FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Darcy & Darcy [2023] FedCFamC1F 208
File number(s): SYC 7201 of 2020 Judgment of: SCHONELL J Date of judgment: 29 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where the wife sought to join the husband’s mother and the estate of his late father – Where no orders are sought against them – Orders made for an amended response to be filed – Non-disclosure – Where both parties assert that the other party has not provided full and frank disclosure – Orders made for the parties to file affidavits setting out details of disclosure that has and has not been provided. Legislation: Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.03
Cases cited: B Pty Ltd and Ors & K and Anor (2008) FLC 93-380; [2008] FamCAFC 113
Galante & Galante and Ors [2019] FamCA 756
Kannis & Kannis (2003) FLC 93-135; [2002] FamCA 1150
Oriolo & Oriolo (1985) FLC 91-65; [1985] FamCA 54
State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56
Wayne v Dillon and Another (2008) 40 Fam LR 543; [2008] FamCAFC 204
Weir & Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 24 March 2023 Place: Heard in Sydney, delivered in Melbourne Counsel for the Applicant: Mr Bell Solicitor for the Applicant: Horowitz & Bilinsky Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Holmes Donnelly & Co Solicitors Counsel for Ms B Darcy and the Estate of the late Mr C Darcy: Ms Bailey Solicitor for Ms B Darcy and the Estate of the late Mr C Darcy: HWL Ebsworth Lawyers ORDERS
SYC 7201 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DARCY
Applicant
AND: MR DARCY
Respondent
MS B DARCY
Other
ESTATE OF MR C DARCY
Other
order made by:
SCHONELL J
DATE OF ORDER:
29 MARCH 2023
THE COURT ORDERS THAT:
1.Within 14 days, the applicant wife (“the wife”) file an Amended Application setting out:
(a)The final and interim property orders she seeks; and
(b)The orders, if any, sought against Ms B Darcy.
2.Within 14 days, the wife file a Points of Claim in respect of any orders sought against Ms B Darcy.
3.Within 28 days, the respondent husband (“the husband”) file any Response to any Amended Application filed by the wife pursuant to Order 1.
4.Within 28 days, Ms B Darcy file any Response and Reply to the Points of Claim should the wife seek any orders against her.
THE COURT ORDERS BY CONSENT THAT:
5.Order 20 made on 1 December 2020 be discharged to the extent of a further draw down in an amount of “75,000” to be placed in the husband’s solicitors trust account for the purposes of meeting the costs of the Arbitration, providing that:
(a)The Arbitration…
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CaseChat Overview and Summary
The court had to determine whether the husband should be compelled to provide the extensive disclosure requested by the wife, which included details about his financial transactions, corporate interests, and business activities. Furthermore, the court was tasked with deciding whether the husband should contribute to the costs associated with the arbitration that the parties had agreed to attend.
The court concluded that the wife's requests for disclosure were reasonable and necessary for the arbitration to proceed effectively. It was deemed that the husband's non-cooperation in providing full disclosure could hinder the arbitration process. The court also found that the costs of arbitration were a shared responsibility and ordered the husband to contribute to these expenses. The orders were structured to ensure that the arbitration could proceed as planned, with specific timelines and conditions for the disclosure of information and the allocation of arbitration costs.
The court ordered that the husband must provide full and frank disclosure of his financial dealings, business roles, and any other relevant information within a specified timeframe. Additionally, the court ordered the husband to contribute to the arbitration costs, ensuring that a predetermined amount would be drawn from a specific trust account to cover these expenses, provided that the arbitration took place before a set date. The court's orders aimed to facilitate the arbitration and manage the costs associated with the proceedings.
Orders
Orders of the court
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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
I propose to make orders in the terms of that document as this matter has now been around for over two years and the costs are becoming increasingly prohibitive. It seems to me that this is the only way in which this matter will ever approach being ready for an arbitration.COSTS OF ARBITRATION The wife sought orders that the husband pay a sum of money that would enable the parties to attend an arbitration. Ultimately agreement was reached between the husband and the wife that the parties attend an arbitration to occur before 24 September 2023. In that respect, Orders 6 and 7 of the Minute of Order were to the following effect:6)That Order 20 made on the 1/12 be discharged to the extent of a further draw down in an amount of “75,000” to be placed in the husbands solicitors trust account for the purpose of meeting the costs of the Arbitration, providing that a) The Arbitration occurs before 24 September 2023b) The draw down not to take place until 24 August 20237)That it be noted that the account to which Order 20 of 1/12/20 and Order 6 herein is the “Equity Manage Account being Account […39] which as at the date of these Orders has an available draw down of $215,276.82 (As per the original) (Exhibit 1) Ms Bailey indicated that in the event that her clients were joined to the proceedings, they would be able to meet an arbitration to occur on or about 24 September 2023. Accordingly, I propose to make orders that deal with those provisions.NON-DISCLOSURE The remaining parts of the wife’s application related to disclosure. In that respect, she sought the following orders:7 Order the Husband to provide within 14 days full and proper disclosure including without limiting same disclosure of any interest in any corporate entity or benefits received therefrom directly or indirectly and such disclosure as sought by the wife through her solicitors; or relating to any claim by his parents including any participation by himself in the lodgment of the caveat or the advance of any claim ; Or the source or dispersal of any funds for the acquisition or sale of any property identified by the parties any finance refinance or Application for finance; Or otherwise sought by the Wife through her Solicitors; Provided that if he is unable or opposes doing so then his written explanation …9. Order that within 14 days or such time as the Court shall think fit; and pursuant to Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021"Family Law Rules" the parties file Undertakings as to Disclosure.10. Order that within 14 days or such time as the Court shall think fit; the Husband provide full and frank disclosure of all information relevant to proceedings including but not only disclosure sought in correspondence to his solicitors including by letter dated 09 March 2023 and letter dated 14 March 2023 and time to time previously or thereafter.11.Order that within 14 days or such time as the Court shall think fit; without limiting relief sought above the Husband provide full and frank disclosure of his role (in any capacity) and benefits or entitlements including but not only from use of credit debit or other cards; purchases from store supplier or other accounts including loyalty or frequent flyer points whether or not such cards or accounts be in his name (solely or jointly) or any business including [D Pty Ltd]; "[D Pty Ltd]" or [D1 Pty Ltd], "[D1 Pty Ltd]" or the entity described as "[G Company]". 12. Order that within 14 days or such time as the Court shall think fit the Husband shall provide to the Wife (by their Solicitors) an Authority directed to th ird parties including but not only banks or credit providers; authorising them to provide financial information about him and his role in the above businesses (whether in his individual capacity or as servant director or officer of any business including [D Pty Ltd] and [D1 Pty Ltd] or “[G Company]”; such Authority in a form agreed by their Solicitors in writing or in a form and on such conditions as determined by the Court. 13. Order that within 14 days or such time as the Court shall think fit and pursuant to Part 6.3 of the Family Law Rules the Wife be permitted to serve Specific Questions and the Husband reply thereto within 14 days or such time as the Court shall think fit. (As per the original)