Featherstone & Neibert
[2024] FedCFamC2F 1279
•2 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Featherstone & Neibert [2024] FedCFamC2F 1279
File number: CRC 116 of 2024 Judgment of: JUDGE BLAKE Date of judgment: 2 September 2024 Catchwords: FAMILY LAW – Application to review orders of Judicial Registrar. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.05(e)(ii), 12.06, Ch 6, Pt 14.3. Division: Division 2 Family Law Number of paragraphs: 29 Date of hearing: 2 September 2024 Place: Melbourne via Microsoft Teams Solicitor for the Applicant: Self-represented Litigant Counsel for the Respondent: Mr Priestley Solicitor for the Respondent: MBT Lawyers ORDERS
CRC 116 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NEIBERT
Applicant
AND: MS FEATHERSTONE
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
2 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Within 28 days of the date of these Orders, the Wife disclose to the Husband a copy of the receipt of disbursement of funds, for each and every payment of $5000 or more, that has taken place in respect of the Wife in any other court of law, or by any insurance company, or by any lottery or gambling entity, or by any other person or entity:
(a)all documentation demonstrating when and where those funds were utilised, spent or invested; and
(b)all documentation demonstrating where any remaining funds from these windfalls are held.
2.Within 28 days of the date of these Orders, the Wife file and serve an affidavit of disclosure that:
(a)addresses each of the categories of documents set out in proposed orders 4(a) – (j) of the Husband’s Application for Review filed 11 August 2024 (‘Application for Review’); and
(b)sets out in respect of each category, whether she has provided disclosure, or alternatively whether such documents exist, or whether she has such documents within her possession.
3.Within 28 days of the date of these Orders, the parties undertake a valuation of the Wife's business ‘stock in hand’ to determine the value of current assets under control of the Wife, currently stored at and trading from the Town C property owned by D Property Trust, and at any location. In respect of this order:
(a)the parties are to agree to a valuer within seven days;
(b)if the parties are unable to reach agreement as to the valuer, the Husband is to nominate three valuers and the Wife is to select one from the list provided by the Husband; and
(c)the parties are to share the cost of the valuation.
4.Within 28 days of the date of these Orders, the parties complete a valuation of all household goods, chattels and furnishings of the Town C household. In respect of this order:
(a)the parties are to agree to a valuer within seven days;
(b)if the parties are unable to reach agreement as to the valuer, the Husband is to nominate three valuers and the Wife is to select one from the list provided by the Husband; and
(c)the parties are to share the cost of the valuation.
5.The Application for Review otherwise be dismissed.
Costs
6.On or before 16 September 2024 at 5:00 pm, the Respondent file and serve any Application for costs, accompanied by:
(a)an affidavit in support not exceeding 10 pages; and
(b)a written outline of submissions not exceeding 5 pages.
7.On or before 30 September 2024 at 5:00 pm, the Applicant file and serve in reply:
(a)any affidavit not exceeding 10 pages; and
(b)a written outline of submissions not exceeding 5 pages.
AND THE COURT NOTES THAT:
A.Order 2 above was made with the consent of the Wife and at the urging of the Court in order to limit any future disputes about disclosure. The order was not made because the Court has any concern that the Wife was not complying with her disclosure obligations.
B.Proposed orders 3 – 7 and 9-10 of the Husbands ‘Response to Application in a Proceeding’ filed 26 June 2024 have not been determined by a Registrar. The Court notes that the Registrar made no order dismissing the Response to Application in a Proceeding filed 26 June 2024. The issues contained in that document filed by the Husband remain issues to be resolved at an appropriately scheduled interim hearing.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (‘the Scheme’) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)JUDGE BLAKE
This is an application by the Husband to review all of the orders made by a Registrar of this Court on 24 July 2024. Those orders are largely procedural in nature and are set out below:
1.Within 72 hours, the Respondent shall provide to the Applicant’s solicitor the contact information including a telephone number for [Mr E].
2.The Applicant is granted liberty to seek that the proceedings be re-listed for procedural directions on 7 days’ notice to each other party, by contacting Chambers [email address omitted].
3.In conjunction with order 1 of the Orders dated 29 May 2024, by not later than 4.00pm on 26 July 2024, the Respondent shall nominate 1 of the Single Experts from the list already provided by the Applicant who is to undertake the valuation as ordered on 29 May 2024.
4.In the event the Respondent fails to nominate a Single Expert by 9.00am on 29 July 2024, the Applicant shall nominate the Single Expert.
