Monaco and Daniels and Anor

[2020] FCWA 35

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

LOCATION: PERTH

CITATION: MONACO and DANIELS & ANOR [2020] FCWA 35

CORAM: O'BRIEN J

HEARD: 3 & 4 MARCH 2020

DELIVERED : 10 MARCH 2020

FILE NO/S: PTW 292 of 2008

BETWEEN: MR MONACO

First Applicant

AND

MS DANIELS

First Respondent

AND

MR HIGGS

Second Respondent

Catchwords:

PRACTICE AND PROCEDURE - whether ban on personal cross-examination pursuant to s 102NA of the Family Law Act 1975 (Cth) applies in the proceedings transferred from the Supreme Court of Western Australia pursuant to cross-vesting legislation.

PRACTICE AND PROCEDURE - rules of procedure and evidence to be applied where proceedings transferred under cross-vesting legislation - sequence of hearings where multiple parties in various proceedings.

PROPERTY - disclosure - variation of interim injunctions - turns on its own facts.

INJUNCTIONS - where party seeks injunctions restraining other parties and a solicitor from harassing, intimidating or "cyber-stalking" her - turns on its own facts.

PRACTICE AND PROCEDURE -where party seeks dismissal of interim application as frivolous or vexatious - where relevant application is simply dismissed on its merits.

Legislation:

Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)
Family Law Rules 2004 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)
Supreme Court Rules 1971 (WA)

Category: Not Reportable

Representation:

Counsel:

First Applicant	:	Ms Brown
First Respondent	:	Ms Oakley
Second Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms Johnston

Solicitors:

First Applicant	:	WL & KJ Everett Barrister & Solicitors
First Respondent	:	HBR Family Lawyers
Second Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Hickman Family Lawyers

Case(s) referred to in decision(s):

Re Wakim; Ex parte McNally (1999) 198 CLR 511

Attorney-General v Wentworth (1988) 14 NSWLR 481

In the Marriage of Farr (1976) FLC 90-133

In the Marriage of Saba (1984) FLC 91-579

Kennon & Kennon (1997) FLC 92-757

Madin & Palis (Costs) (2016) 55 Fam LR 59

Magill v Magill (2006) 226 CLR 551

Maxwell & Daniels [2019] FCWA 150

Marsden & Winch (2013) FLC 93-560

R v Dovey; Ex parte Ross (1979) 141 CLR 526

Reza & Sadir [2019] FamCA 404

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Monaco and Daniels has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1For some time, both the parties and the Court have been grappling with the issue of the appropriate path to bring this long-running and complex litigation to a conclusion.

2The litigation has a number of components:

(a)the parenting proceedings between the First Applicant, [Mr Monaco], and the First Respondent, [Ms Daniels], in relation to their [Child A], born [in] 2006;

(b)the financial proceedings between Mr Monaco and Ms Daniels, whereby Mr Monaco seeks to set aside orders for the alteration of property interests made by consent on 7 February 2008. That application is brought pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”);

(c)the associated claim of the Second Respondent, [Mr Higgs], who seeks a declaration that he is the equitable owner of a property at [Suburb A] retained by Ms Daniels pursuant to the consent orders, saying that he advanced money to Ms Daniels on various conditions including that he be registered as an owner of the property, and that those conditions were not met; and

(d)proceedings commenced in August 2018 by Ms Daniels in the Supreme Court of Western Australia against Mr Monaco, seeking damages for injuries allegedly inflicted by him. Both parties sought the transfer of those proceedings to this court pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) (“the cross-vesting legislation”), and a consent order to that effect was made in the Supreme Court [in] November 2018.

3The parenting proceedings, and the financial proceedings with the associated claim of Mr Higgs, came before [a previous Judge] for trial over 10 days in 2013 and 2014. His Honour was subsequently unable to deliver judgment, and on 22 June 2017 orders were made for the trial to resume before a different Judge. The matter was subsequently assigned to me.

4A number of issues arise in the consideration of the most appropriate path to be taken, in circumstances where the parties estimate that a further 10 days of hearing will be required to bring the various proceedings to a conclusion.

