Caddel & Caddel
[2023] FedCFamC1F 890
•17 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Caddel & Caddel [2023] FedCFamC1F 890
File number: SYC 5846 of 2022 Judgment of: CAMPTON J Date of judgment: 17 October 2023 Catchwords: FAMILY LAW – PROPERTY – Where the wife has made multiple requests of the husband seeking disclosure of documents and information including as to real property in which the husband asserts a beneficial interest currently subject to Supreme Court litigation – Where the husband contends that he has properly abided by his disclosure obligations codified in ch 6 of the Rules – Where he has not in fact fulfilled those obligations – Orders made for his obligations to be fulfilled – Orders as costs made in favour of the wife. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, r 6.06
Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 17 October 2023 Place: Sydney Solicitor for the Applicant: Rubin Blight Hardy Family Lawyers & Mediators Solicitor for the Respondent: Long Saad Woodbridge Lawyers ORDERS
SYC 5846 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CADDEL
Applicant
AND: MR CADDEL
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
17 OCTOBER 2023
THE COURT NOTES THAT:
A.Marked as Exhibit 1 is a document entitled ‘Wife’s minute of order proposed relisting’ that contains notations A – E and Orders 1 – 3. Forming part of Exhibit 1 is Annexure A being the letter from Reuben Blight Hardy Solicitors to Long Saad Woodbridge Lawyers of 18 August 2023.
THE COURT ORDERS THAT:
1.The wife have leave to make an oral application for Orders as to disclosure and case management in accordance with Exhibit 1.
2.Within seven days the husband provide to the legal representatives for wife:
(a)A response implementing his obligations as codified in chapter 6 of the Rules to the letter from the wife’s solicitors to husband’s solicitors dated 18 August 2023 together with such documents that are in his possession or his control verifying those responses; and
(b)An update as to the progress, directions and pleadings made or filed in the Supreme Court proceedings.
3.The husband pay to the solicitors to the wife within seven days the cost of the re-listing and determination today fixed in the sum of $770.
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 Caddel & Caddel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings for the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) commenced by the Ms Caddel (“the wife”) on filing an Initiating Application on 22 August 2022. Mr Caddel (“the husband”), by way of a Response filed 14 December 2022, seeks different orders as to property adjustment. The proceedings are in my docket and have been placed in the Major Complex Property Proceedings list.
The parties married in 1983 and separated on 1 December 2018. An order for divorce was made on 6 February 2023.
A series of orders have been made as to the management of the proceedings. The last such orders made on 15 August 2023 broadly provide for the preparation of reports by single expert witnesses as to the valuation of the property of the parties, including by way of an opinion of a single forensic accounting expert, Ms B, as to the corporate and trust interests of the parties by way of hotel trading enterprises. Specifically, and in addition, by way of those orders the wife sought and obtained orders as to disclosure from the husband as to his interest in a real property at C Street, Suburb D, such property being the subject of current litigation in the Supreme Court of New South Wales to which he is a party. The notations and orders made on 15 August 2023 record as follows:
THE COURT NOTES THAT
A.The husband’s solicitors have received in recent times documentation relevant to the Supreme Court proceedings filed on 23 March 2023 as to the beneficial ownership of a property at [Suburb D] indicating that such litigation is currently the subject of a timetable as to the filing [sic] of evidence and potential directions as to expert evidence in anticipation of a mediation. It is unknown at this time as to when such mediation or likely hearing days will be allocated.
B. Each party advises the Court today that the fact of a failure to complete [sic] the Supreme Court litigation subject to proper disclosure would not prevent the s 79 dispute proceeding to mediation and if not compromised in that process being allocated final hearing dates.
THE COURT ORDERS THAT:
…
7. Either party has liberty to relist on short notice in the event of any issue arising as to the progression of the single expert evidence or disclosure or preparation of the matter for mediation by way of email request to chambers and in the event of such relisting the party requesting the relisting shall append to the email copied to the other party a Minute of Order sought on the relisting [sic] mention.
Pursuant to leave granted, the wife has agitated today on relisting, by way of a proposed Minute of Order (being Exhibit 1 in these proceedings) specific orders as to disclosure from the husband, including in respect of matters germane to the Supreme Court litigation. The request for disclosure was first made in a letter from her solicitors to the husband’s solicitors dated 18 August 2023.
The wife contends - and it appears comparatively uncontroversial - that she has chased a response from the husband in relation to the disclosure sought in the said letter dated 18 August 2023 on four occasions, the last being 6 October 2023. She further records that on 22 September 2023, the husband indicated he required 14 days to provide a response to her letter dated 18 August 2023. Notwithstanding his assurance, as at today (being greater than 14 days after 22 September 2023) that response is yet to be received.