5.Within a further 7 days, if a joint letter is not settled, both parties are to submit to Chambers (by email to [email address omitted]) a word version of their respective, proposed draft letter of instruction for the single expert regarding the valuation of the property pursuant to Rule 7.05(e)(ii) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
6.The costs of the Applicant of and incidental to the Directions Hearing on 24 July 2024, be reserved.
7.If the valuation is resolved and all outstanding disclosure has been provided, the parties are granted leave to make a joint request in Chambers (to [email omitted]) for the allocation of a Conciliation Conference with the joint request to include confirmation that they and the other party are satisfied that:
a.all documents required to be disclosed pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged; and
b. they have each filed and served an Undertaking as to Disclosure; and
c.that the parties have settled a joint balance sheet that will be relied upon at the Conciliation Conference once ordered.
Future Court Event – Directions Hearing
8.All outstanding applications are adjourned to 16 October 2024 at 2.30pm before Judicial Registrar [name omitted] for a directions hearing, by electronic hearing.
9.All parties are required to comply with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 prior to the next and all subsequent occasions.
10.Each party will be contacted by the Chambers of Judicial Registrar [name omitted] [email omitted] with the necessary information to attend the hearing, including if it is to be conducted electronically.
The Husband wants all of the orders made by the Registrar on 24 July 2024 discharged. In its place, he seeks a number of orders set out in his Application for Review filed 11 August 2024 (‘Application for Review’) as follows:
1.That all of the orders of Her Honour Judicial Registrar [name omitted] made 24 July 2024 be set aside.
Mediation (Family Dispute Resolution)
2.That within 10 days of this order the Respondent is to contact [F Centre] to arrange a Family Dispute Resolution and Mediation meeting.
3.That within seven (7) days of making arrangements for Mediation with [F Centre], the Respondent [Mr Neibert] shall contact the solicitor for the Applicant by email and advise the Applicant of the arrangements for Mediation under the following terms;
(a)that if either party is not legally represented as at the date that Mediation is to occur then neither party is to attend Mediation with legal representation, and
(b) that both parties be required to genuinely participate in Mediation, and
(c) that the Applicant shall bear the full costs of Mediation.
Disclosure
4.That within 21 days of order the Applicant [Ms Featherstone] is to provide the Respondent [Mr Neibert] with the following by way of disclosure;
(a)A copy of all Interim and Final Orders of Property proceedings, including Consent Orders (or by way of other Agreement), pertaining to all of [Ms Featherstone]’s previous marriages, including all Orders made in any and all Appellate proceedings, and
(b)A copy of the receipt of disbursement of funds from each and every Property proceeding that has taken place in respect of [Ms Featherstone] in the Federal Circuit Court of Australia, the Family Court of Australia and the Federal Circuit and Family Court of Australia, including by Orders by Consent (or by other Agreement);
(i)All documentation demonstrating when and where those funds were utilised, spent or invested.
(ii)All documentation demonstrating where any remaining funds from those assets are held, and
(c)A copy of the receipt of disbursement of funds for each and every payment of $5,000 or more that has taken place in respect of [Ms Featherstone] in any other court of law, or by any insurance company, or by any lottery or gambling entity, or by any other person or entity;
(i)All documentation demonstrating when and where those funds were utilised, spent or invested;
(ii)All documentation demonstrating where any remaining funds from those windfalls are held, and
(d)A copy of the Deeds to any and all real property and vehicles [Ms Featherstone] has a share in or ownership of (in any capacity), including any Trust Deeds and Company Trustee documents for properties that are held in Trust for the benefit of her Children, and
(e)A copy of the Sale Contracts or Documents of any and all real property and vehicles [Ms Featherstone] had a share in or ownership of (in any capacity), including any Trust Deeds and Company Trustee documents for properties that were held in Trust for the benefit of her or her Children;
(i) All documentation demonstrating when and where the funds from the Sale of those assets were utilised spent or invested.
(ii) All documentation demonstrating where any remaining funds from the Sale of those assets are held, and (f) A copy of any Shares or Investments [Ms Featherstone] has a share in or ownership of (in any capacity),
(f)A copy of any Shares or Investments [Ms Featherstone] has a share in or ownership of (in any capacity),including any Shares that are held in Trust for the benefit of her Children, and
(g)A copy of any Sale Contracts or Documents for any and all Shares or Investments [Ms Featherstone] had a share in or ownership of (in any capacity), including any Shares that were held in Trust for the benefit of her or her Children;
(i)All documentation demonstrating when and where the funds from the Sale of those assets were utilised, spent or invested.
