Berfield & Berfield - [2024] FedCFamC1F 193

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Berfield & Berfield [2024] FedCFamC1F 193

File number(s): SYC 482 of 2021

Judgment of: HARPER J

Date of judgment: 11 March 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where husband’s Amended Response was dismissed for non-compliance and final hearing listed to proceed as if undefended – Where husband made an application to rely upon his Amended Response and affidavit evidence on first day of final hearing – Where expert evidence was not available at the time of the hearing – Where expert evidence argued to be essential to a just and equitable determination of the relief sought on a final basis – Where wife sought adjournment of the final hearing – Where the final hearing proceeded to hear the oral evidence of the parties – Leave granted for the husband to rely upon his Amended Response and affidavit material – Where following the conclusion of the parties’ oral evidence the proceedings are to be stood over part heard to allow for the receipt of the valuation evidence.

Division: Division 1 First Instance

Number of paragraphs: 21

Date of hearing: 11 March 2024

Place: Sydney

Solicitor for the Applicant: Mr Reeve of Marsden Law Group

Counsel for the First Respondent: Mr Duane

Solicitor for the First Respondent: Agostino & Co

Counsel for the Second and Third Respondents: Mr Katsinas

Solicitor for the Second and Third Respondents: Simone Legal
ORDERS

SYC 482 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS B BERFIELD

Applicant

AND:
MR C BERFIELD

First Respondent

MR D BERFIELD

Second Respondent

MS E BERFIELD

Third Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

11 MARCH 2024

THE COURT ORDERS THAT:
1.Order 1 of the orders made by Justice Campton on 8 March 2024 be vacated.
2.Leave be granted to the Applicant Wife (“the wife”) to apply orally during the trial in relation to any prejudice she claims cannot be cured by allowing further time in responding to the husband’s affidavit evidence.
3.The taking of oral evidence on the parties will commence at 10.00 am on 12 March 2024.
4.The solicitor for the wife prepare a proposed minute attaching an appropriate letter of instruction setting what Mr F is to value in relation to the property at Suburb G and the time by which such valuation can be completed.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Berfield & Berfield [2024] FedCFamC1F 193
Case: [2024] FedCFamC1F 193
Decision Date: 11 March 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia presided over a case involving a dispute between Ms B Berfield, the applicant, and Mr C Berfield, the first respondent, alongside two other respondents. The matter pertains to family law issues, specifically the non-compliance of the husband's Amended Response, which led to the dismissal of his response and the scheduling of a final hearing as if undefended. On the first day of the final hearing, the husband sought to rely on his Amended Response and accompanying affidavit evidence, which was denied due to unavailability of expert evidence critical to the equitable resolution of the relief sought on a final basis. The wife, in turn, applied for an adjournment of the final hearing.

The court needed to decide whether the husband's Amended Response and affidavit evidence should be considered, despite the absence of expert evidence. The wife's request for an adjournment also had to be evaluated, alongside the implications of proceeding with the hearing without the expert evidence. The court had to balance the importance of expert evidence against the need for a timely resolution of the case.

In its decision, the court granted leave for the husband to rely on his Amended Response and affidavit material, despite the absence of expert evidence. The court acknowledged the essential nature of the expert evidence for a just and equitable determination but decided to proceed with the oral evidence of the parties. The final hearing was to be stood over part heard to allow for the receipt of the valuation evidence. The court also directed the wife's solicitor to prepare a proposed minute with a letter of instruction for the valuation of the property in question.

The court’s final orders included vacating a previous order, allowing the wife to apply orally during the trial regarding any prejudice due to the husband's affidavit evidence, scheduling the commencement of oral evidence, and directing the wife's solicitor to prepare a proposed minute for the property valuation. The form of the order is subject to entry in the Court’s records and may be subject to review for minor errors or variations.

Orders

Orders of the court

SYC 482 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS B BERFIELD

Applicant

AND:

MR C BERFIELD

First Respondent

MR D BERFIELD

Second Respondent

MS E BERFIELD

Third Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

11 MARCH 2024

THE COURT ORDERS THAT:

1. Order 1 of the orders made by Justice Campton on 8 March 2024 be vacated.

2. Leave be granted to the Applicant Wife (“the wife”) to apply orally during the trial in relation to any prejudice she claims cannot be cured by allowing further time in responding to the husband’s affidavit evidence.

3. The taking of oral evidence on the parties will commence at 10.00 am on 12 March 2024.

4. The solicitor for the wife prepare a proposed minute attaching an appropriate letter of instruction setting what Mr F is to value in relation to the property at Suburb G and the time by which such valuation can be completed.

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.

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

Full text does not contain this section.

File number(s):	SYC 482 of 2021
Judgment of:	HARPER J
Date of judgment:	11 March 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where husband’s Amended Response was dismissed for non-compliance and final hearing listed to proceed as if undefended – Where husband made an application to rely upon his Amended Response and affidavit evidence on first day of final hearing – Where expert evidence was not available at the time of the hearing – Where expert evidence argued to be essential to a just and equitable determination of the relief sought on a final basis – Where wife sought adjournment of the final hearing – Where the final hearing proceeded to hear the oral evidence of the parties – Leave granted for the husband to rely upon his Amended Response and affidavit material – Where following the conclusion of the parties’ oral evidence the proceedings are to be stood over part heard to allow for the receipt of the valuation evidence.
Division:	Division 1 First Instance
Number of paragraphs:	21
Date of hearing:	11 March 2024
Place:	Sydney
Solicitor for the Applicant:	Mr Reeve of Marsden Law Group
Counsel for the First Respondent:	Mr Duane
Solicitor for the First Respondent:	Agostino & Co
Counsel for the Second and Third Respondents:	Mr Katsinas
Solicitor for the Second and Third Respondents:	Simone Legal

SYC 482 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS B BERFIELD Applicant
AND:	MR C BERFIELD First Respondent MR D BERFIELD Second Respondent MS E BERFIELD Third Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	11 MARCH 2024