RICKERT & RICKERT

[2020] FamCA 842

FAMILY COURT OF AUSTRALIA

RICKERT & RICKERT [2020] FamCA 842

FAMILY LAW – PRACTICE AND PROCEDURE – Amendment of interim Application –Where the husband seeks to move on an amended minute of order at the commencement of the hearing – Where the original orders sought were for a partial property settlement – Where the amended orders additionally seek orders for litigation funding, in the alternative, pursuant to ss 114 and 117 of the Family Law Act1975 (Cth) – Where the wife’s legal representatives have not been served with the amended minute of orders in accordance with the Family Law Rules 2004 (Cth) – Reasons provided on behalf of the husband inadequate to justify overriding the wife’s right to procedural fairness – Application dismissed.

Family Law Act 1975 (Cth) ss 79, 114, 117
Family Law Rules 2004 (Cth) r 9.08

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

APPLICANT: Mr Rickert

RESPONDENT: Ms Rickert

FILE NUMBER: SYC 3533 of 2018

DATE DELIVERED: 24 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney by web conference

JUDGMENT OF: McClelland DCJ

HEARING DATE: 24 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Messenger Family Law

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Mills Oakley

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rickert & Rickert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3533 of 2018

Mr Rickert

Applicant

And

Ms Rickert

Respondent

REASONS FOR JUDGMENT

1. In this matter, Mr Rickert (“the husband”) seeks leave to amend his Amended Application in a Case filed on 7 September 2020 which has been marked MFI2 in these proceedings. He seeks to proceed on a document which is marked MFI1 titled ‘Orders Sought by the Husband’. 

2. The primary differences are in respect to proposed orders 2 and order 6 where the husband is seeking orders in the nature of what counsel for the husband has described as “a dollar for dollar order or, at least, the payment of litigation funding” which he contends the Court has power to make pursuant to ss 117, 79 or 114 of the Family Law Act 1975 (Cth) (“the Act”).

3. The husband’s Application to amend his Amended Application is opposed by Ms Rickert (“the wife”) in circumstances where the document, being MFI1, was served upon the wife at approximately 10.00am, or shortly after 10.00am, this morning. 

4. Rule 9.08 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

   Time for filing and service of response or reply

   (1) A party may respond to an application by filing and serving a Response (and any affidavit filed with it) at least 7 days before the date fixed for the case assessment conference, procedural hearing or hearing to which the response relates.

   …

   (2) If a party wishes to file a Reply, the party must file and serve the reply as soon as possible after the response is received.

   (3) All affidavits in a case started by an Application in a Case or a Response to an Application in a Case must be filed at least 2 days before the date fixed for the hearing.  

5. The clear and obvious intention of those rules is to ensure that, consistent with the principles of natural justice, the parties have appropriate notice of the case they are required to meet.

6. The High Court of Australia has said, on a number of occasions, that the Family Court of Australia, as a superior court of record, is obliged to afford procedural fairness to all parties and not act in a manner that can be described as “dispensing palm-tree justice”: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248.

7. Despite the fact that this Court does not operate on the basis of formal pleadings, in the absence of established urgency, any litigant before this Court is entitled to receive fair and appropriate notice of the matters being agitated before the Court.

8. The nature of the Application for an order pursuant to what has been described as “a litigation funding order” under ss 114 or 117 of the Act, as counsel for the husband contends, are proposed orders that require an assessment of entirely different criteria to those which would apply in respect to the husband’s initial Application in a Case filed 5 June 2020 or Amended Application in a Case filed 7 September 2020 where he seeks orders in the nature of a partial property distribution pursuant to s 79 of the Act.

9. The wife’s solicitors and senior counsel for the wife state that they have not had adequate opportunity to consider the legislative criteria and the relevant facts and circumstances to meet a further amended application in circumstances where the document marked MFI1 was only served on them today. That position is, with respect, entirely understandable and reasonable.

10. One reason advanced by counsel for the husband as to why the husband should be granted leave to rely on the documents served just today is, essentially, that, as a result of disclosure made by the wife in the period since 7 September 2020, it is contended that the wife has revealed that she has a financial resource from which she has been able to pay legal fees in the sum of approximately $200,000. Further, it is contended that the wife has not explained, despite being requested to do so, how it is reasonably practicable for her to secure the order she is seeking in her primary Application, including for her to retain the former matrimonial home. It is further contended that the wife has not made full and proper disclosure of her income.

11. In circumstances where, as I have noted, the relevant rules to which I have referred, consistent with the principles of procedural fairness, prescribe that documents to be relied upon at a hearing must be served at least two (2) days before the hearing. The reasons provided by counsel for the husband, even if established, do not, with respect, justify overriding the entitlement of the wife to receive that period of notice. 

12. To do so would see this Court riding roughshod over a party’s entitlement to procedural fairness which is a fundamental right of all litigants. 

13. On that basis, I do not give leave for there to be an amendment of the Amended Application in a Case filed on 7 September 2020 by the proposed orders which have be served upon the solicitor for the wife and provided to the Court just today.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 24 September 2020.

Associate: 

Date:  6 October 2020