(ii)All documentation demonstrating where any remaining funds from the Sale of those assets are held, and
(h)A copy of the statements for all Federal Government Income received by [Ms Featherstone] since [early] 2015, including but not limited to: Centrelink, Child Support, NDIS / NDIA, Medicare and Health Benefits, Disability Carer Income, and Disability Support Pension payments in respect of herself and/or any of her Children;
(i)All documentation demonstrating when and where the funds were utilised spent or invested.
(ii)All documentation demonstrating where any remaining funds are held, and
(i)A copy of the complete official Statements showing the full;
(i)Purchase History with full description of items purchased, and
(ii)Sales Income Statements with full description of items sold, and
(iii)Transaction Ledgers outlining precisely where money has come from and where it has been deposited, and
(j)A copy of the complete official Statements showing the full;
(i)Transaction Ledgers outlining precisely where money has come from and where it has been deposited;
noting that the Applicant is not to provide any form of doctored spreadsheet or fabricated documents as evidence of trading.
5.That the Applicant bear the full costs of subpoena and further Court attendance and Legal fees for all Parties in the event any item of disclosure is not provided in full within 28 days of order.
Valuation
6.That until otherwise determined by the Court the [D] Property Trust is determined by the Court to be an excluded asset for the purposes of these proceedings.
7.That the valuation of the “[D] Property Trust” property at [B Street, Town C] NSW be performed only after a determination has been made by a Judge or Justice of this Court as to whether or not the property is a legitimate subject of these proceedings.
8.That in the event that a Valuation of the “[D] Property Trust” property at [B Street, Town C] NSW is performed, all costs of Valuation and any other investigation in these proceedings be borne by the Applicant [Ms Featherstone] alone.
9.That within 28 days of order a complete valuation be performed of the Applicant’s business “stock on hand” to determine the value of Current Assets under control of the Applicant; currently stored at and trading from the [Town C] property owned by [D] Properties Trust; and at any other location:
(a)at the Applicant’s expense; and
(b)the valuer selected by the Respondent.
10.That within 28 days of order a complete valuation be performed of the [Town C] household goods, chattels and furnishings;
(a)at the Applicant’s expense; and
(b)the valuer selected by the Respondent.
11.That within 28 days of order the Applicant is to obtain three (3) separate valuations on the marital vehicle at the expense of the Applicant with the average valuation being determined to be the value of the marital vehicle.
12.That the Respondent is granted the right to challenge the valuation of the marital vehicle and seek his own valuation should he choose to do so.
Vacate Orders
13.That in the event the Applicant [Ms Featherstone] and her Children have not vacated the [Town C] Property with their personal possessions as at the date of this hearing;
(a)the Applicant and her Children are ordered to vacate the property at [Town C] within 14 days of this order, leaving behind all goods, chattels, property, assets and items purchased by the Respondent and/or “[D] Property Trust” and/or “[G Business]”.
Procedural Orders Sought
14.That all future proceedings in relation to the CRC116/2024 matter be presided over by a Judge or Justice of the Federal Circuit and Family Court of Australia.
15.That all future proceedings in relation to the CRC116/2024 matter be held by way of electronic hearing until Trial.
Costs Orders
16.That the Applicant is required to pay her own Legal costs in these proceedings.
17.That the Applicant is required to pay all Legal costs incurred to date and thereafter by all Respondents, including all [D] Properties Trust legal fees.
18.That within 14 days of order the Applicant is ordered to reimburse and pay;
(a)[D] Properties Trust the fixed sum of $20,400 for house rental, utility and internet costs payable, from the date of separation onward, and
(b)50% of all costs and debts owing in “[G Business]” to Respondent incurred from the company’s inception onward.
The Husband relied on a number of documents before me, including his Application for Review filed 11 August 2024 (‘Application for Review’), his outline of submissions, and each of the documents he identified in his outline of submissions. That includes but is not limited to the Response to an Application in a Proceeding he filed on 26 June 2024 (‘Response to an AIP’), the affidavit in support of the Response to an AIP filed on 28 June 2024, and two costs notices of the Wife he filed on 18 August 2024. The Wife relied variously on her Response to the Application for Review in which she sought that the Application for Review be dismissed, and her outline of argument of 26 August 2024. I have considered all of these documents and taken them into account.
I note that the Husband says he has a disability and for present purposes, I have taken that into account.
