Bonnel & Jephson
[2022] FedCFamC1F 812
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bonnel & Jephson [2022] FedCFamC1F 812
File number(s): BRC 12366 of 2021 Judgment of: BAUMANN J Date of judgment: 26 September 2022 Catchwords: FAMILY LAW – PROPERTY – INTERIM – Application by Second Respondent for summary dismissal of relief sought by the Applicant wife in substantive property proceedings with the husband – Where the Court is satisfied that, taking the wife’s evidence at its highest, there was no reasonable likelihood of success for her relief sought against the Second Respondent – Wife’s application for relief against Second Respondent dismissed Legislation: Family Law Act 1975 (Cth) s 45A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 26 September 2022 Place: Brisbane Counsel for the Applicant: Mr Tolton Solicitor for the Applicant: Jeff Horsey Solicitor Solicitor for the First Respondent: Small Myers Hughes Counsel for the Second Respondent: Mr Hackett Solicitor for the Second Respondent: Quinn Family Law ORDERS
BRC 12366 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BONNEL
Applicant
AND: MR JEPHSON
First Respondent
MS FAIRBURN
Second Respondent
order made by:
BAUMANN J
DATE OF ORDER:
26 SEPTEMBER 2022
THE COURT ORDERS:
1.That pursuant to Rule 10.09(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Second Respondent of the substantive proceedings, MS FAIRBURN be removed as a party to these proceedings and all actions against her be dismissed.
2.That paragraphs 9 to 13 inclusive, 25, 27 to 31 inclusive, 33 and 34 of the Applicant’s amended Initiating Application filed on 22 September 2022 be struck out.
3.That within seven (7) days from the date of these Orders, the Applicant shall return all documents received from F Company as referred to in her affidavit filed 21 September 2022 and shall file and serve an affidavit deposing:
(a)to the return of those documents in compliance with this Order; and
(b)that she is no longer in possession of those documents.
4.That paragraphs 5 to 8 inclusive of the affidavit filed 21 September 2022 by the Applicant wife be struck out.
5.That the following subpoenae filed by the Applicant relating to the Second Respondent be struck out:
(a)Subpoena to E Bank filed on 24 September 2021;
(b)Subpoena to G Company filed on 12 October 2021;
(c)Subpoena to E Bank filed on 11 August 2022; and
(d)Subpoena to Mr H – J Pty Ltd filed on 11 August 2022.
6.That the Subpoena Hearing listed before a Judicial Registrar on 26 October 2022 be vacated.
7.That the First Respondent’s costs of and incidental to the Second Respondent’s Application in a Case filed on 16 March 2022 and in pursuit of the Applicant against the Second Respondent be reserved, including those of today’s Court event.
8.That by 4.00pm on 3 October 2022, the Second Respondent shall file and serve written submissions in respect of costs as to both liability and quantum on both party and party and an indemnity basis.
9.That the Applicant shall file and serve any submissions in response to the Second Respondent’s written submissions in respect of costs within fourteen (14) days of being served with same.
10.That the proceedings remain listed for Case Management Hearing at 9.30am on 17 October 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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 Bonnel & Jephson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
To give context to the Application which I listed for hearing today, being an Application by Ms Fairburn filed as an Application in a Proceeding on 16 March 2022 in proceedings then in Division 2 of the Court, I provide the following history.
The substantive property proceedings involving the Applicant wife, Ms Bonnel, and the Respondent husband, Mr Jephson, who were married in late 2012 and separated in early 2020, has been on foot since the Applicant wife commenced both property and parenting proceedings in September 2021. Since that date, the case management of this matter has involved numerous attendances before Senior Judicial Registrars and/or Registrars. It is not necessary to identify all those events. Relevantly, however, it has been the position of the Applicant to the substantive proceedings, who I will call “the wife” – even though I know the parties were divorced on 1 March 2022 – that the husband has an interest in entities described as K Pty Ltd and K1 Pty Ltd.
The evidence before the Court establishes that the Applicant in the current application before me, Ms Fairburn, who is the mother of the husband, is the director of these entities and has been for many years – previously held jointly in a sense with her late husband Mr L. The wife asserts that the husband has an interest in those entities. An issue also arises from a loan agreement entered into and dated before the relationship commenced between the husband and wife in 2009, which was perfected post separation in terms of security over the property owned solely by the husband. The reasons for doing so are set out by Ms Fairburn in her affidavit, namely to protect her loan that she says she and her husband provided their son from as early as 2005.
The wife in these proceedings has been essentially unrepresented for most of the time. Even if one was to be generous to her inability to perfect in words properly enunciated legal claims, what seems difficult to reconcile with the position which I am confronted with today is how the wife has continued to assert that her belief, not supported by the evidence, creates the interest that she asserts the husband has in various entities, and creates the opportunity for her to set aside a mortgage which was founded on a loan agreement created in 2009.
One might have thought that when Judge Vasta had before him an application to remove the two companies from the proceedings, which he did by Order made 10 February 2022, that the wife would have understood that pursuing those companies was without foundation. Nonetheless, she does not seem to have understood that and her second further amended Initiating Application filed on the public holiday of 22 September 2022 restates and continues to assert claims which had been, in effect, already dealt with by the Court. I note for completeness that the Orders made by Judge Vasta on 10 February 2022 (for which I can only assume ex tempore Reasons were delivered as no published reasons seem to be available) were not the subject of any appeal.
