Stennard & Stennard (No 5)
[2025] FedCFamC1F 2
•9 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stennard & Stennard (No 5) [2025] FedCFamC1F 2
File number(s): CAC 2501 of 2020 Judgment of: GILL J Date of judgment: 9 January 2025 Catchwords: FAMILY LAW – PROPERTY – Application by the wife to file additional material following the conclusion of final hearing and after the deadline for filing of additional material and written submissions – Where orders were originally made for written submissions to be filed as the wife no longer wanted to attend Court – Where the wife provided various reasons for the late filing including IT problems and vandalism of her home – Where the additional material included a tender bundle of over 3000 pages and an updated Financial Statement – Discussion of principles regarding how the potential prejudice to the husband may be balanced with the interests of justice Cases cited: Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (formerly Pirelli Cavi E Sistemi Energia Spa) and Ors (No 4) (2012) 298 ALR 251; [2012] FCA 1323
Browne v Dunn (1893) 6 R 67
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 17 December 2024 Place: Canberra Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Ms Borger Solicitor for the Respondent: Dobinson Davey Clifford Simpson ORDERS
CAC 2501 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS STENNARD
Applicant
AND: MR STENNARD
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
9 JANUARY 2025
THE COURT ORDERS THAT:
1.The wife is permitted to rely upon her written submissions filed 17 December 2024 and minute of orders sought filed 15 December 2024.
2.The husband may file and serve any submissions in reply to those matters raised by the wife which have not already been addressed by him within 21 days.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment deals with an Application in a Proceeding filed by the wife, Ms Stennard on 9 December 2024. The Application comes after the close of submissions in the final property case between the wife and the husband, Mr Stennard. As described below, that final hearing had followed a difficult procedural pathway, and was itself conducted in an unorthodox manner due to the conduct of, and in order to accommodate, the wife.
The Application seeks an extension of the wife’s deadline for the filing and tender of further evidential material as provided for by procedural orders that also directed the preparation of written submissions to finalise the trial.
The wife now seeks to rely upon a tender bundle of some 3477 pages, along with other documents that she says are identified in her written submissions, and those written submissions, which appear primarily related to the substantive hearing. The wife also provided on 15 December 2024 a minute of orders sought setting out the substantive orders that she seeks.
The Application followed, at some distance, the husband’s making of final submissions, and was made as the case was reserved for judgment. It should be characterised as an application to reopen the proceedings.
BACKGROUND
The matter was set down for final hearing twice and adjourned each time at the behest of the wife. A potential application for a litigation guardian for the wife was flagged but ultimately not pursued. Following final consent parenting orders being made on 10 May 2024, only the property matter remained.
The matter was set down for final hearing a third time commencing on 19 August 2024 for five days.
On the first day of the trial, the wife’s lawyers, who were the sixth set of lawyers instructed by her, filed a notice of ceasing to act on the basis that the wife had withdrawn her instructions. The wife pressed that the trial proceed, complaining that her lawyers had not sufficiently prepared for trial and she wished to continue self represented. At the request of the wife the s 102NA order (which she had initially sought) that prevented personal cross-examination was discharged, it being in the interests of justice that the wife be able to cross-examine the husband.
The wife presented in a disorganised and chaotic manner and the first two days of the trial were spent identifying and ruling upon documents the wife sought to tender.
During the wife’s cross-examination on the fifth day of the trial, the wife refused to re-enter the witness box despite her cross-examination being incomplete. The potential consequences of such were explained to her, including that the husband may apply for the matter to proceed on an undefended basis. The husband however took a more generous position, and asked that the wife be permitted, despite this default, to rely upon her material, and that she still be permitted to cross-examine him. He sought merely that he be excused from the obligations described as the rule in Browne v Dunn.
Although the wife was permitted to cross-examine the husband, she declined to, and sought that the proceedings be finished that day, stating that she did not want to come back to court.
