FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAGAN & SABONE | [2019] FCCA 3163 |
| Catchwords: FAMILY LAW – Interlocutory application for leave to apply out of time – delay – Family Law Act section 44(3). |
| Legislation: Family Law Act 1975 (Cth), s.44(3) |
| Cases cited: Holden & Holden [2015] FCCA 788 |
| Applicant: | MR CAGAN |
| Respondent: | MS SABONE |
| File Number: | PAC 2113 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 12 February 2019 |
| Date of Last Submission: | 12 February 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 12 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Shaw |
| Counsel for the Respondent: | Mr Cunningham |
| Solicitors for the Respondent: | Cunningham Solicitors |
ORDERS
Pursuant to section 44(3) of the Family Law Act 1975 grant leave to the husband Mr Cagan to commence or maintain proceedings for property adjustment under part VIII of the Family Law Act 1975.
Pursuant to Rules 14.06 and 24.04 of the Federal Circuit Court Rules 2001 and within 21 days the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a)Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b)An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;
(c)Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(d)Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;
(e)Market appraisals with respect to any parcel of real estate in which any party has an interest;
(f)Any document within the possession, custody or control of that party proving, disproving or tending to prove or disprove any allegation of fact contained in either party’s Financial Statement or Affidavit or which will be raised as an allegation of fact at hearing;
(g)Copies of market appraisals or computer site print outs as…
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- AGLC
- CAGAN & SABONE [2019] FCCA 3163
- Case
- [2019] FCCA 3163
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether to grant the husband leave to proceed with his property adjustment claim, notwithstanding the delay in its commencement. This required the Court to assess the circumstances surrounding the delay and determine if it was in the interests of justice to permit the application to proceed.
Judge Harman granted the husband leave to commence or maintain proceedings for property adjustment. The Court also issued detailed procedural orders aimed at ensuring full and timely disclosure of financial documents by both parties, including income tax returns, superannuation statements, bank and credit card statements, and market appraisals for real estate and vehicles. These orders stipulated strict timelines for disclosure and warned that failure to comply would result in documents being inadmissible as evidence. Further directions were given regarding the preparation of a draft balance sheet, the conduct of mediation, and the provision of fee statements by legal representatives. The proceedings were adjourned for further mention and directions, with parties required to be prepared to advise the Court on factual issues, trial estimates, and procedural directions, and to certify that all necessary disclosure and enquiries had been completed. The costs of the application for leave were reserved.
Orders
Orders of the court
1.
Pursuant to section 44(3) of the Family Law Act 1975 grant leave to the husband Mr Cagan to commence or maintain proceedings for property adjustment under part VIII of the Family Law Act 1975.
2.
Pursuant to Rules 14.06 and 24.04 of the Federal Circuit Court Rules 2001 and within 21 days the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a) Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b) An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;
(c) Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(d) Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;
(e) Market appraisals with respect to any parcel of real estate in which any party has an interest;
(f) Any document within the possession, custody or control of that party proving, disproving or tending to prove or disprove any allegation of fact contained in either party’s Financial Statement or Affidavit or which will be raised as an allegation of fact at hearing;
(g) Copies of market appraisals or computer site print outs as to value of any motor vehicle the value of which is not agreed.
3.
Any document which is, at the date of this Order, in the possession, custody or control of a party and which is not disclosed and a copy provided to the other party in accordance with the above Order will not be admitted into evidence.
4.
The Applicant shall within 28 days of today’s date serve upon the Respondent a draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:
(a) The Respondent shall then within 14 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable);
(b) Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy;
(c) Upon completion of any Single expert valuation the balance sheet shall be amended to reflect determined/agreed values; and
(d) The balance sheet reflecting current agreements and controversies shall be provided to the Mediator not less than 7 days prior to the Mediation and a final, settled version shall be filed prior to trial with the Case Outline filed by each person.
5.
Any party seeking to retain any asset and/or to pay monies to another person shall ensure that they have made all relevant enquiries as to their borrowing capacity and so that they are able to negotiate and make a real and genuine attempt to resolve the matter at the Mediation.
6.
Not less than 7 days prior to the Mediation each lawyer for a party shall provide to their client a written statement of fees incurred to that time, expected to be incurred for the Mediation and likely to be incurred in preparation for and conduct of a trial if the matter is not resolved.
7.
All documents in these proceedings shall be electronically filed.
8.
The proceedings are adjourned for further mention and directions to 12 April 2019 at 9.30am and with respect to same:
(a) The parties and their legal representatives are to attend on that date;
(b) The parties and their legal representatives shall be in a position to advise the Court as to the following:
(i) The factual issues for trial;
(ii) Proposed witnesses and estimated length of trial;
(iii) Any procedural directions to be sought to aid the limiting of issues or time required for trial;
(iv) Each party shall be expected to certify that all necessary disclosure has occurred, all valuations and enquiries completed before any consideration will be given to listing the matter for trial.
9.
Reserve the costs of both parties with respect to the determination of the application for leave.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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