Davern & Davern (No 3)
[2023] FedCFamC1F 781
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Davern & Davern (No 3) [2023] FedCFamC1F 781
File number: SYC 9296 of 2020 Judgment of: CAMPTON J Date of judgment: 8 September 2023 Catchwords: FAMILY LAW – PARENTING – where final consent parenting orders were made three months ago - the husband filed an application seeking to restrain the wife from an anticipatory contravention of the orders – where the husband has not complied with orders himself - where such an application is of no utility –– where the application is an abuse of process – application dismissed 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: 22 Date of hearing: 8 September 2023 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
SYC 9296 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAVERN
Applicant
AND: MR DAVERN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
8 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application in a proceeding of the husband filed 6 September 2023 is dismissed.
2.The orders made in chambers by a judicial registrar on 6 September 2023 are discharged.
3.The orders listing of this matter on 13 September 2023, before the deputy chief justice, and on 15 September 2023, before a senior judicial registrar, be discharged and such listings are vacated.
THE COURT NOTES THAT
A.The primary property of the parties is Vessel B owned by N Company being an entity registered in what is described as a “Flag State” being Country AA. The husband and wife are equal shareholders in N Company. The husband is the sole director of N Company.
B.N Company holds the primary property of the parties being the vessel which is moored in Country R. The husband currently resides on the vessel.
C.The parties do not hold any real primary property interests.
D.On 18 October 2021, approaching two years ago, orders were made by Altobelli J for the vessel to be sold within 3 months. That sale has not progressed.
E.The matter was previously listed on 25 November 2022 for a 2 day trial in the Sydney Rolling Lists commencing 13 March 2023. That listing was subsequently vacated as recorded in the reasons for judgment delivered earlier today.
F.Orders were made on 15 March 2023 appointing a single expert to value the vessel. The experts report is yet to be filed. It opines the value of the vessel at 1 million Euro. Each of the parties put into contest the opinion of the single expert as to the value of the vessel.
G.On 6 September 2023, two years after the orders for sale of the vessel, Altobelli J made further orders requiring the vessel to be sold within 42 days, that is, on or before 18 October 2023.
H.No application has been filed to discharge the primary order made 18 October 2021 for the sale of the vessel.
I.Each of the parties agree and the Court accepts that N Company is a necessary party to the proceedings and ought to be joined as the second respondent to the proceedings.
J.The parties are on notice as to the range of orders available on determination on their outstanding dispute as to property adjustment notably ss 79 and 80, 90AE, 105, 106A and 114 of the Family Law Act 1975 (Cth) (“the Act”) and are otherwise directed to the courts power of enforcement pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
K.Each of the parties seek that the outstanding property dispute be listed for hearing as soon as possible. Each party wishes to cross-examine the single expert opining as to the value of vessel. At this time the husband will be the only witness in his case. The wife proposes to adduce evidence from the husband’s partner Ms P, currently resident in the United Kingdom, a prior accountant of the parties Mr H, and a former employee whose identity cannot be particularised today of a corporation of the husband and the wife.
THE COURT ORDERS THAT
4.N Company be joined as a party being the second respondent to the proceedings.
5.N Company file a notice of address for service in Australia in compliance with the Rules within 7 days.
6.Within 7 days the wife file an affidavit of the single expert who has opined and reported as to the value of the vessel.
7.The financial proceedings are listed for trial over 3 days in person in Sydney before Aldridge J commencing on 9 October 2023.
8.The Applicant and the Respondent must pay the setting down and hearing fees in equal amounts (or seek an exemption) no later than 4.00 pm 14 days prior to the trial.
9.On or before 29 September 2023 each of the parties are to file and serve:-
(a)an updating Financial Statement;
(b)a single consolidated trial affidavit relevant to their case;
(c)a single affidavit of each other witness they intend to rely upon at trial;
(d)an undertaking as to disclosure in accordance with r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
All affidavits are to comply with Part 8.3 of the Rules.