The involvement of each of the parties

5Mr Monaco and Ms Daniels are parties to each of the proceedings.

6Mr Higgs is not a party to the parenting proceedings, nor to the transferred proceedings. There is an Independent Children’s Lawyer (“ICL”) appointed in the parenting proceedings; self-evidently, she has no role to play in the financial proceedings, the associated claim of Mr Higgs, or the transferred proceedings. Trial arrangements which would require either Mr Higgs or the ICL to be present for hearing days associated with proceedings in which they have no involvement should be avoided to the extent possible, for obvious reasons.

7That said, it may emerge that evidence given in either the parenting or the financial proceedings is of relevance in the transferred proceedings. There is nothing to prevent any evidence sought to be adduced by either Mr Monaco or Ms Daniels in the transferred proceedings also being adduced in the parenting and financial proceedings if considered relevant.

8Questions therefore arise as to whether all or some of the various proceedings should be heard together, or separately. If the latter, questions arise as to the appropriate sequence of hearings. If the former, questions arise as to whether a trial can appropriately be structured so as to minimise the involvement of parties in parts of the hearing which are irrelevant to them.

9Issues also arise as to the rules of procedure and evidence which should apply in the various proceedings. Those issues in turn may inform the questions just posed.

The ban on personal cross-examination

10Since the matter was last before the court in January, and indeed at the commencement of the hearing on 3 March 2020, it was common ground that the determination as to whether some or all of the various proceedings should be heard together or separately would be first informed by issues which could arise by the operation of s 102NA of the Act.

11On 24 June 2019, I determined that a mandatory cross-examination ban was triggered in the parenting and financial proceedings, as between Mr Monaco and Ms Daniels, by virtue of the allegations in the present proceedings of family violence and Mr Monaco’s conviction in 2008 of an offence involving violence against Ms Daniels.[1] I determined further that the proceedings transferred from the Supreme Court were not properly characterised as proceedings under the Act and accordingly were not subject to s 102NA.[2]

[1] Maxwell & Daniels [2019] FCWA 150.

[2] Ibid, [85].

12Legal Aid Western Australia had advised the court at the last hearing that, acting on the basis of my earlier finding, it had determined that funding under the relevant Commonwealth scheme would extend only to the parenting and financial proceedings, and not to the transferred proceedings.

13Ms Daniels sought the opportunity to challenge my earlier ruling, and made an oral application for a declaration that the transferred proceedings were in fact properly characterised as proceedings under the Act. I permitted that course of action, as no order of the court is required to give effect to a finding that the relevant provisions do or do not apply in a particular case, and no such order was made. It remained open in my view for Ms Daniels to seek to revisit the finding notwithstanding that she did not seek to appeal any of the orders made on 24 June 2019. I also regarded it as procedurally fair to permit her to do so, given that my finding was made without the benefit of submissions from the parties.

14At the hearing on 3 March 2020, after submissions had been made, the matter was stood down for enquiries to be made as to the availability of counsel, and to afford the parties the opportunity to consider how they would submit the trial should proceed in the event that I dismissed Ms Daniels’s oral application, leaving a situation where the cross‑examination ban applied to parts of the proceedings but not to others. When the hearing resumed, I was informed that in fact, subsequent to the last hearing, the Department of the Attorney General has made funding available to Ms Daniels for the purpose of the transferred proceedings, bearing in mind that those proceedings are entirely about her allegations of family violence and the alleged impact of that violence on her.

15That being the case, Ms Daniels will now be represented for the entirety of the trial of the various proceedings.

16Given the confused progress of the matter to date, the delays which have occurred over the life of the proceedings, and the possibility that still further issues may arise between now and trial, I consider it appropriate nevertheless to deal with the submissions made prior to the Court being notified of the special grant of funding.

The submissions of Ms Daniels

17Ms Daniels’s submissions addressed an apparent perception by her that my earlier finding might have been based, at least in part, on issues perceived to arise by virtue of this court being a State court. If that was in fact Ms Daniels’s perception then, with no disrespect, she was mistaken. Her submissions to the effect that this court is able to exercise Federal jurisdiction are self-evidently correct.