Under those circumstances, procedural orders were then made to allow each of the parties to file further evidential material and then make submissions in writing. This removed the need for the wife to return to the court, and gave her time to identify other evidential material. Although the husband was the respondent, he was directed to file his submissions before her, on the basis that this provided the best opportunity for the wife to formulate her submissions.
The directions provided for:
(a)The wife to file any further documents by 2 September 2024 (“the first deadline”);
(b)The husband to file any further documents by 13 September 2024;
(c)The husband file and serve written submissions by 20 September 2024;
(d)The wife to file written submissions by 4 October 2024 (“the second deadline”); and
(e)The husband to file submission strictly in reply by 11 November 2024.
The wife did not comply with the deadlines for the filing of her material.
The husband filed an index of documents relied upon on 13 September 2024 and then written submissions on 20 September 2024. The wife had, by this time, filed no further material. She filed no written submissions and so there was no occasion for the husband to file submissions in reply.
On 12 November 2024, more than two months after the deadline had passed for the filing of further material, the wife wrote to chambers identifying being in hospital and having cybersecurity issues as the reasons for her missing the filing deadlines.
On 23 November 2024, the wife filed an affidavit that described IT issues, property vandalism and documents appearing that she had never seen before. She described that this had caused her severe distress and that “the last few weeks have been spent trying hard to restore a new sense of safety and security”. She requested leave to file her material late. It had been over seven weeks since the first filing deadline had passed.
The wife then, on 9 December 2024, filed an Application in a Proceeding seeking the extension of the filing deadline. The Application sought both an extension until 16 December 2024 for the filing of the wife’s material and urgent consideration of such application.
The Application was listed for hearing on 17 December 2024.
MATERIAL RELIED UPON
The wife relied upon the following documents:
(a)Application in a Proceeding filed 9 December 2024;
(b)Affidavit of Ms Stennard filed 23 November 2024;
(c)Case summary document (in reality minute of final orders sought) filed 15 December 2024;
(d)Index for the proposed tender bundle filed 17 December 2024;
(e)Written submissions filed 17 December 2024; and
(f)Updated financial statement filed 17 December 2024.
The husband relied on the following documents:
(a)Response to Application in a Proceeding filed 13 December 2024; and
(b)Affidavit of Mr Stennard filed 13 December 2024.
The wife also sought permission to rely upon the tender bundle that was the subject of her application. However, on the basis that the index identifying the proposed documents was available, as well as the written submissions, this was not permitted.
The Application in a Proceeding
The Application seeks the extension of time for the filing of the remainder of the wife’s material by 16 December 2024. This appeared to relate to the tender bundle, an updated Financial Statement, a costs notice and the written submissions that dealt with both the Application in a Proceeding and the substantive case. No costs notice was provided. A Financial Statement was filed on 17 December 2024, and an attempt was made to file the tender bundle.
The affidavit in support
The affidavit, filed some weeks prior to the Application, attests in general terms to “very exceptional personal circumstances” giving what the wife describes as a brief description, encompassing IT issues that she says resulted in the loss of access to some (unidentified) documents.
She also describes the loss of some hard copy documents, including some bank statements.
The wife also describes repetitive vandalism of her home, leading to her feeling unsafe within the home.
The wife further says that she has found unusually redacted documents dispersed among her documents that she has not seen before, requiring work to sort through.
The written submissions
To the limited extent that the written submissions dealt with the Application, the wife asserted that she has experienced security issues at her home since 23 August 2024, and IT issues “which effectively paralysed her preparation.” This was said to include loss of access to an email address, to one laptop and two telephones. She asserted further IT issues “the description of which is not possible and beyond the scope of and relevance to this submission.” The wife contends that the trauma of these issues “severely reduced the applicant’s ability to find documents and prepare the material.”
Their extent, their practical impact, and how and why they caused the delays, was not made apparent.
Otherwise, the written submissions were primarily directed to the substantive property adjustment proceedings.
