Bele and Vaughan (No 2)

[2011] FamCA 893

FAMILY COURT OF AUSTRALIA

BELE & VAUGHAN (NO 2) [2011] FamCA 893

FAMILY LAW – PROCEDURAL – Application for adjournment of final hearing – appeal pending

Family Law Act 1975(Cth)

APPLICANT: Ms Bele

RESPONDENT: Mr Vaughan

FILE NUMBER: MLC 9056 of 2009

DATE DELIVERED: 11 November 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 9 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hawkshaw

COUNSEL FOR THE RESPONDENT: Mr Sweeny

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

1. The oral application made by Ms Bele for the adjournment of the hearing listed to commence on 8 December 2011 is refused and dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bele & Vaughan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 9056 of 2009

Ms Bele

Applicant

And

Mr Vaughan

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the respondent, Ms Bele for an adjournment of the hearing listed before the Court in December of this year. The matter is listed for a five day hearing before me commencing on 8 December 2011. That application is opposed by the respondent to this application Mr Vaughan.

Background

1. Mr Vaughan is the applicant in proceedings filed in this Court for property orders pursuant to Part VIIIAB of the Family Law Act 1975(Cth) (”the Act”). It is the Mr Vaughan’s case that the parties participated in a relevant de facto relationship which gives rise to eligibility of either party to seek orders pursuant to Part VIIIAB of the Act.

2. On 9 June 2011 Justice Cronin made orders which declared, pursuant to sections 90RD and 4AA of the Act, that a de facto relationship existed between the parties and came to an end on 2 March 2009. He further ordered that the outstanding applications for final orders then before the Court be referred for allocation of hearing dates.

3. The particular application, which is now listed for hearing before me to commence on 8 December 2011, was filed on 7 October 2009.

4. On 7 July 2011, Ms Bele filed an appeal against the orders and declarations made by Justice Cronin on 9 June 2011. The Court is advised today by Ms Bele’s counsel that information from the Full Court Registrar suggests the appeal may be heard between February and May in 2012.

5. On 13 September 2011, Justice Cronin published reasons for his determination of the stay application sought by Ms Bele and made orders dismissing the stay application and a response filed 8 September 2011. In considering the stay application His Honour canvassed the grounds of appeal as part of an assessment of the merits of the appeal. In so doing His Honour assessed that the “geographical limitation” ground does not have merit. He cites the fact that it was not raised by senior counsel appearing for Ms Bele during the course of the trial. He also observes it was not raised as an issued by Ms Bele’ solicitor prior to the commencement of the trial. His Honour concluded that the stay should not be granted. He also refused the application of Mr Vaughan for an adjournment of the proceedings which appears to have been based on a failure of Ms Bele’s to comply with procedural orders the Court had made to that point in time.

6. In the hearing of the application before me it seems that there is no issue between the parties that Mr Vaughan was in Australia at the time he filed his application. The point which is now sought to be argued before the Full Court is an assertion by Ms Bele that Mr Vaughan was not ordinarily resident in Victoria (a participating jurisdiction) at the time he filed that application. As best I can see from the judgment of Justice Cronin delivered 13 September 2011 there was no argument directed to that issue in the hearing he conducted and which gave rise to the order now under appeal.

7. In support of his submissions, Mr Vaughan relies on an Affidavit filed electronically on 8 November 2011 and sworn by him on that same day. In that affidavit Mr Vaughan asserts that he will suffer substantial prejudice if the proceedings are adjourned. Mr Vaughan further says in his affidavit that if there is an adjournment then he will make an application for interim maintenance. He will also seek enforcement of orders made on 4 July 2011. I note that there is no application before the Court seeking any such orders.

8. Ms Hawkshaw, counsel appearing on behalf of Ms Bele, provided written submissions in support of Ms Bele’s application for adjournment. In those submissions she advises that Ms Bele resides in a European Country and has done so since 1997. She advises that a five day hearing was conducted before Justice Cronin between October 2010 and March 2011. That gave rise to the orders made on 9 June 2011. By those orders His Honour determined that separation took place between the parties on 2 March 2011. The submissions advise that an appeal against those orders has been lodged with three main areas of complaint. The areas of complaint are:

   a)That there is no jurisdiction for the matter to be dealt with by the Family Court of Australia;

   b)In the alternative, if jurisdiction exists that jurisdiction ought not be exercised by the Family Court of Australia;

   c) Error of law in relation to the decision by Cronin J in relation to geographical requirements for defacto matters pursuant to the Family Law Act (section 90RG).

