Bestari & Henley (No 3)
[2023] FedCFamC1F 725
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bestari & Henley (No 3) [2023] FedCFamC1F 725
File number(s): CAC 2301 of 2021 Judgment of: GILL J Date of judgment: 23 August 2023 Catchwords: FAMILY LAW – PROPERTY – Where the parties have produced consent terms – Where the consent terms specify a percentage split – Where the consent terms rely on future sales, valuations to be made and property interests of a third party to be determined – Impermissible delegation of the judicial function to a third party – Where the court cannot be satisfied the effect of the orders would be just and equitable Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 21-23 August 2023 Place: Canberra Counsel for the Applicant: Mr Hedges, SC Solicitor for the Applicant: Hosking & Gosling Legal Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Delaney Lawyers ORDERS
CAC 2301 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BESTARI
Applicant
AND: MR HENLEY
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
23 AUGUST 2023
THE COURT ORDERS THAT:
1.I decline to make as final orders the orders of the nature proposed by the parties.
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).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
The parties have produced before the court terms executed by each of them as to the division of property interests. It may be accepted that the terms are still subject to some degree of negotiation by the parties and the parties have taken various steps to refine the terms in order to seek to bring them into a form that is acceptable for the making of consent orders.
The overall thrust of the terms proposed by the parties is designed to split the pool of property that they have identified in a ratio of 32.5 per cent to the wife and 67.5 per cent to the husband.
The central features of that proposal involved firstly the sale of certain properties located in Country B, secondly future valuations leading to the determination of value by the single expert previously appointed by the parties regarding a corporate entity or entities currently estimated by the parties to constitute approximately 20 per cent of the $10m plus pool. The third is the identification of property rights of a third party who is not a party to the proceedings in relation to a property in Country B.
This approach by the parties involves firstly a failure to identify legal and equitable interests, albeit in relation to a small portion of the pool identified by the schedule of property. Secondly, it involves their rights being contingent on a future estimate of the values of underlying plant and equipment, and accordingly of the corporate identity.
The consequences of this approach means that if I were to make the orders now I would not know the value of the pool. I accept that that is a possible feature of proceedings where a court may not know the precise value of the pool even though it knows its constituents and while this may not be, and often does not, pose a barrier to the making of orders that are just and equitable, the fact of a lack of understanding of the value the pool is a matter that imposes limits on the assessment of justice and equity in an individual case.
More importantly, the proposal by the parties casts an obligation on the parties for the settlement of property that is based on the say-so of experts who have not yet expressed opinions. The opinions are therefore not before the parties for the parties to assess their appropriateness before identifying them as the basis for their obligations and also where the opinion is not before the court to enable the court to determine the value and the extent of the obligations of each the parties. These arrangements for the future valuation, and a division based on that future valuation are not mere machinery provisions but provisions that go to the heart of the obligations of the parties as to the settlement of property under the proposed orders. This characteristic of the proposed orders has the colour of an impermissible delegation of the judicial function to a third party, despite the parties’ reliance on a percentage split, and secondly relies on the future valuation of a substantial asset, hence leaving me without the ability to be satisfied that the effect of the orders proposed by the parties would be just and equitable.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 24 August 2023
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