Clifford & Grech
[2022] FedCFamC1F 560
Federal Circuit and Family Court of Australia
(DIVISION 1)
Clifford & Grech [2022] FedCFamC1F 560
File number(s): SYC 4491 of 2021 Judgment of: SMITH J Date of judgment: 21 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application for review – husband files application to strike out on an interlocutory basis all of wife’s evidence on matters other than the single issue on which points of claim ordered – registrar declines to list application for interim hearing – husband files application review – husband’s case for estoppel unarguable on evidence before court – matter for trial – application for review dismissed – wife seeks costs be reserved Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 21 July 2022 Place: Sydney by Microsoft Teams Counsel for the Applicant: Mr Brown Solicitor for the Applicant: Marsdens Law Group Counsel for the Respondent: Mr Dodd Solicitor for the Respondent: Pearson Emerson Family Lawyers ORDERS
SYC 4491 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GRECH
Applicant
AND: MS CLIFFORD
Respondent
order made by:
SMITH J
DATE OF ORDER:
21 JULY 2022
THE COURT ORDERS THAT:
1.The Respondent’s Application for Review of a Decision of the Judicial Registrar (“the Registrar”) filed on 6 June 2022 be dismissed.
2.The wife’s costs of and associated with the Respondent’s Application for Review of a Decision filed 6 June 2022 be reserved to a final 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).
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 Clifford & Grech is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
This matter is about whether or not it is appropriate for the court to allocate scarce judicial time to hear and determine the application in a proceeding filed by the respondent husband seeking to strike out, prior to trial, large parts of the affidavit evidence filed by the wife in respect of the case of whether or not a financial agreement entered into between the parties is in fact a binding financial agreement (“BFA”) within the meaning of the Family Law Act 1975 (Cth) (“the Act”) so as to oust the jurisdiction of this Court.
It is agreed that one of the issues concerning the question of whether or not the financial agreement is void relates to issues around an insurance policy.
On 5 August 2021 an order was made for points of claim to be filed around this life insurance issue.
As noted at page 237 of the respondent’s court book [MFI 2], it was said to be not in contention that the financial agreement included the following provisions, in section 69 of the financial agreement:
[Mr Grech] will maintain a policy of life insurance for his life in favour of [Ms Clifford] in the sum of $2 million. This sum should be indexed to CPI …
…
If the policy lapses due to [Mr Grech] failing to pay the premiums during the relationship, then this will render the agreement void.
The orders noted that the wife said that part of her case was that the financial agreement was void by operation of these provisions.
The wife filed, as set out at page 245 of MFI 2, her points of claim. These were points of claim made about the financial agreement, setting out the terms said to be relied upon, and then the fact that it was an express term of the agreement and that failing to pay the premiums would void the agreement, and also made points concerning non-renewal.
Significantly, however, and for the clear avoidance of any doubt, it was included in that points of claim at page 244 of MFI 2 an item “C” headed “No Estoppel”, which said:
11.These points of claim are filed in accordance with order 1 of the orders of 5 August 2021 and confined to compliance with such order that [Ms Clifford] does not abandon or otherwise waive such contentions as she may advance in relation to whether the financial agreement is otherwise binding upon the parties and/or be liable to be set aside.
Having read the orders and the wife’s document it seems absolutely clear to me that she was not pleading a case that she otherwise accepts that every single fact and circumstance necessary to establish that the agreement is a BFA within the Act has been conceded. Instead, she makes it crystal clear in writing at the time that she has pleaded points of claim only in respect of this single issue and otherwise maintains her rights.
Nevertheless, for reasons which are not clear to me, at page 251 in the response or defence to the points of claim, the husband says, at [16]:
The respondent admits paragraph 11 of the points of claim, save that the respondent contends that an issue estoppel arises with the effect that the applicant is estopped from making any contention in the proceedings that the financial agreement ought be set aside because it is void on any basis other than that contained in the Points of Claim.
I do not know on what basis an estoppel can be said to arise.
If it is said to be on the basis of the Court orders for points of claim, that seems to me to be an unarguable position.
But it was upon the basis of the assertion that the husband is entitled to limit the wife to the case she will run in this way that he then filed his Application in a Proceeding on 18 May 2022.