18Ms Daniels submits that the tortious claim is a matrimonial cause, presumably meeting the definition of matrimonial cause (e) in s 4(1) of the Act, being “proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB)”.

19While acknowledging that, in her words, the concept of a matrimonial cause “does not cover any proceedings at all between the spouses; at most, it covers proceedings between spouses which pertain to their matrimonial relationship”, she asserts that:

“The causative link for the tortious claim stems back to the matrimonial relationship and the damage suffered can be established. [Mr Monaco] breached his duty of care owed to [her] as his wife and it was reasonably foreseeable that through his negligence a harm would be done.”

20Ms Daniels further submitted that the claim for damages against Mr Monaco is brought pursuant to s 119 of the Act, which is in the following terms:

Section 119 – Married Persons May Sue Each Other

119.Either party to a marriage may bring proceedings in contract or in tort against the other party.

Discussion and conclusion

21The fact that parties to a dispute are or were spouses does not of itself mean that there are relevant “circumstances arising out of the marital relationship”.[3] Relevantly for present purposes, the Full Court has observed, referring to a claim for damages for assault, that “[t]he only way in which such a claim for damages can be litigated in this Court is to attach that claim, via the cross-vesting legislation, to a claim within the original jurisdiction of this Court, essentially a claim under the Family Law Act”.[4] Further, the Full Court said: “… these are common law claims for damages for assault. They are not part of the ordinary jurisdiction of the Family Court. They are only heard by this Court as a consequence of the cross-vesting scheme…”[5] While those observations were made by the Full Court by reference to the then Commonwealth cross-vesting legislation, and prior to the decision in Re Wakim,[6] striking down that legislation, that does not diminish their relevance to the present issue.

[3] R v Dovey; Ex parte Ross (1979) 141 CLR 526, 532-533; In the Marriage of Farr (1976) FLC 90-133.

[4] Kennon & Kennon (1997) FLC 92-757, 84,280.

[5] Ibid, 84,281.

[6] Re Wakim; Ex parte McNally (1999) 198 CLR 511

22In short, I conclude that a claim for damages for personal injuries caused by one spouse to the other is not a matrimonial cause.

23Nor is such a claim brought pursuant to s 119 of the Act as submitted by Ms Daniels. Leaving aside the fact that where a matter is not properly characterised as a matrimonial cause it cannot be the subject of an application pursuant to the Act, the submission is based on an incorrect understanding of the meaning and effect of s 119.

24The common law concept of spousal immunity from suit flowed from a premise that husband and wife were one. The concept was progressively abrogated in Australian law, and s 119 abolished it entirely.[7]

[7] Magill v Magill (2006) 226 CLR 551.

25Ms Daniels’s submission is based on an assertion that s 119 does more than that. It does not. Section 119 removes obstacles to the bringing of a tortious claim by one spouse against another; it does not invest the Family Court with jurisdiction to deal with those matters.[8] That can come only from the exercise of State jurisdiction pursuant to the cross-vesting legislation or, potentially in appropriate cases, by the exercise of accrued jurisdiction. Neither course amounts to the relevant matter being properly characterised as a proceeding under the Act;[9] that characterisation is essential to the application of s 102NA.

[8] In the Marriage of Saba (1984) FLC 91-579.

[9] See for example, albeit in a different context, Reza & Sadir [2019] FamCA 404 and the cases there cited.

26I conclude that the transferred proceedings are not proceedings under the Act. The provisions of s 102NA accordingly do not apply to those proceedings. The oral application of Ms Daniels for a declaration to the contrary will be dismissed.

27I would not wish those findings to be misunderstood by any of the parties. The anomaly referred to in my earlier judgment whereby the component of the proceedings most centrally directed to issues of family violence and its effect on Ms Daniels was the only component not subject to legislative provisions designed to protect victims of family violence from personal cross-examination has been properly addressed by the provision of funding outside the strict parameters of the legislation. That can only be to the benefit of Ms Daniels and, for that matter, to the efficient conduct of the litigation. The consideration of Ms Daniels’s oral application, and its dismissal, need not affect that special grant of funding in any way; it does, however, address the possibility of issues arising between now and trial should, for example, Ms Daniels, or for that matter Mr Monaco, choose to be self‑represented in the transferred proceedings.