It is the wife’s case that the material disclosed thus far by the husband as filed in the Supreme Court litigation identifies substantive funds being diverted from what she described as the “marital relationship” in the range of about $600,000 per annum over a period of time, and that the husband is yet to provide any accounting in relation to the use and application of those funds. It is her case that the real property, being the subject matter of the other litigation, goes to the composition of a significant item in the balance sheet identifying the current property of the parties.
It is the husband’s contentions that he has properly disclosed that which is required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), that the evidence in the Supreme Court litigation is not yet closed, and that the Supreme Court litigation will be the subject of a mediation sometime early next year. He further contends that the wife’s request for the disclosure of documents and information requires him to produce documents that he does not have in his possession or control and that, in any event, he requires a further six weeks to give what he describes as a “fulsome response” to the wife’s disclosure request. By way of submissions made by his solicitor today, he advises the Court that he has identified and put into place a new system for recording and booking revenue from particular enterprises and that he is scrambling to prepare the 2023 financial statements for the relevant trust and corporate entities to permit Ms B to complete her single expert opinion in anticipation of a s 79 mediation in early 2024.
It is trite to observe that a party to property proceedings is required to make a full and frank disclosure of their financial position. Longstanding case law on this subject matter is reinforced by ch 6 of the Rules. The duty of disclosure is absolute. It is continuing onus throughout the litigation process. It is critical to the function of the jurisdiction and fundamental to achieving justice and equity. The fact that an obligation of disclosure exists as a duty to the Court, as well as to the other parties, is significant. It is also significant that the obligation in respect of disclosure is as to “information relevant to the dispute” and not simply one that attaches to the production of documents. Again, pivotally, it extends to all relevant and material facts. The authorities make it clear that a failure to comply with an obligation of disclosure carries with it a capacity of the Court to be robust in making findings in favour of an innocent party.
It is also relevant that this is not the first complaint made by the wife in this litigation as to the husband’s compliance with his obligations of disclosure as being deficient and/or tardy. The husband has filed two undertakings as to disclosure, in compliance of r 6.06 of the Rules in the course of these proceedings, being on 22 February 2023 and 2 June 2023. Those documents record that the husband has had explained to him, by a solicitor, the nature of the undertaking he has given. It is self-evident that it is a serious document.
Putting it simply, it ought not have been necessary for the wife to relist these proceedings, having regard to the calibre of the husband’s legal representatives and the fact as to his own knowledge as to his disclosure obligations in respect of these proceedings.
It is accepted that the husband can only disclose documents or information that is in his possession or control. If he has some documents in his possession or control as to meet a proper request for disclosure, he ought to provide them, and they ought be provided efficiently and without delay. As part of that disclosure of information, he should identify the other documents that he knows, or ought to know, go to the request and indicate to the wife where they may be obtained; or, if they are to be produced, when they might be produced, so as to ensure that the parties are on an even footing in relation to the litigation contest.
The relief sought by the wife in Exhibit 1 required a response to her letter seeking documents and information by way of disclosure together with any documents supporting the husband’s disclosure within 24 hours and “an update as to the progress of the Supreme Court proceedings”. Notwithstanding the tardiness of the husband over a period of two months in not providing a satisfactory reply to the letter, I am of the view that 24-hour time frame is not reasonable. In all the circumstances I propose to allow the husband seven days to make that response by way of disclosure.
The wife further seeks consideration of a form of self-executing order, should there be a failure of the husband to comply with his obligations of disclosure, whereby the husband’s response would be relisted to be struck out and the wife being permitted to proceed on an undefended basis. I will not make such order at this time. That said, the husband ought to be under no illusions that future failures in fulfilling his disclosure obligations will be considered seriously by the Court. So that it is clear the obligations of disclosure as codified within the Rules are not suggestions or guidelines. They are mandatory obligations.
By way of these reasons, each of these parties are on notice that a failure to comply with ch 6 of the Rules will expose them to their substantive applications being struck out, with the capacity of the other party to proceed on an undefended basis. Again, so that it is clear, in the event such application is to be pursued by either party, it would be appropriate that it be contained within an Application in a Proceeding supported by an evidentiary foundation.
The wife sought costs of the relisting in the sum of $770. The husband did not wish to be heard on the application. The circumstances justify the costs sought in the fixed sum. The husband did not require reasons for the costs determination. The order sought by the wife as to costs is just and will be made.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 October 2023
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