Blaise & Blaise (No 2)

Case [2023] FedCFamC1F 524

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Blaise & Blaise (No 2) [2023] FedCFamC1F 524

File number(s): MLC 9534 of 2020
Judgment of: MCNAB J
Date of judgment: 29 June 2023
Catchwords: FAMILY LAW – PROPERTY – Whether a party can seek to set aside orders made in their absence pursuant to Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Whether there is a reasonable explanation for absence – Whether the setting aside of orders will prejudice the other party.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth))
Cases cited:

Allesch v Maunz (2000) 203 CLR 172

Barbey & Tuttle [2013] FamCAFC 44

Blaise & Blaise [2023] FedCFamC1F 135

Division: Division 1 First Instance
Number of paragraphs: 37
Date of last submission/s: 6 June 2023
Date of hearing: 6 June 2023
Place: Melbourne
Counsel for the Applicant: Ms Tulloch
Solicitor for the Applicant: Kennedy Guy Lawyers
Counsel for the Respondent: Mr Lethlean
Solicitor for the Respondent: Kalus Kenny Intelex

ORDERS

MLC 9534 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BLAISE

Applicant
AND:

MS BLAISE

Respondent

order made by:

MCNAB J

DATE OF ORDER:

29 June 2023

THE COURT ORDERS THAT:

1.The applicant husband’s application filed 26 April 2023 be dismissed.

2.The applicant husband pay the respondent wife’s costs of and incidental to the application on a party/party basis with the assessment of such costs to be referred to a registrar of the court in the event that the parties fail to agree on the quantum of costs by 20 July 2023.

3.The husband pay the costs referred to in Order 2 within 14 days of such costs being agreed or within 14 days of their assessment and in the event that he fails to pay the costs, the sum of costs outstanding may be deducted from any payment made by the wife pursuant to Order 13 of the final orders dated 3 March 2023 or the payment referred to in Order 18.3 of those orders.

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 Blaise & Blaise has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

  1. By an application filed 26 April 2023, the husband seeks orders that…

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AGLC
Blaise & Blaise (No 2) [2023] FedCFamC1F 524
Case
[2023] FedCFamC1F 524
Decision Date

CaseChat Overview and Summary

In the case of Blaise & Blaise (No 2), the husband, Blaise, sought to set aside final orders made in the Family Court in relation to the division of property between the parties. The orders, which were made in the absence of the husband, provided that the wife would receive 70% of the known matrimonial assets. The husband argued that he had not intended to abandon his claim to retain the assets, and sought to set aside the orders or vary them to allow him to retain a portion of the assets. The court considered the husband's reasons for absenting himself from the hearing and his arguments for setting aside the orders.

The legal issue before the court was whether the husband had provided adequate reasons for his absence from the hearing and whether the court should exercise its discretion under Rule 10.13(1)(a) to set aside or vary the orders. The court considered the husband's affidavit and outline of case, in which he explained that he had felt overwhelmed and defeated by the proceedings, and had been unable to properly respond to the wife's proposal for a 70/30 split in her favour. The court also considered the wife's submissions that she sought to amend the orders sought by her to allow her to either retain the property or liquidate the assets and proceed to have them divided in her favour.

The court found that the husband's reasons for being absent from court were not an adequate reason on their own for setting aside the order. The court noted that proceedings in court are stressful, particularly family proceedings, but the husband had pointed to no conduct from either the wife and her legal representatives or the court which meant that he had no effective choice but to withdraw. The court also noted that the husband had been aware of the allegations of non-disclosure for some time and had not taken steps to address them. The court found that the husband's concerns about the validity of the entities and taxation requirements were not sufficient to excuse his absence from the hearing.

The court exercised its discretion under Rule 10.13(1)(a) to refuse the husband's application to set aside the orders. The court noted that the discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation. The court found that the husband's application was an abuse of process and an attempt to relitigate issues that had already been determined. The court also found that the husband's concerns about the fairness of the orders could have been addressed through an appeal or other appropriate legal process.