28I will return to the question of the appropriate path forward for the proceedings later in these reasons.

The Form 2 application of Mr Monaco filed on 22 January 2020

29By this application, Mr Monaco seeks:

(a)orders for disclosure by Ms Daniels of specific documents listed in the application;

(b)the discharge of an injunction granted by a Magistrate on 22 February 2012 restraining Ms Daniels from selling, encumbering, charging or in any way dealing with her interest in the Suburb A property;

(c)the imposition of a new injunction restraining Ms Daniels in the same terms, but permitting her to rent out the Suburb A property on terms both as to disclosure and the application of rental income to loans secured against the property.

30At a hearing on 28 January 2020, I ordered that Ms Daniels file and serve a response to that application, and any affidavit upon which she intended to rely, by no later than the close of Registry on 24 February 2020. While she has filed a number of documents in the interim, she has not complied with that order.

31The orders sought in that application by Mr Monaco relate to his understanding, as set out in his affidavit, that Ms Daniels may intend to move out of the Suburb A property which is central to the financial dispute, and may rent the property out.

32There is already in place an injunction restraining Ms Daniels from selling, encumbering, charging or in any way dealing with her interest in that property. Mr Monaco seeks to discharge that injunction only as a matter of form, given that he contemporaneously seeks to replace it with an identical injunction, modified so as to permit Ms Daniels to rent out the property and to require her to give disclosure in relation to any rental arrangements.

33Clearly, Ms Daniels should be permitted to rent out the property should she choose to do so. Unless and until the consent orders for property settlement are set aside or varied, and subject only to the existing injunction, the property is hers to do with as she wishes.

34By the same token, the disclosure sought by Mr Monaco at paragraph 1 of the Form 2 application is appropriate, falling as it does within Ms Daniels’s duty of disclosure in any event.

35Similarly, the relief sought at paragraph 2 of the Form 2 simply reflects the ongoing and continual nature of the duty of disclosure.

36That said, in circumstances where there is an existing consent order for the alteration of property interests, and the application for that order to be set aside or varied has not yet been heard, the relief sought by Mr Monaco at paragraph 4 of his application, other than subparagraph (a)(i) which merely seeks ongoing disclosure, in my view goes too far.

37There is no basis on the evidence presented for the intrusion on Ms Daniels’s privacy of the request for an order that she provide contact details of any agent engaged to manage the tenanting of the Suburb A property, and a written authority authorising Mr Monaco, Mr Higgs and their representatives to be in contact with and receive information from the agent in relation to any property inspections, repairs or other issues affecting, in the words of the application, the resale value of that property. It is far from established that any order altering the presently existing interests in that property will be made; enquiries as to resale value are significantly premature.

38Similarly, there is nothing in the evidence to support the making of a mandatory injunction requiring Ms Daniels to apply any rent received to the loans presently encumbering the property. As already noted, subject only to the existing injunction, the property is presently hers to do with as she sees fit. No doubt if Mr Monaco is successful in his substantive application any issues arising from any reduction for any reason in the value of the property, or the equity in it, will be addressed.

39There will be orders in terms of paragraphs 1, 2, 3, and 4(a)(i) only of Mr Monaco’s Form 2 application filed on 22 January 2020, which will otherwise be dismissed.

The Form 2 application filed by Ms Daniels on 4 February 2020

40By this application, Ms Daniels seeks:

(a)injunctions restraining Mr Monaco and Mr Higgs from “assaulting, harassing or molesting [her] in any way”;

(b)injunctions restraining Mr Monaco and Mr Higgs from “using any third-party” to do so, including, in her words, “the use of and acceptance of or encouragement of third parties volunteering information about [her]”;

(c)an injunction restraining Mr Monaco’s lawyer from, again in her words, “further cyberstalking [her] in any way.”

41By paragraph 4 of the orders she has drafted Ms Daniels says “[a]ssault, harass or molest includes all form of stalking, electronic forms of monitoring, hacking, cyber bullying and cyber stalking.”

