Chanka & Hari
[2024] FedCFamC1F 649
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chanka & Hari [2024] FedCFamC1F 649
File number: NCC 1252 of 2023 Judgment of: CAMPTON J Date of judgment: 20 September 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Extension of time to comply – Leave granted to make oral application to extend time to comply with orders – Direction for further mediation – Overarching purpose of the Federal Circuit and Family Court as contained in s 67 Federal Circuit and Family Court of Australia Act2021 (Cth) – No jurisdiction to commence parenting proceedings in Division 1. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited: Gilford & Cavaco (2024) FLC 94-183; [2024] FedCFamC1A 55 Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 20 September 2024 Place: Sydney Solicitor for the Applicant: Ms Roberts, Delaney Roberts Family Lawyers Solicitor for the Respondent: Ms Shevket, Fox & Staniland Lawyers ORDERS
NCC 1252 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHANKA
Applicant
AND: MR HARI
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Each of the husband and the wife be granted leave to make an oral application to extend the times to comply with the orders made 20 June 2024.
2.The time for the wife to comply with Order 1 made 20 June 2024 be extended until 27 September 2024.
3.The time for the husband to comply with Order 2 made 20 June 2024 be extended until 4 October 2024.
4.The time for the parties to comply with Order 5 made 20 June 2024 be extended until 11 October 2024.
5.The time for the wife to comply with Order 6 made 20 June 2024 be extended until 18 October 2024.
6.The time for the husband to comply with Order 7 made 20 June 2024 be extended until 18 October 2024.
7.The parties engage in a further mediation with a view to attempt to compromise outstanding issues between them on or before 8 November 2024.
8.In the event the matter does not resolve at mediation, each party is directed to serve on the other an offer of settlement pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on or before 13 November 2024.
9.The parties are directed to attend in person for a further case management hearing on 15 November 2024 at 10.00 am.
10.In the event the parties achieve an agreement at mediation or otherwise they are at liberty to submit to chambers consent property orders for consideration.
11.In the event the parties achieve a compromise of the parenting matter and require consent orders be made it is noted that their legal representatives will advise chambers of that circumstance, the parties will file an Application for Consent Orders in Division 2 for those orders to be made, and my chambers will attempt to facilitate, as far as possible, the making of those consent orders in that forum.
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 Chanka & Hari has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
By way of an Initiating Application filed on 27 April 2023 by Ms Chanka (“the wife”) in the Federal Circuit and Family Court of Australia (Division 2), relief was purportedly sought adjusting property between she and Mr Hari (“the husband”) pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband, by way of a Response to Initiating Application filed 2 June 2023, purportedly sought different orders adjusting property.
The parties undertook a mediation with Mr B, barrister, on 24 May 2024. A certificate of dispute resolution was issued by the mediator indicating that the property dispute had resolved. In the shadow of that certificate, on 11 June 2024, orders were made by a judicial registrar in Division 2 transferring the proceedings to the National Assessment Team for possible transfer to Division 1 and inclusion in the Major Complex Property List, identifying that the property of the parties was in the range of $50 million and there are complex issues in the identification and valuation of those interests. On 20 June 2024 further orders were made by another deputy registrar transferring the proceeding to this Court and placing the proceedings in the Major Complex Property List.
On 20 June 2024 the matter came before me in chambers. A review of the proceeding was undertaken. After that review, orders were made in chambers in the following terms:
1.On or before the 16 July 2024 the Applicant wife shall serve upon the Respondent husband a joint draft balance sheet to include all assets, liabilities, superannuation interest and financial resources as she understands to be suggested to be relevant and to include values as she understands are alleged by each party.
2.Upon receipt of the joint draft balance sheet, the husband on or before 23 July 2024 shall make any additions to the balance sheet as required to reflect his contra allegations and any values that are agreed.
3.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.
4.Upon completion of any Single Expert Valuation, the balance sheet shall be amended to reflect determined/agreed values.