The court made orders that the husband pay the wife's costs of the application to set aside the orders. The court noted that the husband's application was an abuse of process and an attempt to relitigate issues that had already been determined. The court found that the wife was entitled to costs on an indemnity basis, and that the husband should pay the wife's costs of the application within 28 days. The court also noted that the husband's concerns about the fairness of the orders could have been addressed through an appeal or other appropriate legal process.

Orders

Orders of the court

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Background

Background to the litigation

Rule 10.13(1)(a) provides: (1) The court may at any time vary or set aside an order, if:(a) it was made in the absence of a party; …(2)Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.BACKGROUND The final orders were in relation to a property pool of around $6.5 million, with an overall adjustment of the parties’ net property interests in the proportions of 70% in favour of the wife and 30% in favour of the husband. Reasons for judgment were delivered and they set out the circumstances and the reasons that the court made orders in the absence of the husband. The parties had conducted an agricultural business since about 2009. As was noted in the reasons at [26]:The Court was provided with a business structure which shows a reasonably complex financial structure involving trustee companies and family trusts carrying on the business but, effectively, the business was divided into two parts. It is [an agricultural] business operated, on land owned by the parties through a company, [E Pty Ltd]. [E Pty Ltd] is the trustee of the [F Family Trust] (of which the parties are beneficiaries) and carries on the business of owning the land on which [produce] is grown and growing the [produce]. A company, [G Pty Ltd], of which the husband is the sole director, is in the business of [processing produce]. That is a short summary of the arrangements but should suffice for these purposes.[1] [1]Blaise & Blaise [2023] FedCFamC1F 135. The substantive property settlement proceedings to which the final orders relate commenced on 2 September 2020, resulting in ongoing proceedings between the parties for over two and a half years. The court formed the view that the husband had failed to provide full disclosure in relation to financial matters such that, at the time of trial, it was not possible to ascertain the extent and value of the matrimonial asset pool available for distribution. On the basis of the husband’s non-disclosure and the subsequent uncertainty of the matrimonial assets at trial, the wife sought, and ultimately obtained on an undefended basis, orders that she receive 70% of the known matrimonial assets. Findings in relation to the husband’s non‑disclosure are set out at [33] - [37] of the Judgment. The final hearing commenced on 1 March 2023. After opening submissions made by the wife’s counsel, the husband abandoned the remainder of the trial, emailing the court and the husband’s lawyers to advise of his non-attendance and to advise that he no longer wished to retain the assets held by the wife, but rather, sought a “complete liquidation”.[2][2]Applicant’s Outline of Case, Part D, Point 4, filed 6 June 2023. The circumstances in which the matter proceeded in the absence of the husband are set out in the reasons at [4]- [8] in the following terms: 4.The Court adjourned at the conclusion of opening submissions made by the counsel for the wife at 1 pm on 1 March 2023, and upon resuming at 2.15pm, the Court was informed by counsel for the wife that the wife's solicitors had been notified by the husband that he no longer wished to take part in these proceedings. The husband did not return to Court and orders were made on 1 March 2023 that the matter be adjourned until the following morning at 10.30 am on 2 March 2023, and if the husband did not appear the matter would proceed on an undefended basis. 5.A notation was included in the orders adjourning the matter which included a reference to the email sent to the wife's solicitors that the husband was "withdrawing all applications and orders" and would not be participating in these proceedings. These orders were forwarded to the husband by the Court and the solicitor for the wife by email. On the evening of 1 March 2023 the Court received correspondence from the husband in the following terms:-I do not wish to retain any of the assets or water or entities and in my earlier orders I never requested any of the machinery or plant and equipment. I never wanted to retain the entities as I do not trust their validity or taxation requirements only your client knows the status of these. At your clients requested 70% it’s not viable for myself to retain the property so I seek complete liquidation.6. In