42Mr Monaco filed a response to that application on 25 February 2020. The wording of that response is somewhat curious.

43At paragraph 1 he seeks a finding that the application is “frivolous or vexatious pursuant to s 118 of the Family Law Act”.

44At paragraph 2, he seeks that the application be dismissed as vexatious or frivolous pursuant to s 118(a) or in the alternative section 102QB(2)(a), or because the evidence adduced in Ms Daniels’s affidavit filed in support of it is insufficient to support the making of the orders sought. He otherwise seeks costs on an indemnity basis.

45Section 118 of the Act was repealed effective 1 September 2018.[10] Presumably what was intended to be sought by Mr Monaco was a finding, and a consequential order, pursuant to s 45A(4).

[10] Family Law Amendment (Family Violence and Other Measures) Act2018 (Cth).

46That section simply provides for the dismissal of proceedings which are frivolous, vexatious or an abuse of process; it contains no provision for restraint of a party from commencing further proceedings. Those provisions are contained in s 102QB. As noted by Mr Monaco, subsection (2)(a) of that section enables the Court to make an order staying or dismissing all or part of any proceedings in the court already instituted by the relevant applicant.

47That power, however, must be read in context. The terms of s 102QB clearly state that it applies only if a court is satisfied that the relevant applicant has frequently instituted or conducted vexatious proceedings in Australian courts or tribunal is, or has done so in concert with another person.

48The only declaration or finding sought by Mr Monaco is that the Form 2 application presently under consideration be determined to be frivolous or vexatious. He does not seek to address the requirements in s 102QB that the court be satisfied both that the person against whom the order is sought has instituted or conducted vexatious proceedings in a court or tribunal of the Commonwealth, a State or a Territory and that the institution or conduct of such proceedings has been “frequent”.

49The reference in the application to s 102QB reflects a misunderstanding of the operation of that section. Nevertheless, it is open for Mr Monaco to seek that the present Form 2 application be dismissed pursuant to s 45A(4).

50To the extent he seeks that order based on the proposition that the application is vexatious, in my view his submission must fail.

51Notwithstanding the legislative change earlier referred to, the principles informing a consideration of whether particular proceedings are “vexatious” have not changed. The Full Court in Marsden & Winch[11] agreed with the construction of the word “vexatious” adopted by Roden J in Attorney-General v Wentworth where His Honour said:

…relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required.

…

A subjective element, such as malice, lack of bona fides, or ulterior motive, seems to be both appropriate and necessary to give significance to the term “vexatious”… [12]

[11] Marsden & Winch (2013) FLC 93-560.

[12] Attorney-General v Wentworth (1988) 14 NSWLR 481 at 487

52The nonexclusive definition of vexatious proceedings contained in s 102QB(1) does not detract from those observations.

53In short, I am not satisfied that the relevant subjective element to properly characterise the application as vexatious has been established.

54The question then remains as to whether the evidence relied upon by Ms Daniels supports the making of the orders which she seeks, and, if not, whether the application is appropriately simply dismissed or dismissed as frivolous.

55In her affidavit sworn in support of the application on 4 February 2020, Ms Daniels alleges that Mr Monaco has ”stalked and harassed” her and “committed acts of violence” against her for, in her words, “the past 15 or more years”. She goes on to refer to Mr Monaco’s solicitor viewing an Instagram post made by her, that post having been exhibited to Mr Monaco’s earlier affidavit. In asserting that the solicitor has therefore, in her expression, “cyber stalked” her, notably Ms Daniels does not say anything about the privacy settings or otherwise applied to her Instagram account. Indeed, in Mr Monaco’s affidavit he refers to the post having appeared on Ms Daniels’s public Instagram page.

56The affidavit also refers to various messages between Mr Monaco and Child A annexed to his affidavit. She refers also to a text message from a neighbour of hers to Mr Monaco telling him that Ms Daniels had moved out of the home. She says she feels “violated that [Mr Monaco] and his partner would procure their friends who live at the end of [her] street to monitor [her]”, saying that is a form of stalking.