5.A final, settled version of the joint balance sheet shall be filed and served on or before 20 August 2024.
6.On or before 27 August 2024 the applicant wife is to file and serve any Amending Initiating Application setting out with particularity the final orders sought.
7.On or before 3 September 2024 the respondent husband is to file and serve any Amending Response to an Initiating Application setting out with particularity the final orders sought.
8.The parties are to confer not less than 7 days prior to the listing as to the terms of the instructions to be given to any updated single expert opinion as to valuation, any orders or directions to facilitate that process and to have jointly made enquiries of the experts as to when the updated expert opinion as to value will be completed.
(As per the original)
The matter was listed today for case management, three months after the orders made 20 June 2024.
Neither party complied with the orders made 20 June 2024.
The relief sought by the wife in her Initiating Application filed 27 April 2023 and that of the husband in his Response filed 2 June 2023, is incompetent and, on one view, is an abuse of process.
No application was made by either party to re-list the proceedings arising from any difficulty being encountered in complying with the orders and directions made 20 June 2024.
At no time in the proceedings has either party filed a Financial Questionnaire.
At no time in the proceedings has either party filed a balance sheet identifying and valuing their contended property interests.
The solicitor for the wife advised today that the wife was of the view, until yesterday, that the compromise achieved by the parties at the mediation would be implemented. The husband has recently changed solicitors and indicated that some issues have been encountered in the terms of the compromise achieved at the mediation.
Submissions were sought from the legal representatives of the parties today as to why, in the circumstances of their complete default in complying with the orders of 20 June 2024 and not prosecuting the proceeding with diligence, each of the Initiating Application and Response thereto as filed ought to not be dismissed. Any prejudice, including delay and increased costs, would be the product of the conduct of the parties. Each of the parties would retain the capacity to recommence proceedings in Division 2.
The husband further has raised an issue as to the parenting of the 10-year-old child of the parties and an intention to seek to amend his Response to also seek parenting relief. As identified today, any suggestion that there could be an amendment to his Response to seek orders as to parenting in Division 1 is not available. The appellate division of this Court has determined that there is no jurisdiction to amend a s 79 clause in Division 1 to incorporate and commence a parenting course. Any parenting application would need to be separately commenced in Division 2 (Gilford & Cavaco (2024) FLC 94-183).
This Court is regulated by the mandates contained in s 67 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”). It records:
67 Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
Section 68 of the FCFCOA Act reiterates and elaborates on the overarching purpose of family law practice and procedure. It imposes a duty on litigants to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. This is reinforced by r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The Act and Rules require the Court, on a mandatory basis in all proceedings before it, to achieve the overarching purposes. This includes the efficient use of judicial and administrative resources available for of the Court’s business, the efficient disposal of the Court’s overall case load, and the disposal of proceedings in a timely manner that is proportionate to the importance and complexity of the matters in dispute. Case management principles need to be implemented, even to the prejudice of a party to the proceedings. It is in the public and litigants’ interests for the efficient use of Court resources. Parties to a proceeding are not entitled to consume public resources in the pursuit of their own interests. While case management is not an end in and of itself, the goal of case management is to create justice and the efficient use of outcomes for parties, other litigants, and the community at large.
In this case, the parties were given a directive by way of orders and an opportunity to progress their case. They elected not to pursue that opportunity. Each of the parties today has appropriately acknowledged their failure to comply with the orders of the Court and as to the obligations mandated by way of the Act and legislation. They each make an oral application to extend the time for each to comply with the orders made on 20 June 2024.
The parties are to receive credit the way they have approached the matter today. They ought to have an opportunity to achieve a resolution of the outstanding issues between them in a manner which does not continue to consume and waste the Court’s resources such that it be subject to condition by way of undertaking a further mediation.
In all the circumstances, it is appropriate to exercise discretion to permit the parties to attempt to resolve their outstanding disputes, and if that resolution cannot be achieved, to allow the litigation to proceed efficiently.
For all of the above reasons, I make the orders as set out herein.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 25 September 2024
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