10.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
11.The parties are not permitted to file any Amended Initiating Application or Amended Response without leave of the trial Judge.
12.On or before 3 October 2023 the wife shall serve upon the husband a joint draft balance sheet to include all assets, liabilities, superannuation interests and financial resources as she understands to be suggested to be relevant and to include values as she understands are alleged by each party.
13.On or before 6 October 2023 the husband shall make any additions to the balance sheet as required to reflect his contra allegations and any values that are agreed (if applicable) and shall return that draft document to the wife.
14.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.
15.A final settled version of the joint balance sheet shall be filed and served by the wife on or before 9.00 am 9 October 2023.
16.On or before 9.00 am 9 October 2023 each of the husband and wife shall file and serve a case outline document and shall include:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(i)a summary of contributions claimed or contended for, and the percentage-based contributions contended for;
(ii)a summary of the relevant s 75(2) factors and the percentage-based adjustment contended for; and
(iii)any further factors relevant to determining a ‘just and equitable’ division of property.
THE COURT FURTHER ORDERS THAT
17.In the event either party wishes to cross-examine the single valuation expert as to the vessels at trial they are to provide 21 days’ notice in writing to the expert and to make all such arrangements as are necessary to ensure the expert can give oral evidence by way of Microsoft Teams at trial.
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 Davern & Davern (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
This proceeding was commenced by Ms Davern (“the wife”) on filing an Initiating Application on 23 December 2020 seeking orders as to property adjustment between her and Mr Davern (“the husband”). The husband filed a Response to the Initiating Application on 29 August 2023 seeking different orders as to property settlement.
The husband and the wife commenced cohabitation prior to their marriage in 1999 and separated in December 2018. They have four children, Ms W and Ms X, both in 1999, Mr Y, born 2004 and Z, born 2008. Ms W, Ms X and Mr Y are now adults, Z is currently 15 years of age.
On 18 October 2021, being a date when each of the parties were legally represented, consent orders were made for the husband to pay the wife spouse maintenance on a non-periodic basis, and on a defended basis orders were made for the husband to pay periodic maintenance to the wife and directing the parties to sell Vessel B within three months, such vessel being owned by N Company. N Company is an entity registered in Country AA, of which the husband is the sole director and the husband and the wife are equal shareholders.
As at the date of this determination, the vessel is not yet sold. It is currently moored in Country R. The husband resides on the vessel.
The property of the parties does not consist of any other real property.
The financial dispute was placed in the pool of matters awaiting allocation of trial dates on 10 February 2022. On 25 November 2022, that dispute was listed for a two-day trial in the Sydney rolling list, commencing 6 March 2023.
On 31 December 2022, the husband filed an application in a proceeding seeking parenting orders in respect of Z. The filing of that application caused the property proceedings to be vacated from the allocated rolling list trial dates.
On 15 May 2023, consent final parenting orders were made providing, amongst other things, for the parents to share equal shared parental responsibility for Z and for Z to live with the wife in New South Wales. The consent orders further provided that Z would spend time with the husband outside Australia during his annual school holidays as agreed between the parties in writing, together with other specified orders as to Z spending time with the husband during 2024 and 2025. Significantly, the orders provided for the parties to undertake a family dispute resolution process in relation to any dispute regarding the interpretation, implementation or enforcement of the orders.
The proceedings were listed before me today, 8 September 2023, for case management and for allocation of final trial dates. They were also listed in a legacy call over of matters in the judicial pool before the Deputy Chief Justice to be conducted on 13 September 2023.
On 6 September 2023, notwithstanding there being no final relief as sought by the husband to vary the existing consent parenting orders made only three months ago, an application in a proceeding was filed in which the husband sought orders that “until the matter is heard and determined before the court” the wife be restrained from relocating Z from Sydney to Victoria and Z remain enrolled and attending BB School. He further sought orders as to disclosure of documents relevant to the parenting of Z.
