Falkner & Candle (No 3)
[2022] FedCFamC1F 700
Federal Circuit and Family Court of Australia
(DIVISION 1)
Falkner & Candle (No 3) [2022] FedCFamC1F 700
File number(s): PAC 623 of 2018 Judgment of: CAMPTON J Date of judgment: 25 August 2022 Catchwords: FAMILY LAW – FINAL PROPERTY – Orders made by consent. Legislation: Family Law Act 1975 s 79 Cases cited: Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 22 – 25 August 2022 Place: Parramatta Counsel for the Applicant: Mr Grew Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Taylor Solicitor for the Respondent: James Noble Law ORDERS
PAC 623 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FALKNER
Applicant
AND: MR CANDLE
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
25 August 2022
THE COURT ORDERS THAT:
1.By consent, orders are made in accordance with Court Exhibit 4.
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 Falkner & Candle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are substantive property proceedings commenced by way of the wife filing an Initiating Application on 15 February 2018 seeking orders for property adjustment pursuant to s 79 of the Family Law Act1975 (Cth) (“the Act”). The husband appears in these proceedings by way of his litigation guardian.
The parties commenced cohabitation in 2003, married in 2008 and finally separated in February 2017.
An important piece of property of the parties was their interests in a corporation, C Pty Ltd, which traded as F Company throughout the course of their relationship.
The proceedings were determined by way of orders of Foster J made on 29 April 2021 following a defended hearing conducted in December 2020 and April 2021. The husband via his litigation guardian successfully appealed those orders to the Full Court of this Court on
23 December 2021, hence the proceedings were remitted for hearing before me.
This remitted trial commenced four days ago on 22 August 2022. All of the evidence in the trial has concluded and the trial proceedings had reached the stage of submissions. To the credit of the parties, they engaged in what I expect would have been a lengthy and difficult process of negotiation throughout the course of the trial, and, in order to get on with their lives, successfully achieved a compromise of the litigation on commercial terms that they could each reasonably tolerate.
At the commencement of the hearing before me, the parties’ legal representatives prepared a joint balance sheet which was marked as Court Exhibit 2. Their recorded contentions as to the identity of the pool of property available for adjustment were disparate: the applicant wife asserting that the total value of the superannuation and non-superannuation property of the parties was $4,989,751 and the respondent husband, by way of his case guardian, asserting the value of that same pool was $8,891,649.
The parties’ affidavit evidence as to their respective roles played throughout the course of their relationship was the subject of challenge at trial. Albeit that I was yet to hear submissions, to my mind, a number of these challenges were likely to have been successfully.
The cross-examination of the parties and of the single forensic accounting expert,
Mr Y, led the parties sensibly to a negotiated position as to value of the property pool that they considered appropriate to take into account for the purposes of achieving their compromise. Their amended balance sheet was marked as Court Exhibit 3. Importantly the parties have “drawn a line in the sand” from the determinations made by Foster J upon the first hearing of the proceedings, in circumstances where his Honour’s orders of 29 April 2021 were implemented by them and they had thereafter somewhat progressed with their lives, save as to how to deal with the updated evidence as to the value of the wife’s interests in C Pty Ltd and their respective superannuation entitlements.
I am satisfied that the requirements identified by the High Court in Stanford v Stanford (2012) 247 CLR 108 have been met in that it is just and equitable to engage in a further property adjustment process pursuant to s 79 of the Act, having regard to:
(a)The length of the parties’ relationship;
(b)The myriad of contributions made by each of them to their property that may not have been reflected in their legal interests in that property;
(c)Their relationship having broken down and them now living apart; and
(d)By reason of the relief sought by each party in the proceedings before me confirming that an adjustment of property in favour of the husband was appropriate.
During the hearing before me, there was significant exchange as to whether the wife had remained silent and hence failed to disclose by way of omission, the value of the “loan trail book” owned by C Pty Ltd in the process of obtaining Mr Y’s expert opinion as to the value of the business for the purpose of the hearing before Foster J. I was yet to receive submissions on that subject matter. The evidence given on the third day of the hearing before me identified, at least to my mind and without coming to a concluded position, where that omission or misidentification may have originated and who had then maintained it. I make no findings as to each of those particular matters.
I am satisfied upon a review of the documents tendered into evidence that the relevant superannuation trustee has received procedural fairness as to the terms of the proposed superannuation splitting order sought by the parties.
Where parties are well represented by experienced solicitors and counsel, and the Court is advised by those representatives that the proposed compromise represents a just and equitable outcome, it is often considered more than sufficient for the Court to be satisfied as to the justice and equity in making such proposed consent orders. I receive comfort from that particular circumstance.
Having regard to the evidence that I have heard over the past three days of this trial, I am satisfied that it is just and equitable for these parties to engage in a commercial resolution of their financial affairs, so that they can get on comfortably with each of their lives. Cast against that background, I am further comforted by some of the exchanges that I observed between the parties and the litigation guardian during the course of the trial. Those exchanges illustrated that some goodwill and empathy continues to exist between the participants to these proceedings.
By consent, I make orders in accordance with Court Exhibit 4. What remains is for me to congratulate the parties and their legal representatives on achieving a very sensible resolution of this matter.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 13 September 2022
0
1
0