Bansom & Rawleigh
[2023] FedCFamC1F 569
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bansom & Rawleigh [2023] FedCFamC1F 569
File number(s): SYC 2605 of 2020 Judgment of: HARPER J Date of judgment: 23 May 2023 Catchwords: FAMILY LAW – PROPERTY – Where liabilities exceed assets – Where parties were unable to reach a sensible resolution – Where wife sought that the outstanding property proceedings be dismissed – Where husband seeks referral of outstanding property proceedings to a Senior Judicial Registrar – Where Parties failed to comply with case management directions to prepare a joint balance sheet – where it is not clear what the property pool actually comprises of – Where husband seeks sale of collections and jewellery presently in the wife’s possession in order to defray some of the parties’ debts – No valuation evidence proffered as to the value of the collections or jewellery – no way to discern value of assets the father contends should be auctioned – Where parties have both generated costs of around $100,000 – Where Court could conclude the only notional property to be divided are debts – Where continuation of proceedings would be inconsistent with the overarching purpose of the just, quick or cheap disposition of proceedings – Outstanding property proceedings summarily dismissed. Legislation: Family Law Act 1975 (Cth) s 79(4)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) s 67
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 22 – 23 May 2023 Place: Sydney Counsel for the Applicant: Mr Schonell Solicitor for the Applicant: Diamond Conway Lawyers Counsel for the Respondent: Mr Apostle Solicitor for the Respondent: Lonsdale & Associates Lawyers Counsel for the Independent Children's Lawyer: Ms Yu Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
SYC 2605 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BANSOM
Applicant
AND: MR RAWLEIGH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARPER J
DATE OF ORDER:
23 MAY 2023
THE COURT ORDERS THAT:
1.The email dated 23 May 2023 setting out the terms of the ancillary orders made by consent be marked Exhibit “B”.
2.Orders be made in accordance with paragraphs 1, 2 and 3 of Exhibit “B”.
3.By no later than 20 June 2023, the Applicant Mother comply with the liability to pay one half of the total fees of the Single Expert Report as stated in Order 11 of the orders dated 1 October 2020.
4.By no later than 20 June 2023, the Respondent Husband is to file and serve an affidavit and written submissions to accompany his application for costs against the Applicant Wife.
5.The balance of the proceedings relating to the property dispute between the Parties be dismissed.
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 the pseudonym Bansom & Rawleigh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These proceedings (SYC 2605 of 2020) involved a dispute between the Applicant Mother (“mother”) and the Respondent Father (“father”) concerning both property and parenting issues. It was listed for final hearing to commence on 22 May 2023.
The parenting aspect of the proceedings was resolved by agreement after the parties spent the entirety of 22 May 2023 in negotiation. Orders were made by consent and after the Court heard some brief evidence from the father.
On 23 May 2023, the parties applied by consent for a number of ancillary orders to be made also by consent.
That leaves the balance of the proceedings involving the property dispute. The ambit of that dispute is set out to some extent by a document which the parties have described as a joint balance sheet. But the document does not meet that description in the sense that there are so many incomplete items in it which have been marked “not known” that it is very difficult to understand the composition of the property pool.
However, it was common ground that the parties both enjoy some superannuation which in rough figures is about $90,000 to $95,000 each. I observe here that neither party seeks a superannuation splitting order.
The remainder of the partially constructed balance sheet comprised some assets being two collections and apparently an item of jewellery together with numerous claimed debts which will exceed, on the face of the document, any value attributed to remaining assets.
I observe here also that there is no valuation evidence from either party about the value of the collections or the item of jewellery. It was also not in dispute that the wife has generated costs of close to $100,000 and the husband’s costs something in excess of $100,000. In those circumstances, the Court could only conclude that there are debts, if treated as notional property, remaining to be divided.
The parties were given ample opportunity to negotiate a common sense resolution of the property dispute, however, on 23 May 2023, the Court was informed that they had been unable to achieve that result. The options, therefore, put to the parties by the Court were: first, to give them further time to negotiate a common sense resolution in light of the patently modest property pool.
Secondly, dismiss the proceedings either on the basis that none of the evidence, when taken together, disclosed either a prima facie justification to differentiate the contributions of the parties during the relationship, or that there was any real property or any other property of any real substance which could be made the subject of adjustment order on a just and equitable or any other basis. Therefore, the Court could not be satisfied that s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) could be satisfied.
Thirdly, the state of the balance sheet was such that it was quite clear the parties had failed to act consistently with the overarching purpose set out in s 67 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) because they had not complied with the Court’s direction to settle a joint balance sheet for the purpose of Final Hearing. It is open to the Court in circumstances where there has not been compliance with a case management direction of the Court to dismiss the proceedings.
A fourth option was to adjourn the proceedings to be heard on a date to be advised before a Senior Judicial Registrar.
Counsel for the wife advocated strongly and forcefully for an order dismissing the balance of the proceedings substantially for the reasons which are self-evident from the recitation of the position set out earlier in these reasons.
Counsel for the husband pressed for the matter to be adjourned to a date before a Senior Judicial Registrar for determination of the outstanding property dispute. I have already outlined the property position which leads to the inevitable conclusion that there is a deficit of assets over liabilities. It was the proposition of the husband that, despite that reality, the collections and the item of jewellery and any other bits and pieces that remain in the possession of the wife should be put up for sale, presumably by public auction, so that the proceeds may be used to defray or discharge at least in part some of the existing debts.
Whilst that proposition has some attraction, this is a case in which there has been no evidence provided of the value of any of what are said to be the assets which might be sold. Even assuming that they have some value, there is no basis upon which the Court could realistically conclude that their sale would result in a meaningful reduction of any of the debts of either party.
Whilst dismissing the proceedings in a summary fashion is something which the Court should be very cautious about doing, it seems to me that in the context of these proceedings that would be the most beneficial result because otherwise the resources of the Court will be devoted to sorting out a dispute which is substantially about debts, and there is doubt (above at [9]) that s 79(2) cold be satisfied. In those circumstances, I do not consider it to be consistent with the overarching purpose or the just, quick or expeditious disposition of the proceedings in light of the available judicial resources in the Court and the claims of other litigants for these proceedings to continue.
There remain two other matters. The first is an order was made on 1 October 2020 for the parties to be liable for one half of the total fees of the single expert, Dr D, who was appointed by orders on that date to prepare a family report with the proviso that the father was to pay the single expert’s fees in the first instance. There was no dispute that he did so. He claims, therefore, that the wife should meet her half of those fees in compliance with the order as part of any final resolution of the proceedings.
The wife resisted that on the basis that she says a second report by Dr D in respect of which she paid half the fees was unnecessary and therefore, in effect, she should be discharged from the liability which is imposed upon her by Order 11 made on 1 October 2020. I'm not persuaded by that position. The first report was clearly necessary and she was ordered to pay half of those costs. I will make an order that she meet one half of that liability.
The second matter is that the husband wished to apply for an order for costs in his favour in circumstances where there has already been so much spent on basically nothing of great value. At least in respect of property, that may seem to be a course which smacks of folly. However, there may be evidence concerning negotiations or offers of settlement which would be relevant and may justify a costs order in accordance with the ordinary principles which apply in relation to s 117 of the Act.
Accordingly, I will make the standard orders for the provision an application as to costs accompanied by any affidavit evidence and an exchange of written submissions in accordance with the standard timetable and for the question of costs to be determined on the papers in chambers which is a course both parties agree to.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for the Ex Tempore Judgment of the Honourable Justice Harper delivered on 23 May 2023. Associate:
Dated: 7 July 2023
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