Visser & Drost
[2023] FedCFamC2F 941
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Visser & Drost [2023] FedCFamC2F 941
File number(s): PAC 4220 of 2022 Judgment of: JUDGE STREET Date of judgment: 11 May 2023 Catchwords: FAMILY LAW – PROPERTY – adjournment application – adjournment opposed – singular s 102NA order – adjournment granted Legislation: Family Law Act 1975 (Cth) ss 102NA, 117 Division: Division 2 Family Law Number of paragraphs: 11 Date of hearing: 11 May 2023 Place: Sydney Counsel for the Applicant: Ms L Judge Solicitor for the Applicant: Bell Lawyers Pty Ltd Counsel for the Respondent: Mr J Cohen Solicitor for the Respondent: El Baba Lawyers Pty Ltd ORDERS
PAC 4220 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VISSER
Applicant
AND: MS DROST
Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
11 MAY 2023
THE COURT ORDERS THAT:
1.The hearing date of 12 May 2023 is vacated.
2.The matter is fixed for final property hearing at 10:00am on 31 July and 1 August 2023 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.Order 13, made on 1 February 2023, is varied to now read as “neither party, pursuant to s 102NA of the Family Law Act 1975 (Cth) are permitted to cross-examine the other.”
4.The Court extends time for the filing by the respondent of an amended response, an updated financial statement, and a consolidated trial affidavit on or before 23 June 2023.
5.The Court extends time to the respondent for compliance with the Notice to Produce filed 1 May 2023 to on or before 23 June 2023.
6.The parties file and serve a consolidated balance sheet on or before 7 July 2023, identifying the amounts in dispute.
7.The applicant file and serve any further case outline, if desired, on or before 13 July 2023.
8.The respondent file and serve a case outline on or before 19 July 2023.
9.Leave is granted to the parties to issue more than five (5) subpoenas.
10.Leave is granted to the parties to have photocopy access to the material produced under subpoena, subject to any proper notice of objection.
11.Leave is granted to Mr J Cohen of Counsel and his instructing solicitor, El Baba Lawyers, to withdraw from the proceedings after contacting Legal Aid and notifying them of the orders made today, 11 May 2023, and the Courts’ request for an urgent reappointment of representatives for the respondent.
12.After compliance with the above order 11, the solicitor for the respondent should file a Notice of Withdrawal.
THE COURT NOTES THAT:
A.Whilst it may have been the intention to ensure a s 102NA order was made relating to the respondent on 1 February 2023, the expressed terms did not represent that intention and the Court has now made clear the entitlement of both parties to Legal Aid through Commonwealth funding as a result of the order made.
B.The Court expects the respondent to be extremely diligent in pursuing the entitlement to Legal Aid and taking steps to comply with the Courts’ orders for the further hearing as any further adjournment is unlikely to be granted in the absence of very compelling circumstances, which may include at that stage costs consequences.
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 STREET
These property proceedings commenced on 3 August 2022 and were the subject of orders made on 1 February 2023, fixing it for hearing today. Those orders included an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (‘the Act’) that provided a restraint on only one party, the applicant, in relation to cross-examination. This provided only an entitlement through Commonwealth funding to legal aid to the applicant. The order, on its face, was singular and should have been an order pursuant to s 102NA that neither party be permitted to cross-examine the other. Ordinarily, a notation is added, as a result of the order, that the relevant parties are entitled to legal aid through Commonwealth funding.
It is the case that the timetable that was made identified steps that should have been taken in relation to adducing of an updated response, an updated financial statement and the trial affidavit, relevantly, by the respondent. None of that material has been put on. There is no agreed balance sheet, but, in fairness to the parties, the case outline by the applicant does purport to identify the asset position as understood by the applicant, given the absence of compliance with the Court’s orders by the respondent. In relation to a s 79 application, the Court needs to be able to identify the whole of the asset pool and also the relevant direct and indirect contributions.
