines filed for the purpose of the final hearing held on 12 and 13 October 2023, to some not insignificant extent, dealt with not only binding financial agreement issues but property adjustment issues such as contributions to property.
As submitted by the husband, at the final hearing, both parties were cross-examined and two solicitors were cross-examined in relation to the binding financial agreements. Documentary tenders were made at the final hearing (Exhibits A to F) and oral submissions were made by the parties’ respective counsel. Again, this was a two-day final hearing held in mid-October 2023 with the Court noting that on day two the proceedings concluded at 5.15 pm.
As to the documentary tenders made at the final hearing arguably relating to property adjustment issues, it should be observed that the wife had tendered a bundle of documents, Exhibit D, being referred to as Exhibit K-1 in her trial affidavit, comprising, inter alia, bank statements of the husband, email correspondence between the parties, utility accounts of the wife (for example gas), credit card statements of account for the wife, and GG Store transactional records relating to renovations of the G Street, Suburb H property.
The wife seeks to revisit, with fresh evidence, an issue that was dealt with at final hearing namely an allegation by the wife that the husband had attempted to enter into a binding financial agreement with his previous wife. This issue had been raised in the wife’s trial affidavit and also in the husband’s affidavit in response filed 11 April 2023, and further, at the final hearing, the husband was cross-examined on this issue.
The wife seeks to adduce fresh evidence relating to the binding financial agreements including as to financial figures in those agreements. There is no persuasive basis to allow such evidence as the wife readily concedes she had attended the final hearing to deal with the binding financial agreements issues.
The Court is not persuaded that any part of the wife’s evidence adduced in her three affidavits (including annexures), relied upon in her present application in a proceeding to reopen the evidence, is of such relevance and probative value in respect to the property adjustment issues in these proceedings that the Court, in the interests of justice, would be justified in permitting the wife to reopen the evidence from the final hearing. In any event, and as contended by the husband, to a not insignificant extent, the wife’s proposed fresh evidence relates to factual matters previously sought to be addressed by both parties in their trial affidavits, in the binding financial agreements, and in evidence adduced at final hearing.
The husband submitted, in effect, that he would experience relevant prejudice if the wife was permitted to reopen the evidence from final hearing. There is force to this submission. These proceedings have been on foot since 2022. The husband would incur further significant legal fees if fresh evidence was permitted to be adduced by the wife and he may well endure the further stress of litigation. He may want to respond with a further affidavit in reply to the wife’s most recent two affidavits. Further hearing time would likely comprise at least two days with further cross-examination of both parties and oral submissions. Presently the wife is not legally represented and if she was non-legally represented at a further hearing that would extend the hearing time. The Court would not be able to allocate a further two or three-day hearing until the second half of 2024 by reason of its present Court commitments.
Accordingly, the wife’s Application in a Proceeding shall be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 1 February 2024
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