further correspondence addressed to the court of the same date he stated:-Apologies for not reappearing but I cannot defend myself without evidence and I’m not able to obtain information due to non-disclosure from the other side but I can’t prove they are not disclosing and finances I don’t have. Im not an accountant and concerned there is more undisclosed debt. I’ve done what I can against an opposition I’ve battled for 4 years where the fights are smoke an mirrors but I can’t prove where the money has gone and so many of my friends and family have been effected I don’t know how to move forward. I didn’t mean to disrespect the court I apologise to the Honourable Justice McNab but the money was taken in 2019 2020 and I still can’t find it. I don’t know what else to do. Please don’t make a ruling I’m left with scrap metal and no money I need to survive that’s all I ask once again my apologies. 7.Upon the matter resuming on 2 March 2023 the husband remained absent and orders were made that the matter proceed on an undefended basis. Orders were made at the conclusion on 2 March 2023 restraining the husband from dealing with the assets and property comprised in the matrimonial assets. 8.In light of this correspondence, counsel for the wife made submissions that she sought to amend the orders sought by her to be in broad terms that she have the right to elect to either retain the [property] which comprises the substantial asset of the marriage, and make payment to the husband once the value of the [property] had been assessed to reflect a 70/30 split in her favour, or that she have the right to liquidate the [property] assets and proceed to have those assets divided 70/30 in her favour. The hearing was adjourned to 3 March 2023 to provide the wife the opportunity to formulate proposed final orders. [3][3]Blaise & Blaise [2023] FedCFamC1F 135.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation. The court is not bound to give one matter more weight than another: Barbey & Tuttle [2013] FamCAFC 44 at [90].CONSIDERATION In support of his application, the husband relied his affidavit filed 4 May 2023 and an outline of case filed 6 June 2023. In relation to an explanation as to why he absented himself from the hearing the husband stated at [28]- [29]:28.When we returned into Court, [the wife’s] barrister spoke again about [the wife’s] proposal that she receive 70% of our assets. …[4]26. I told the court that if our assets were divided 70/30 in [Ms Blaise’s] favour we would need to “liquidate everything” … I could not afford to retain our business …[5]After the court adjourned on 1 March 2023 I felt that I could not continue. I felt overwhelmed by the morning and defeated. I felt that [Ms Blaise’s] barrister was saying things about me which were not correct but I could not properly articulate a response.[6][4]Applicant’s affidavit dated 21 April 2023 at [28].[5]Applicant’s affidavit dated 21 April 2023 at [26].[6]Applicant’s affidavit dated 21 April 2023 at [29]. The transcripts records that on the return to court counsel for the mother stated: [speaking about the applicant] he has just packed up and gone … I haven’t had heard any updated instructions at this stage … I can say, for what it’s worth, your Honour, it doesn’t surprise my client … [the] position that he’s taken. It’s a position that he raised with us on Monday in terms of saying – and he said this in open court – “If it’s any more than 50/50, then just liquidate the lot or sell the lot, I’m done.” That was at a time when he was put on notice in relation to our position being a 70/30 adjustment.” [7][7]Transcript of Hearing, FCFCOA Melbourne, 3 March 2023, page 104 at [35]. I do not accept that the husband’s reasons for being absent from court are an adequate reason on their own for setting aside the order. Proceedings in court are stressful, particularly family proceedings, however the husband has pointed to no conduct from either the wife and her legal representatives or the court which meant that he had no effective choice but to withdraw. No medical evidence has been referred to which would provide a basis for finding that there was some medical imperative for him to withdraw from the proceedings. The allegations that he had failed to make proper final disclosure were of relative longstanding and had been raised in previous court hearings in the same or very similar terms. Counsel for the husband submitted that a copy of the orders should have been sent to the husband despite the fact that he left court and said he was ‘done’. Counsel said the husband was self-represented and that there was a duty for him to be informed about the updated orders. He believed it to be the responsibility of the wife and her counsel to ensure he had notice of the form of final orders given that they differed from the terms of the orders sought at the commencement of the hearing.