MATTERS IDENTIFIED BY THE HUSBAND
Whatever issues were faced by the wife, it should be noted that the husband extended assistance to her. He volunteered concessions to the manner in which the wife conducted the proceedings, and also, in response to her assertions during the trial that she did not have all of the documents that the husband identified in his list of disclosed documents, he made available a USB containing the disclosure documents, which the wife did not collect from his solicitors. This, he reasonably submits, tells against the wife having made reasonably diligent efforts to provide the documents for tender.
The husband submitted that the wife’s Application was grossly delayed, the deadline for the filing of any additional documentary evidence being 102 days prior, and the deadline for the filing of her written submissions 74 days prior.
He submits that permitting the wife’s Application will not only cause significant further expense and effort, but also delay the finalisation.
PRINCIPLES
The Application by the wife is not simply one of an extension of time in which to file and serve documents for tender at the trial, or to make submissions at the trial or to amend her orders sought. Each of those steps comes at a time after the trial has closed and, importantly, after the husband has filed his final submissions based upon the evidence that was presented against him at trial. In relation to submissions not only has the time for their filing passed, but also the time for the husband to reply has passed. What is sought by the wife is, in substance, a reopening of her case.
Justice Lander in Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (formerly Pirelli Cavi E Sistemi Energia Spa) and Ors (No 4) (2012) 298 ALR 251 at [168] neatly observed:
The power to allow a party to reopen its case will be exercised when it is in the interests of justice to allow that party to do so. It will be in the interests of justice where the evidence, if accepted, might affect the result and the evidence could not have been obtained by the exercise of reasonable diligence on the part of the party or the party’s advisers, and the reopening of that party’s case would not cause prejudice to another party to the proceeding.
It may be observed that those factors have the potential to pull in different directions.
It is important to assess the tender bundle, Financial Statement, submissions and minute of orders sought to evaluate the capacity of each to affect the outcome, the cogency of the explanation for delay, and the nature of the prejudice that may be occasioned to the husband, and to weigh each in a consideration of the interests of justice.
In doing so, the wife’s case for the reception of the documents, at its best, must be seen through the written submissions that she seeks to rely upon.
The tender bundle
The index to the tender bundle lists numerous documents, including bank statements, a forensic accountant report, payslips, Excel spread sheets, documents relating to property, letters relating to disclosure (from 2020 and 2023), miscellaneous records, extracts from previous affidavits, bills, searches, a payslip, invoices and a car valuation, various documents regarding the wife’s health issues, text messages regarding Y, their older child, emails, screenshots, a flow chart, health records of the wife and records relating to the child Y.
As noted above, the best case for the admission of the tender bundle can only come from the written submissions for the wife.
Those submissions were divided under headings, and, to a limited extent made reference to documents in the tender bundle as set out below:
(a)Contributions of the parties:
(i)The husband’s inheritance;
(ii)Contributions after separation;
(iii)Dispute about value of Motor Vehicle 1 (reference p.3337); and
(iv)Family violence
(b)Add backs:
(i)Overpayment of bills (reference p.562-777);
(ii)Overpayment of work legal bills (reference p.1021-53 – asserted relevance based on multiple accounts used to pay business lawyers although the lawyers invoices show only one bank account);
(iii)Unknown saved payees/net bank transfer history (reference to an unidentified excel spreadsheet said to have been “provided” to the court on 10 December 2024);
(iv)Unknown NetBank transfers with misleading nicknames (nb heading only – no submissions);
(v)Excessive cash withdrawals (nb heading only – no submissions);
(vi)Credit card cash advances and NetBank transfers;
(vii)Superannuation withdrawals
(c)Disclosure issues:
(i)Delayed disclosure;
(ii)Business interests (reference p.3196, 3203 and 3204-5 InfoTrack documents re business structure – relevance unexplained)
(iii)L Street (reference p.3239 – application possible subdivision 2018, p.3238-40 difficulties with managing agent and lack of increase in rent)
(iv)H Company shares; and
(v)NAB Subpoena account ending 2877
(d)Abuse of process
(e)Future needs
(f)The applicant’s intentions
Only a small portion of the proposed tenders are referred to in the written submissions. Those that are referred to, at best, relate to small portions of the wife’s limited submissions.