His Honour, by those Orders, discharged Orders 5, 6 and 7 of Orders made 23 November 2021 by a Senior Judicial Registrar. Orders 5, 6 and 7 relate to not only an obligation by Ms Fairburn to provide documents in her possession, but at Orders 6 and 7 was an obligation on the Third and Fourth Respondents to provide relevant documents, including company tax returns, and notice of assessment and the like, from 1 July 2017 to 30 June 2021. The fact that Order was discharged is entirely consistent with the latter Order made by Judge Vasta to remove the then Third and Fourth Respondents from the proceedings. It was only after the Order was made by Judge Vasta that Ms Fairburn brought her application to be removed.
For reasons not entirely apparent to me, that application was not dealt with by Division 2 of the Court prior to the proceedings being transferred to this Division, which of course is a separate Court, and when the matter first came before me on 9 September 2022, the wife appeared without representation. I listed for today the Application in a Proceeding filed by Ms Fairburn to be removed and/or for the applications against her to be summarily dismissed. In support of the position that Ms Fairburn asserted, she had filed an outline of case document and written submissions by her Counsel, Mr Hackett. I have read those submissions. In my view, they correctly state the law to be applied; whether the application is for removal of a party or for summary dismissal.
I should note at this time that a further issue of concern arose in this matter, to which I was alerted during the course of submissions, relating to an adjournment application made by Mr Tolton of Counsel on behalf of the wife. In an affidavit filed by the wife at 11.10pm on 21 September 2022 according to the records before me, the wife, at paragraphs 5 through to 9, deals with how certain records, she says, came into her possession. They are clearly the records of the previously removed Respondents, K Pty Ltd and K1 Pty Ltd and K Pty Ltd and K1 Pty Ltd.
I accept that I have, and will possibly ultimately need some further evidence on this point. I was handed, and have marked as Exhibit 1 today, a letter under the hand of Mr M of F Company which indicates that Mr N, who I understand to be the wife’s current domestic partner, contacted the office of F Company on 12 September 2022 and spoke to the office, in effect, seeking access to information which, in the absence of further evidence, the wife as the party in these proceedings knew was the subject of an Objection that had been filed on 22 August 2022. An Objection which was to be dealt with by a Registrar in October 2022.
At least prima facie on Exhibit 1, a deception took place in encouraging a person who was a successor in practice to J Pty Ltd to provide information about the companies. I regard the evidence as concerning, but it may be capable of proper explanation at a later stage. Certainly the actions taken, as evidenced by at least Exhibit 1, caused me to rule that the affidavit of the wife filed 21 September 2022 is incapable of being relied upon in my view. I indicated that to the wife’s Counsel Mr Tolton. Confronted with these difficulties, Mr Tolton initially sought an adjournment of today’s application.
As the record will indicate, I invited Mrs Fairburn's Counsel Mr Hackett, and the husband’s solicitor advocate Mr O’Reilly, to identify what their indemnity costs thrown away were if an adjournment today was to be granted. They provided that evidence from the bar table that the costs amounted to $9,600 for Ms Fairburn and $5,600 for the husband (who supports his mother’s application). After some further exchanges with Mr Tolton – who made his application for an adjournment based primarily on the fact that having been briefed so late he was not in a position to argue a case on behalf of the wife on such short notice – further time was given to Mr Tolton to obtain instructions from his client as to her position, after it became apparent on the record that the adjournment application was opposed by both Ms Fairburn and the husband.
Mr Tolton returned to the Court and indicated that his instructions – and I take this to be firm and unequivocal instructions – were to discontinue the applications against Ms Fairburn, namely, the relief that she sought, I take it, in her second further amended Application. Mr Hackett had earlier alluded to the consequential effect of his client’s application being successful and also, quite properly, indicated to the Court that some of the relief being sought by the wife is exactly the same form of relief that she was seeking against the Third and Fourth Respondents, as they then were, before their removal by Judge Vasta. It would be, in my view, an abuse of process to allow the wife to proceed in that way in that form. Although she might say that the relief is perhaps differently described, the effect is the same.
Whilst I can accept that in a somewhat complicated financial matter the wife may, during the course of a relationship, have heard statements by her husband which would suggest that he may allege he had an interest in various entities (I note that under oath he denies such statements in any event), the reality is, and the evidence as set out by the wife and alluded to by Mr Hackett in submissions, do not demonstrate any such interest. They demonstrate that this entity in its two manifestations, K Pty Ltd and K1 Pty Ltd, have been in operation for many years, and in fact, Ms Fairburn says were created by her and her late husband at a time when her son was 14 years of age.
In her evidence, and in my view her affidavit which she relied upon simply and very directly, sets out the position – is that although her son might have been casually employed as a young person, and more recently as a subcontractor, that is not manifested in any interest beyond 180 shares in a company which only operates as a trustee. On an earlier occasion I raised concerns about the funds being spent on having a forensic accountant value effectively a trustee company with no assets. It seems to me that there has been a lack of focus on the real issues in this case and who are the parties in dispute.
The effect of Mr Tolton’s submissions today support, in my view, an order which I propose to make to dismiss the wife’s applications against Ms Fairburn, because Mr Tolton on behalf of the wife, raises no opposition to so doing. There is then a consequential striking out from the second further amended Application of any relief directed against Ms Fairburn.
To the extent that it may be necessary to make the point, I am satisfied that, taking the wife’s evidence at its highest, there was, within the meaning of r 10.09 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and s 45A of the Family Law Act 1975 (Cth), no reasonable likelihood of success against Ms Fairburn. I will invite the parties to provide me with a minute of order that sets out the areas of the second amended Application that should be struck out as a result.
I will make an order that the wife shall, within seven days, return documents received from F Company referred to in her affidavit of 21 September 2022, and shall file and serve an affidavit deposing to the return and the fact that she no longer holds any copies of those documents so received.
I will reserve the husband’s costs of the Application in a Proceeding and the events relating to the pursuit by the wife of relief against the Second Respondent Ms Fairburn.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 8 November 2022
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