57None of those matters alleged support the making of the orders sought. Similarly, the matters alleged in very general terms against Mr Higgs and other persons named in the affidavit do not support the exercise by the Court of its power to grant injunctions restraining the persons named in the application.

58In his affidavit in response to the application, Mr Monaco denies the various allegations, and exhibits correspondence between Ms Daniels and his solicitors. It is unnecessary to refer to those exhibits in any detail. They show simply that Ms Daniels expressed the belief that the email system of the lawyers concerned was compromised and accordingly she would be blocking their emails, and that Mr Monaco’s lawyers denied there being any such problem.

59There is, of course, no opportunity short of trial for the disputed evidence of the parties to be tested. In those circumstances, I decline to draw a conclusion that Ms Daniels’s Form 2 application filed on 11 February 2020 was frivolous.

60Instead, the application will simply be dismissed on its merits.

61The response of Mr Monaco sought an order for indemnity costs. Leaving aside the clear authorities to the effect that costs on an indemnity basis will only be ordered in the most extreme cases,[13] the order sought could not be made given that basic evidentiary requirements as to the costs actually incurred have not been met.

[13] Madin & Palis (Costs) (2016) 55 Fam LR 59, 64 [23].

62In any event, given my earlier observations in relation to the testing of evidence, I consider it more appropriate to simply reserve the question of costs of the relevant Form 2 application and Form 2A response. Mr Monaco’s Form 2A response filed on 25 February 2020 will otherwise be dismissed. For the sake of completeness I note that Ms Daniels purported to file a response to that response on 27 February 2020, in which she only sought its dismissal and costs, in circumstances where she was self-represented [at the time of the interim applications] in any event. That response too will be dismissed.

The path forward

63In the financial proceedings, Mr Monaco relies (among other things) on s 79A(1)(d); arguing that in circumstances which have arisen since the making of the original consent order, being circumstances of an exceptional nature relating to the care of Child A, he or Child A will suffer hardship if the primary order is not varied or set aside. There is, accordingly, an evidentiary overlap between the parenting and financial proceedings which renders the separate hearing of those proceedings more problematic than might first have been anticipated.

64On balance, I conclude that those two proceedings should be heard together. While that will likely increase the number of days of trial at which the ICL and Mr Higgs will need to be present, I regretfully conclude that cannot be avoided. It may, of course, be that as the trial progresses Mr Higgs or the ICL may be appropriately excused from particular parts of it if they wish.

65The remaining question, therefore, is whether the transferred proceedings should be heard with the parenting and financial proceedings, or separately.

66That question in turn is informed by a number of factors:

(a)the potential for evidence in the parenting and financial proceedings, particularly in relation to family violence, to be relevant in the transferred proceedings;

(b)whether there is any forensic advantage or disadvantage to either party in either course, or any potential for procedural unfairness if one course is adopted rather than another;

(c)whether consistent rules of procedure and evidence are to be applied in all three proceedings; and

(d)practical matters as to the availability of listing dates, witnesses and counsel.

67The first of those matters is readily addressed. As already noted, if the transferred proceedings are heard separately there is no obstacle to the introduction in them of properly admissible evidence given in the parenting and financial proceedings, or vice versa.

68I squarely raised the second issue with counsel for each party at the hearing on 3 March 2020, and gave them the opportunity to take instructions in relation to it and consider it overnight. At the hearing on 4 March 2020, I was advised that neither counsel perceived a forensic disadvantage arising from the adoption of either course. Both initially sought that all proceedings be heard together at the one trial.

69Counsel for Mr Monaco has consistently taken the position that the Supreme Court Rules 1971 (WA) (“the Supreme Court Rules”) should be applied to the transferred proceedings. At the hearing on 3 March 2020; counsel for Ms Daniels did not have instructions on the point and again the opportunity was given for those instructions to be taken. At the subsequent hearing, I was advised that she did not seek to be heard on the point.

70The cross-vesting legislation permits the Court to apply to the transferred proceedings those rules of evidence and procedure which are in force in Western Australia, which the Court considers appropriate in the circumstances, and are rules that are applied in a superior court in Australia.