The relevance of almost all of those tenders identified in the written submissions remains unclear in the absence of further submissions or cross examination of the husband, which the wife chose not to engage in.
For example, the allegations of the overpayment of accounts during the relationship does not, without more, carry with it significance for the adjustment of the parties’ property interests. Interpolating from its position under the heading of addbacks, the suggested use appears to be that it constituted a dissipation of the parties’ property in a manner justifying some form of notional add-back. Without more, it is incapable of demonstrating either a dissipation or a circumstance warranting an add-back. To show dissipation it would need to be demonstrated not only that there was an overpayment, but that there was no resulting, offsetting credit. Such matters would have required cross examination of the husband, a course that the wife rejected. Absent further evidence, or explanation, or challenge of the husband, the evidence, even if it met the description given it by the wife, lacks the ability to prove a fact in issue, or even if it met that threshold, lacks sufficient cogency to affect the result.
By way of further example, the evidence said to establish the value of the motor vehicle appears to constitute both opinion and hearsay evidence, and to have been obtained without compliance with the single expert rules, or dispensation from those rules.
It is not apparent that admission of those documents referred to in the submissions may affect the result of the case.
The other examples do no better at identifying a capacity to affect the result.
Given the wife has chosen not to refer to the other aspects of the tender bundle, its relevance, and its capacity to affect the result is even less apparent.
Further, it has not been demonstrated that the evidence could not have been obtained by the exercise of due diligence. Whilst such a consideration is not necessarily a hard barrier to the reception of evidence on reopening, the absence of any indication of unavailability does not aid the wife’s case as to the reception of the tender bundle.
Finally, the wife’s explanation, as sparse as it is, is unpersuasive. For example, there is no explanation as to which, if any of the documents, were impacted by the explanation for delay, such as it is, given by the wife.
On the other side of the equation, admission of this large, but poorly explained volume of documents, would require the husband to reclose his case afresh. He would be required both to reconsider what documents he tendered and then prepare his submissions again in the light of the 3477 pages. He would be required to do his best to understand what is currently not apparent, being how the documents might be thought to affect the case. This is a significant imposition.
The wife has not shown that it is in the interests of justice that she now be permitted to rely upon the proposed tender bundle.
The Financial Statement
The late production of a Financial Statement, composed of assertions made by the wife, albeit either sworn or affirmed, comes without explanation for its lateness, comes after both the hearing and the completion of the tender of material by the husband, and after the completion of his primary submissions. There is no indication that the information contained therein (which the wife explains is outdated in part) was other than in the wife’s knowledge at the time of the hearing.
It is unfair to admit it into the evidence, over the husband’s objection, under those circumstances. Although the burden is not as heavy as in respect of the tender bundle, and although its relevance is more apparent, it is not supported by argument as to why it would affect the outcome. In the absence of such, the primary factor in considering whether its admission is in the interest of justice is the adverse impact upon the party who has already closed his case, as set out above.
The submissions and proposed orders
The proposed orders and submissions set out, as best as they can be understood, the wife’s case.
There is no sufficient explanation for their lateness, and their lateness will have the effect of delay of the completion of the proceedings.
Compared to the tender bundle and the Financial Statement, their adverse impact is more limited. The directions for the filing given at the end of the trial were designed to assist the wife by having the husband file his submissions before she did, and then to have a right of reply.
The effect of now allowing the wife to rely upon the late submissions and minute of orders will necessarily be to enliven the husband’s right of reply. Given the time that has passed this is onerous. However, consideration of the interests of justice calls for the reception of the wife’s submissions (limited as they are) and her minute of orders, to understand as best as possible her case. That is a matter that outweighs the delay and burden of the husband now being put to providing submissions in reply.
CONCLUSION
The wife is refused permission to rely upon the proposed tender bundle and Financial Statement. The wife is permitted to rely upon her written submissions and minute of orders.
Orders will provide for the husband to have 21 days within which to file submissions in reply to those matters raised by the wife which have not already been addressed by him.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 9 January 2025
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