The application in a proceeding is set out in MFI 2 at page 17. At page 18, the orders sought are set out and are:
1.That the Applicant's Affidavit sworn and filed 1 December 2021 is removed from the Court file.
2.That the Applicant swears and files an amended Affidavit to be filed with paragraphs 36 to 56 of the Affidavit sworn and filed 1 December 2021 removed
3.That the Affidavit of [Ms B] sworn and filed 11 February 2022 is removed from the Court file.
4.That the Applicant causes an amended Affidavit to be sworn and filed with paragraphs 8, 9, 13 and 14 of the Affidavit of [Ms B] sworn and filed 11 February 2022 removed.
5.That the Affidavit of [Ms C] sworn and filed 11 February 2022 is removed from the Court file.
6.That the Applicant causes and amended Affidavit to be sworn and filed with paragraphs 9 and 10 of the Affidavit of [Ms C] sworn and filed 11 February 2022 removed.
7.That the Respondent's Affidavit sworn and filed 17 January 2022 is removed from the Court file.
8.That the Respondent swears and files an amended Affidavit with paragraphs 5 and 6 of the Affidavit sworn and filed 17 January 2022 removed.
9.That the Applicant pays the Respondent's costs of this Application.
It will be seen that the husband seeks to remove large parts of the wife’s affidavit evidence.
I have looked at the applicant’s affidavits, but have not looked at the other material. The applicant’s affidavits include matter such as family violence and other issues which go to the matters which one commonly sees raised as being relevant to the determination of the question of whether or not a financial agreement which has been entered into is a BFA within the meaning of the Act so as to oust the jurisdiction of the Court.
That Application came before a Judicial Registrar and the Judicial Registrar declined to list the matter for interim hearing.
The Judicial Registrar made an order that:
The respondent husband filed an application in a proceeding on 17 May 2022 and I decline to make any order or directions in relation to such application.
The husband has then filed an application for review on 6 June 2022 seeking orders:
That the application in the proceeding filed 17 May 2022 is listed for Interim Hearing.
This is the matter which comes before me.
The husband says that he is entitled, prior to trial and on an interlocutory basis to argue an estoppel that would limit the wife to the single point relating to the insurance policy.
I note that this not a pleading jurisdiction, and that it is common, as occurred here, for points of claim and points of defence to be required in respect of particular issues, such is the question about whether or not there was an insurance policy and someone hasn’t paid it, as has been dealt with.
This is not a jurisdiction where if you do not plead it, you are held out. That is anathema to the way in which this jurisdiction operates. Different people have different views on whether that is appropriate or not, but that is the circumstance we are in.
In any event, the wife made it absolutely crystal clear that she reserves all of her other rights and to puts the husband to proof that there was compliance with all of the statutory requirements for the agreement to be a BFA.
That is the primary issue.
The wife said in her objection in her Case Outline [MFI3] at page 2:
1.The objections to the affidavit material filed on behalf of the wife on the grounds of relevance are a matter appropriately determined by the trial judge at the hearing of the threshold issue as to the validity of the financial agreement entered between the parties.
2.A separate interim hearing will result in increased costs and has the potential to delay the allocation of hearing dates for the determination of the threshold issue, contrary to the overarching purpose of the Federal Circuit and Family Court of Australia (Family Law) Rules, 2021.
I entirely agree with the wife’s submission.
The husband says that he is entitled, in effect, to stop the wife from even having the chance to argue these other issues at trial by requiring her to have struck from the record all of her evidence that might go over other issues.
I think the husband’s position is entirely untenable.
I agree with the Judicial Registrar’s procedural orders. The premise of the husband’s application which is that he is entitled, prior to trial, to run a case that would confine the wife to a single issue by reason is unarguable on the evidence.
The order was for specific pleading of a specific issue, this is a non-pleadings jurisdiction, and wisely she took great care to make sure she specified that she was not waiving any of her other rights or making any other concessions.
In any event, she is entitled to have a trial court determine what is and what is not relevant.
In those circumstances, I dismiss the Application for Review filed on 8 June 2022.
Those are my reasons.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 12 August 2022
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