71That provision is consistent with that which appeared in the equivalent Federal legislation before it was struck down, and was considered by the Full Court in Kennon.[14] There, the court held that in most cross‑vested claims brought before the Family Court, it is generally appropriate to adopt the rules of evidence and procedure applied by the relevant state Supreme Court, those rules having been refined and adopted in order to effectively accommodate and manage claims of that nature. The court noted further the potential inadequacies of the Family Law Rules 2004 (Cth) (“the Family Law Rules”) to deal with such claims.

[14] Kennon & Kennon (1997) FLC 92-757, [132]-[134].

72While the Full Court’s observations in that regard leave open to a Trial Judge the flexibility to take a different approach in an appropriate case, I do not regard this as such a case. In my view, the nature of the transferred proceedings is such that the application of the relevant Supreme Court Rules is appropriate, both in the sense of being more likely to facilitate a just outcome in the proceedings, and in the sense of case management more generally.

73At the hearing on 3 March 2020, I asked counsel to consider whether in the event I determined that different rules and procedures were to be applied in the different proceedings, those proceedings could sensibly proceed to be heard in a single trial. As already noted, that is the course which both counsel initially sought at the further hearing the following day.

74Counsel did not perceive any procedural or other difficulties arising from the application of the Supreme Court Rules in one part of the trial, and the application of the Family Law Rules in others.

75Of course, the application of procedural rules is not the only issue.

76Section 69ZT of the Act provides that certain rules of evidence do not apply in child related proceedings, subject to the discretion contained in s 69ZT(3). Pursuant to s 69ZM(2)(b), s 69ZT may apply to proceedings which are not proceedings under Part VII of the Act if the parties to the proceedings consent. It is unnecessary to consider whether the transferred proceedings are captured by s 69ZM(2)(b), as there is no relevant consent.

77Accordingly, if the transferred proceedings were to be heard concurrently with the parenting and financial proceedings as initially proposed, potentially significant issues as to the admissibility of evidence could arise. Put simply, evidence given within the one trial which would be admissible in the parenting proceedings would not be admissible in the transferred proceedings, and proper objections taken in the context of the transferred proceedings would be overruled in the parenting proceedings.

78Notwithstanding the required ability of judicial officers to put from their minds material presented to them which is inadmissible, the potential for insurmountable difficulties in the conduct of the trial clearly arises, as does the potential for a perception by one or more parties that a decision has been influenced by evidence which was inadmissible in the relevant proceeding.

79When that issue was put squarely to counsel, both understood and accepted the difficulty which could arise. In those circumstances, both agreed that the better course was for the transferred proceedings to be heard separately from the proceedings under the Act. Both also agreed that, given the application of the rules of evidence to the transferred proceedings, those proceedings should be heard and determined first.

80Counsel for Mr Monaco estimated that four days would be required for the parenting case, one day for the financial case, and five days for the transferred proceedings.

81Counsel for Ms Daniels estimated that two to three days would be required for each of the parenting and financial cases, and three to four days for the transferred proceedings.

82The ICL estimated that two to three days would be required for the parenting proceedings. Mr Higgs estimated that one to two days would be required for the financial proceedings.

83Accordingly, having taken into account the availability of counsel and witnesses, at the conclusion of the hearing on 4 March 2020 I listed the transferred proceedings for trial to commence [late-2020] with an estimated hearing time of five days, and the proceedings under the Act for trial to commence [later in the year] also with an estimated hearing time of five days.

84Counsel agreed that these reasons could be published, and procedural orders in relation to the proceedings under the Act pronounced, from chambers without the need for further appearance. They further agreed that they would confer as to the necessary procedural orders in relation to the transferred proceedings, with a view to filing an agreed minute in that regard, having liberty to relist in the event agreement cannot be reached.

Orders

85There will be the following orders:

1.The oral application of Ms [Daniels] for a declaration that the proceedings transferred from the Supreme Court of Western Australia pursuant to the cross‑vesting legislation are proceedings under the Family Law Act 1975 (Cth) (“the Act”), and that accordingly the provisions of s 102NA of that Act apply to them, be and is hereby dismissed.