The Application in a Proceeding filed by the husband came before a judicial registrar in chambers on 6 September 2023 without appearances on behalf of the parties. The judicial registrar dispensed with the requirement for the husband to file a certificate pursuant to s 60I(9) of the Act, directed that the husband file an Amended Response by 4.00 pm, 7 September 2023 and notice of risk. Further directions were made for the wife to file documents in reply and listing what was described as an interim matter for hearing before a senior judicial registrar in person in Sydney on 15 September 2023.
The husband was invited today at this hearing to withdraw his Application in a Proceeding filed 6 September 2023 upon the basis that:
a.He had not complied with the order made 15 May 2023 as to for the parties to undertake a family dispute resolution process in relation to any dispute regarding the interpretation, implementation or enforcement of those orders;
b.The application as filed had no utility, for the reasons set out later herein; and
c.The application was an abuse of process.
The husband did not accept the invitation to withdraw his Application in a Proceeding as filed.
The husband was invited to make submissions as to why the Application in a Proceeding ought not be heard and determined today. He made his submissions.
CONSIDERATION
The relief sought in the Application in a Proceeding seeks relief of a child-related character, pursuant to Part VII Division 12A of the Family Law Act 1975 (Cth) (“the Act”). The principles identified in s 69ZN(1) of the Act mandate that in the conduct of child-related proceedings, the court must, as its first principle in determining the conduct of the proceedings themselves, consider the needs of the child and the impact that the conduct of the proceedings may have on the child; secondly, that the court is to actively direct, control and manage the conduct of the proceeding; and thirdly, that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible. This determination applies each of these objectives.
The general duties of the court in conducting child-related proceedings are identified in s 69ZQ of the Act. They include a capacity to decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily and a capacity to deal with as many aspects of the matter as it can on a single occasion. This determination progresses that duty.
By way of s 69ZR of the Act, the court has power to make determinations, findings and orders at any stage of proceedings.
In this matter, as raised by way of exchange with the husband today, the final orders made less than three months ago as to the equal sharing of parental responsibility and the geographical location in which Z is to live with the wife, in effect and in reality, regulates the aspect of the parenting of Z that the husband seeks to progress by way of his Application in a Proceeding filed 6 September 2023.
It is the husband’s case that the wife has given him four weeks’ notice of her proposal to relocate Z to Victoria and will not communicate with him. He says that is why he has filed the Application in a Proceeding so as to minimise any damage or harm to Z should he be relocated by the wife, contrary to and in potential contravention of, the existing consent orders as recently made.
The court has made it clear to each of the parties today that there is no utility in making an injunctive order prohibiting a parent from not complying with its orders. To seek an injunctive orders in anticipation of a failure to comply with a final parenting orders so as to ensure that the final order is subject of compliance is both a nonsense and occasions an abuse of process.
It has been made clear to the wife today that in the event she proposes to seek a variation of any such final parenting orders, the process by way of such variation is:
(a)Firstly, to undertake and complete the family dispute resolution process as mandated by the orders made 15 May 2023, including by way of compliance with s 60I of the Act; and thereafter
(b)In the event the dispute as to, or the process of variation of, the consensually orders made on 15 May 2023 by primary dispute resolution is unsuccessful, any process as to the further regulation of the parenting of Z ought to be progresses by the filing of an initiating application or an amendment thereto in compliance with the rules.
So as to progress the mandatory principles applicable related to child-related proceedings as identified earlier in these reasons and in exercising the general duties of the court in the conduct of those proceedings, orders will be made that:
(a)the application in a proceeding of the husband filed 6 September 2023 will be dismissed;
(b)the orders made by a judicial registrar in chambers on 6 September 2023 discharged;
(c)the listing of the matter before the Deputy Chief Justice on 13 September 2023 vacated;
(d)the listing of the matter before a senior judicial registrar for hearing in Sydney in person on 15 September 2023 vacated; and
(e)the property matter be listed for trial directions will be listed for final hearing over three days in person in Sydney before Aldridge J commencing on 9 October 2023.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 13 September 2023
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