Carrillo & Carrillo (No 2)
[2024] FedCFamC1F 489
•5 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carrillo & Carrillo (No 2) [2024] FedCFamC1F 489
File number(s): BRC 2953 of 2022 Judgment of: BAUMANN J Date of judgment: 5 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment dismissed – Matter listed for discrete hearing on identified issues Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 5 July 2024 Place: Brisbane Counsel for the Applicant: Mr J Selfridge Solicitor for the Applicant: Sambanis Family Law Solicitor for the First Respondent: Barry Nilsson Lawyers Counsel for the Second Respondent: Mr D Dura SC Solicitor for the Second Respondent: Hopgood Ganim Lawyers ORDERS
BRC 2953 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARRILLO
Applicant
AND: MR CARRILLO
First Respondent
MS B CARRILLO
Second Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
5 JULY 2024
THE COURT ORDERS:
1.That the Applicant wife’s oral application for an adjournment of the Final Hearing be dismissed.
2.That Order 5 of the Order dated 30 November 2023 be discharged such that the Final Hearing scheduled to commence on 22 July 2024 be vacated.
3.That Order 4 and 6 of the Order dated 2 July 2024 be discharged.
Discrete hearing
4.That these proceedings be set down for Discrete Hearing for not more than four (4) days commencing at 10.00am on 23 July 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
5.That the Applicant file and serve by no later than 2.00pm on 15 July 2024:
(a)one (1) consolidated affidavit of evidence in chief; and
(b)one (1) affidavit of each witness intended to be relied upon at trial.
6.That the First Respondent and Second Respondent each file and serve by no later than 4.00pm on 19 July 2024:
(a)one (1) consolidated affidavit of evidence in chief; and
(b)one (1) affidavit of each witness intended to be relied upon at trial.
7.That each party file and serve on each other no later than 2.00pm on 22 July 2024, a case outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a list of affidavits and Applications and/or Responses intended to be relied upon at trial; and
(d)any contentions as to law and List of Authorities.
8.That no party shall be entitled to rely upon any other affidavit material not filed in accordance with these directions without leave of the Court.
9.That any objections to evidence are to be exchanged by 9.00am on 22 July 2024 with any response to the objections made to be delivered by 12.00pm on 22 July 2024 and thereafter a memorandum be forwarded to the Associate to the Honourable Justice Baumann by email at …@... by no later than 2.00pm on 22 July 2024 setting out the objections that are agreed and the objections that require a ruling at the hearing.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Carrillo & Carrillo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(settled from the oral reasons delivered)BAUMANN J:
The appearances today of Mr Selfridge of Counsel for the wife, Mr Dura of Senior Counsel for Ms B Carrillo, and Mr Douglas, solicitor advocate for the husband made oral submissions arising from an Order published on 2 July 2024, reasons for which will be available shortly, that essentially:
(a)brought to an end by reason of a decision not to give leave to the wife to further amend her relief in relation to some unit trusts; and
(b)to allow the wife to amend her claim that the husband has an interest in the discretionary trusts.
ORDERS DELIVERED
The issues that remain as discrete issues, apart from the general s 79 of the Family Law Act 1975 (Cth) (“the Act”) competing applications of the parties, as sought in the wife’s various applications, are as follows:
(a)A dispute in relation to an employment agreement between the husband and entities associated with his mother, which the wife seeks to set aside;
(b)Some loan agreement between the husband and entities associated with his mother, which the wife says are either a sham, or should otherwise be set aside; and
(c)The relief permitted by the Orders of 2 July 2024, to amend the claim by the wife that the husband has an interest in discretionary trusts on the basis of a number of reasons set out in her submissions.
In my view, the history of this matter and the significant costs that the wife is incurring that escalate, it would be in the interest of justice and these parties, that the allocated trial time commencing the week of 22 July 2024 should be utilised as best as possible. I am particularly conscious of the fact that a third party, the husband’s mother, Ms B Carrillo, is being retained within these proceedings that are a dispute between her son and her former daughter-in-law.
In that regard, I am prepared to hear and determine, at least discretely at this stage, the three significant areas that I have previously identified in these Reasons. With the employment agreement and loan agreement arguments, the wife has known since at least 2022, if not at least since November 2023, that she was given leave to proceed. She should have been taking steps to prepare for that argument, bearing in mind that the trial date had been set for July 2024. Through the argument in relation to the discretionary trust, although the first articulation of a claim the subject of a striking out application, effectively summary dismissal which was successful, the wife has consistently been pressing that interest exists. Although she has modified the nature of her claim, she again could hardly be taken by surprise that that matter would proceed.
I accept, contrary perhaps to what Mr Dura of Senior Counsel says, that it may be possible, depending on the constitution of the Full Court, for the order made dismissing the wife’s application to amend, so as to assert that the husband had an interest in four unit trusts, might be subject to a successful appeal. If that were the case however, and bearing in mind that once the discrete issues are dealt with, it seems to me that if she pursues an appeal and is successful, and if there is still a need, as there will be, as between the husband and wife to deal with their s 79 relief, then the prejudice to Ms B Carrillo is that she will then be dragged into that part of the proceedings. Mr Dura SC, on behalf of Ms B Carrillo, acknowledges that possibility and says his client is prepared to take that risk. Now clearly, any appeal would be contested it would seem, if an appeal is actually made, which is not a matter for me.
I propose that the trial commencing 22 July 2024 deal with the issues identified in these Reasons, as remain under the current pleaded relief sought by the wife. The transcript revealed that I identified at least as an option with Counsel today that it is better to allow the parties to commence a trial on 23 July 2024 and use the four days of that week. I do not think we will need more than that. I identified a possibility of moving the trial to the following week. Mr Dura SC and Mr Hackett have been retained in the matter, although Mr Selfridge has kindly appeared for the wife today, on limited instructions, and Mr Douglas, who has retained Mr Jordan of Counsel, it seems that the following week is not going to be convenient, because it would cause new Counsel to be retained. That, in my view, is not desirable.
Therefore, we will use the time available on 22 July 2024 to give the parties some time to have some further discussions, when Mr Dura KC is in Brisbane, as are the other Counsel.
It is a very simple mathematical equation to work out that we have two weeks before the trial was to commence. It will be noted from the transcript that I at least considered, although answering my own questions to some degree, we are not totally convinced that it might have been appropriate for the wife to await the assertions of Ms B Carrillo and the husband, in respect of their positions on the three discrete issues. It is of course consistent with both common sense and authority that a person who asserts a fact bears the evidentiary onus of establishing that fact. Accordingly, the wife will be required to file her material first.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 26 July 2024
0
0
1