FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allbeck & Fielders [2024] FedCFamC1F 769
File number: PAC 4152 of 2018 Judgment of: MCNAB J Date of judgment: 15 February 2024 Catchwords: FAMILY LAW – PROCEDURAL – Where an issue estoppel operates to bind the first respondent but not the second respondent to findings made in District Court proceedings brought by the applicant – Where no issue estoppel arises against either the first or second respondent in relation to the second set of orders and reasons in the District Court and where s 91 of the Evidence Act 1995 (Cth) applies. Legislation: Bankruptcy Act 1966 (Cth) ss 120, 121
Evidence Act 1995 (Cth) s 91
Family Law Act 1975 (Cth) s 79
Conveyancing Act 1919 (NSW) s 37A
Cases cited: Ainsworth v Burden [2005] NSWCA 174
Attorney-General (New South Wales) & Martin [2015] NSWSC 1372
Cirillo & Cirillo [2021] FedCFamC1A 45
Jones v Dunkel (1959) 101 CLR 298
Kayler-Thomson v Colonial First State Investments (No. 3) [2023] FCA 606
Kennon & Kennon [1997] FamCA 27
Kuligowski v Metrobus [2004] HCA 34
Ramsay v Pigram (1968) 118 CLR 271
Revill & John Holland Group Proprietary Limited [2022] FCAFC 178
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 13–15 February 2024 Place: Parramatta Counsel for the Applicant: Mr Simpson Solicitor for the Applicant: Penhall & Co Lawyers Counsel for the First Respondent: Ms Bromberger Solicitor for the First Respondent: Holmes Donnelly & Co Solicitors Counsel for the Second Respondent: Mr Lethbridge SC with Mr Havenstein Solicitor for the Second Respondent: James & Jaramillo Legal Pty Ltd Counsel for the Third Respondent: The Third Respondent did not appear ORDERS
PAC 4152 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALLBECK
Applicant
AND: MR FIELDERS
First Respondent
MS KAZEM
Second Respondent
MR VORONIN (AS BANKRUPTCY TRUSTEE FOR MR FIELDERS)
Third Respondent
ORDER MADE BY:
NO ORDERS MADE
DATE OF ORDER:
NO ORDERS MADE
NO ORDERS MADE
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 the pseudonym Allbeck & Fielders has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX-TEMPORE
(Revised from Transcript)MCNAB J
The issue to be determined in this…
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CaseChat Overview and Summary
The court found that the first respondent was bound by an issue estoppel in respect of the first set of orders and findings made by the District Court. These findings related to the applicant's claims of rape, post-traumatic stress disorder, and the associated damages. However, the second respondent was not subject to the same issue estoppel as she had not participated in the proceedings that led to these findings. The court further found that no issue estoppel arose in relation to the second set of orders made by the District Court, which dealt with an interlocutory application by the first respondent. The court reasoned that these orders were not final and did not address the core issues before the court in the current proceedings.
The court held that the second respondent's argument that the District Court's decisions were concerning matters separate from those in the current proceeding was without merit. The court concluded that the second respondent's argument that the second set of orders was interlocutory and therefore not subject to issue estoppel was also unconvincing. The court held that the findings in the District Court's first set of orders were final and binding on the first respondent, but not on the second respondent. No orders were made in this case.
Orders
Orders of the court
PAC 4152 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS ALLBECK
Applicant
AND:
MR FIELDERS
First Respondent
MS KAZEM
Second Respondent
MR VORONIN (AS BANKRUPTCY TRUSTEE FOR MR FIELDERS)
Third Respondent
ORDER MADE BY:
NO ORDERS MADE
DATE OF ORDER:
NO ORDERS MADE
NO ORDERS MADE
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The second respondent submits that the decisions and orders of the District Court are concerning matters which are quite separate from what must be determined by the Court in this proceeding, both as to the treatment of assets by the respondents and as to any conclusions that must be made and considerations under section 79(2) and (4) of the Family Law Act 1975 (Cth). It is said that the second decision is interlocutory and not a final order, and, therefore, issue estoppel does arise from its operation. It is submitted that no claim was made by the second respondent under or through the first respondent, and there was no useful order that the second respondent could have sought in the second proceeding, and, therefore, the findings of the District Court judge in the second judgment cannot bind this Court.CONSIDERATION The first judgment, which determined the issue of whether the applicant was raped, whether she suffered PTSD, the damages arising from that, and the quantum of those damages, finally determined those issues. The first respondent is bound by an issue estoppel in respect of that judgment and those orders. The second respondent does not seek to challenge those findings, but she is not subject to issue estoppel in respect of that judgment. The second judgment arises from an interlocutory application by the first respondent to vary the term of a penal notice under a freezing order which had been made by the District Court to allow him to encumber assets to borrow funds for legal fees to fund an appeal. The second judgment records the defendant sought to further encumber remaining assets, and he alleged that it was necessary for him to provide security to his former partner, the second respondent, in order for her to release $165,000 so as to fund the appeal. In the judgment, a chronology prepared by the plaintiff records events, including the transfer of funds from the first respondent to the second respondent from 2020. That chronology includes commentary from the plaintiff which was not the subject of findings in the judgment; that is, particularly in regard to whether about $600,000 that was paid to the second respondent pursuant to what was described as a separation agreement in 2021 was bona fide. Further, the chronology is framed in terms of phrases such as, ‘The defendant claims to have separated from the second respondent’. The judgment does not purport to make any finding about whether that occurred or not. The learned District Court judge made the findings which I have referred to earlier and understandably, there was no concluded determination in the judgment as to whether the payment of about $600,000 was said to form part of the separation agreement given the nature of the application before the Court. There was no particular analysis of each of the payments made by the first respondent to the second respondent. For instance, there is no detailed consideration of whether money paid by the first respondent to the second respondent in 2020 was a payment made to avoid satisfying the judgment made in favour of the applicant. This was in circumstances where no proceeding had been issued in the District Court, and there was no judgment. There is no specific finding that payment was made to defeat any claim made pursuant to the Family Law Act1975 (Cth). A finding refers to the judgment made in favour of the defendant, which judgment was delivered in 2021, and not to any judgment that may be made in favour of the plaintiff or a prospective judgment.