9. The parties have a 17 year old daughter. Parenting issues have been determined by the Courts in a European country.

10. Ms Bele recites that on 13 September 2011 Justice Cronin delivered a decision dismissing her application for a stay of the proceedings, which application had been lodged by her on 1 September 2011.

11. Ms Bele seeks an adjournment of the hearing set for 8 December 2011 on a number of bases. They include the matters sets out in paragraph 16 and 17 of her submission which are as follows:

16.The respondent seeks an adjournment of the 5 day hearing listed before his Honour commencing on 8 December 2011 on the basis that:

a.An appeal is pending before the Full Court of Appeal in relation to jurisdictional issues

b.The appeal cannot be heard until at earliest February 2011, in the alternative May 2011 as advised by the Registrar of the Appeal division

c.That determination of the jurisdiction is of  paramount  importance in this matter. All other issues pivot on jurisdictional issues.

d.That jurisdictional issues ought to be determined by the Full Court of Appeal before a 5 day hearing of property issues is heard before His Honour.

e.That it is premature for this matter to be heard before His Honour given the appeal is pending and issues of outstanding disclosures by the parties.

f.That a costs order cannot remedy detriment to the respondent if a property order is made because once real property titled to the respondent is sold, that real property cannot be restored to the respondent in the event that the appeal is later upheld in that there is no jurisdiction to hear the matter or in the alternative, that the jurisdiction ought not be exercised.

g.The decision of the Supreme Court of [a European Country] is also currently subject to an appeal in [a European Country] by the respondent.

h.A 5 day hearing would be of considerable expense to both parties to incur whilst an appeal is running parallel to the current proceedings

i.In the event that the appeal is upheld in the appellant/respondent’s favour, then it would short circuit and dispense the need for a 5 day hearing of this matter before His Honour.

j.For the above-mentioned reasons, the matter is not ready for a 5 day hearing as currently listed.

k.His Honour is of the liberty to make further directions as deemed fit by His Honour in this matter.

17.Further, there are issues regarding :

a.The legal status of an unmarried relationship pursuant to [European] law

b.The defacto provision of the FLA and powers conferred by participating states pursuant to Section 51(xxxvii) of the Constitution of Australia.

c.The time lived in a [European Country] by the parties (since 1997 to 2009)

d.Reclassification of a relationship in a different legal jurisdiction

e.Threshold issues regarding the ordinary resident requirement and substantial contributions by the applicant in the relevant state. The threshold has not been demonstrated by the applicant.

1. There are a number of submissions made which I consider do not squarely address the application before me at this time.         They appear to be arguing matters which will be before the Full Court or alternatively argued during the course of the trial.

Conclusion

1. I am told by Ms Bele that it will be necessary for her to travel to Australia for the trial set to commence on 8 December 2011. It is submitted on her behalf that will involve considerable expense and inconvenience on her part. I take that matter into consideration.

2. Ms Bele argues that should the matter be heard and determined by me before the Full Court has an opportunity to determine the appeal against the orders of Justice Cronin, it may be a wasted exercise if the appeal is granted. It is further submitted that should orders be made by the Court, in the hearing listed before me in December this year, which are implemented before the Full Court determines the appeal, then this may create a circumstance where Ms Bele could not be adequately compensated by costs should her appeal be successful. In my view such a circumstance may be overcome, should an application be made, if any orders made by the Court were specified not to be implemented until such time as the appeal has been determined.

3. The proceedings have been before the Court since 7 October 2009. A considerable amount of court time and judicial resource has been invested in the proceedings to date. The evidence of Mr Vaughan is that he is now unemployed and in a precarious financial situation. Mr Vaughan has informed the Court, through his counsel, that the application he will move on in December will not seek to interfere with the determinations already made by Courts in a European Country.

4. On balance, I conclude that the application for an adjournment should not be granted and accordingly the parties should ready themselves as a matter of urgency for the hearing set to commence 8 December 2011.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date:  11 November