2.There will be orders in terms of paragraphs 1, 2, 3, and 4(a)(i) only of Mr [Monaco’s] Form 2 application filed on 22 January 2020, which will otherwise be dismissed.

3.The Form 2 application of Ms [Daniels] filed on 11 February 2020 be and is hereby dismissed.

4.The Form 2A response filed by Mr [Monaco] on 25 February 2020 is dismissed other than in relation to the question of costs, which are reserved to trial.

5.The Form 2A response of Ms [Daniels] filed on 27 February 2020 is dismissed.

6.The time within which Mr [Higgs] is to comply with the order contained in paragraph 14 of the orders made on 24 June 2019 be extended to the close of registry on 14 August 2020.

7.By no later than the close of Registry on 18 September 2020 Ms [Daniels] must file and serve in respect of the proceedings under the Family Law Act 1975 (Cth) (“the Act”) only:

(a)a single stand-alone affidavit comprising her evidence in chief beyond that given at the trial before the [previous Judge], such evidence to be limited to matters and events occurring after 5 June 2014;

(b)an affidavit of each non-expert witness, not being a witness who gave evidence at the previous hearing before the [previous Judge], upon which she seeks to rely;

(c)any updating affidavit containing further evidence in chief sought to be adduced by any witness who gave evidence at the previous hearing before the [previous Judge], such evidence to be limited to matters and events occurring after 5 June 2014;

(d)an up to date form 13 Financial Statement;

(e)an undertaking as to disclosure in the usual form, annexing a list of documents disclosed; and

(f)a Minute of proposed final orders setting out with particularity the orders to be sought by her at trial

8.By no later than the close of Registry on 9 October 2020 Mr [Monaco] and Mr [Higgs] each file and serve any short affidavit in response to any new matters raised in the affidavit material filed by Ms [Daniels] pursuant to the immediately preceding order;

9.The ICL be at liberty to file an affidavit sworn by [the family therapist] engaged by Mr [Monaco] and Ms [Daniels], at any appropriate time not less than 14 days prior to the status hearing.

10.In the event that an affidavit of [the family therapist] is to be filed, [the family therapist] and the single expert witness must confer and prepare a joint memorandum setting out the matters in respect of which they are in agreement and those matters in respect of which their opinions differ, such Minute to be filed by the ICL and served on all parties by no later than three days prior to the status hearing.

11.The parties and their lawyers if represented attend a status hearing in relation to the parenting and financial proceedings before me at 9:30 am on 13 October 2020.

12.By no later than the close of Registry on 9 October 2020 all parties file and serve their Papers for the Judge in the parenting and financial proceedings.

13.In addition to the matters usually required to be addressed in Papers for the Judge, each party must specify in that document the evidence from the trial before the [previous Judge] upon which they seek to rely and have admitted the purposes of the upcoming trial.

14.The parties in the parenting and financial proceedings (or their solicitors if represented) must confer in relation to any objections to evidence raised by any party in those proceedings, and file by the close of Registry on 15 October 2020 a joint schedule setting out:

(a)any objections raised by any party which are conceded; and

(b)any objections raised which are not conceded, with the schedule to make clear the basis of the objection and the response to it.

15.The proceedings transferred from the Supreme Court of Western Australia stand adjourned to trial, with liberty to Mr [Monaco] and Ms [Daniels] to seek a relisting for directions on reasonable notice in the event that all necessary procedural orders cannot be agreed.

16.Prior to seeking a relisting pursuant to the immediately preceding orders, the solicitors for Mr [Monaco] and Ms [Daniels] must personally confer in face-to-face meeting or by telephone and prepare and file a joint Minute setting out

(a)all procedural orders in relation to the transferred proceedings which can be made by consent;

(b)all procedural orders in relation to the transferred proceedings which are sought by one party but opposed by the other, with the minute to make clear the position of each party in relation to the disputed proposed orders; and

(c)an updated estimate of the number of days required for trial, against the background of that conferral.

17.The orders of 16 April 2019 insofar as they provided for the payment of setting down fees and hearing fees be and are hereby discharged.

18.The costs of all parties be reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

10 MARCH 2020