The failure to have put on evidence means that the Court could not fairly determine the matter in relation to the s 79 interests in the absence of proper steps to comply by the respondent with the orders that were sought. The adjournment was sought this afternoon, after 4 o’clock, by Mr Cohen on behalf of the respondent after the parties had explored and exhausted settlement negotiations. The identification of exhaustion of those negotiations was only identified at 4 o’clock. The adjournment application is opposed by Ms Judge. Mr Cohen identified that there was a need to put on further evidence in relation to matters including medical evidence.
Mr Cohen also identified that he and his instructing solicitor have only recently come into the matter. Ms Judge identified that the applicant had, at some stages in the proceedings had other representation. Ms Judge identifies that it is the respondent who has not taken steps to comply with the Court’s orders and that the matter should proceed. Ms Judge submits that, if the matter were to be adjourned, it should be adjourned, first, on condition that, on a limited payment of something like $10,000, the respondent should be required to vacate the property of the applicant in which she is living and further asserting that there should be a condition imposed in relation to costs.
The Court will come back to costs in a moment. There is an inevitable consequence that flows from the singular order that was made on 1 February 2023 in identifying the entitlement to legal aid. It is not necessary for this Court, at this stage, to go through, in detail, the consequences that it would have had. On its face, it is patent that the order would not have permitted the respondent to attend upon Legal Aid to get legal aid through Commonwealth funding with the benefit of a correct order in her favour. The order was not one in her favour. That singular order is one that the Court readily infers had a material impact in the belated representation through Legal Aid by the respondent.
Ms Judge has pointed out that the provisions relating to the grant of legal aid on the statutory language focused on cross-examination. It is, however, the case that the grant of legal aid is one regularly utilised to address the trial steps required by the parties, and that is the step normally undertaken by those who are the beneficiaries of the legal aid grant as a result of the s 102NA order, and it is not one where it is confined back to the exercise of cross-examination and is properly so because it is necessary for the legal representatives competently discharging their duties under s 102NA together with their duty to the client to understand the holistic nature of the case and be able to identify and address the whole of the case in the context of the significance of the s 102NA issue. The Court does not accept that the grant of legal aid is so confined.
Accordingly, with the benefit of legal aid representation the respondent should have been in a position where she should be able to proceed. The Court does not regard the earlier representation as addressing the deficiency that has arisen as a result of the singular order made on 1 February 2023. It is in the interest of justice that the Court is able to receive the evidence of both parties in relation to the alteration of property interests being sought in the present case. The Court is mindful of the fact that the property pool, on one view, appears relatively small and that the duration of the relationship and the cohabitation period is relatively confined.
They are features in respect of which there is an obvious utility for the parties to try and see whether or not they could resolve the matter consensually. Part of the principles the Court is required to apply in property proceedings is to give the parties an opportunity to see whether they can achieve a consensual position. To require the matter to proceed tomorrow, in circumstances where the Court does not have the benefit of compliance by the respondent with the orders that have been made, would be to put the respondent at a significant disadvantage and would be unjust and unfair. The Court does not regard the non-compliance, in the circumstances of this case, with the directions and the belated representation as something to be laid at the feet of the respondent.
As the Court has explained, the singular order in relation to s 102NA was something that was apparent to any practitioner present at the time the order was made. It is also apparent, from what was said by Ms Judge, that the applicant was unrepresented on that occasion, whereas the applicant was represented. The Court is satisfied an adjournment is warranted in the interests of the administration of justice. The Court is not satisfied that any condition should be imposed, be it vacating premises or in relation to costs warranting the making of any order under s 117 of the Act.
The Court is not in a position, at this stage, to fully identify the financial circumstances of the parties. The reality is that the proceedings have been conducted in a way where, as at to date, the respondent’s case has not been fully prepared. The Court is also persuaded that there would be an unfairness to the respondent if the proceedings were to be forced on tomorrow.
The Court does not regard the adjournment as necessitated by the failure of a party to the proceedings to comply with the previous order. Rather, the Court regards the adjournment as being necessitated by the failure of the Court in the making of a s 102NA order. The Court is also mindful of the fact that it is the respondent who has been successful on the adjournment application, which was opposed by the applicant. The Court does not have the benefit of the whole of the circumstances. The Court is not satisfied that it is appropriate to make any order or impose condition in relation to the costs occasioned or thrown away by reason of the adjournment.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 28 July 2023
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