These are proceedings for review of a Registrar's decision. Pursuant to part 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), I am required to conduct the review as an original hearing. I have considered the material relied on by the parties. I have also had regard to the oral submissions from each of them, and the exchanges I had with each of them.
I note these proceedings were first filed by the Wife in March of this year, and that the Husband filed his response in May of this year. Proceedings are, therefore, relatively fresh in the context of proceedings in this Court. There have been two events before a Registrar up to this point. The first on 29 May 2024, and the second on 24 July 2024. On both of these occasions, the matter was listed before the Registrar for what was described as a procedural hearing. No interim hearing dates have been set down in order to determine interim issues arising between the parties. No trial directions have been made. It would appear the matter is some way away from trial.
It is necessary to deal with the following issues at the outset.
VALUATION OF THE B STREET, TOWN C PROPERTY
Before me, the Husband took issue with and, effectively, seeks the discharge of orders relating to the valuation of the property at B Street. An order to value the property was made by consent by the Judicial Registrar on 29 May 2024. Then, on 24 July 2024, the Registrar made Orders 3 to 5 (as set out above) to give effect to that order. These latter orders were not made by consent.
The order of 29 May 2024 was made by consent. The Husband had the opportunity to review it, but he did not do so and is now out of time. I do not propose to revisit this order despite him effectively asking me to do so today. I do not propose to discharge Orders 3 to 5 of the Orders of 24 July 2024, given that the orders are designed to give effect to Order 1 of the Orders of 29 May 2024.
I note that one of the reasons the Husband seeks to discharge Order 1 of 29 May 2024 is that he says he is not the owner of the property. He says that on one hand but on the other hand, presents to the Court that he has standing to seek an order that the Wife and her children vacate that property. He can't have it both ways.
Given the above, and given the valuation order is a standard order made at this stage of the proceedings, Orders 3 to 5 of the 24 July 2024 Orders are to stand.
THE HUSBAND’S RESPONSE TO AN APPLICATION IN A PROCEEDING
The Husband filed the Response to an AIP on 26 June 2024. The Wife says it was served on her on 28 June 2024. Despite its title, the document does not appear to be a response to any application or interlocutory application. It instead appears to seek a range of other orders, including several substantive interlocutory orders.
The Husband seeks by this Application for Review to have the Court now make, some, or all of the orders that he set out in the Response to an AIP.
Among the orders set out in the document dated 26 June 2024 that the Husband seeks to have the Court make now, are orders that the parties attend mediation privately, that the Wife pay for all costs of the mediation, that she reimburse him for costs relating to the home, that she vacate the property at B Street, and that any valuation of the B Street property only be undertaken after a determination by a Judge as to whether the property is a legitimate subject of these proceedings.
This is an application to review orders determined by a Registrar. In order to conduct a review of what the Registrar has done or not done, the issue must have been before the Registrar.
Here, it is not apparent that the Registrar has made any decision in relation to the various interim orders that the Husband seeks in his Response to an AIP. There is no order dismissing the Response to an AIP. There is no determination of, among other things, who has sole occupation of the property at B Street, whether the Wife should reimburse the Husband the amount for rent, and whether the Wife pay all debts owing to G Business. These matters remain live matters requiring determination at some stage. It is not appropriate that I review them now. I will make a notation to the effect that these issues remain outstanding and require listing.
Insofar as the Response to an AIP agitates procedural matters that are now agitated before me, I note that:
(a)for the reasons already given, I declined to vary the valuation order of 29 May 2024, given the application for review of that order was not brought in time and given it was made by consent;
(b)the parties are going to a settlement conference. The Registrar made orders for the parties to eventually attend a conciliation conference conducted by the Court once the issues of valuation and disclosure were resolved. The Husband, while seeking a mediation order, advances no argument as to why private mediation is to be preferred, or why the Wife should pay all costs of such private mediation. With respect, the Husband seeking these orders in this way would seem on their face to indicate an attempt by him to seek to intimidate the Wife or, at the very least, see her incur costs that she would not otherwise incur if the matter went to a conciliation conference before a Registrar; and
(c)the pool in this matter, based only on the submissions that I have heard, does not appear to be overly large, and it is understandable that the Registrar may have wished the parties to attend conciliation first, before significant interim hearing costs are incurred in relation to issues such as whether the B Street property should be excluded from the pool, or whether a sole occupation order should be made.
I agree with the course set by the Registrar and see no vice in it. I therefore decline to interfere with these orders made by the Registrar.
Turning briefly then to the other issues.
DISCLOSURE
In his Application for Review, the Husband sought disclosure of various documents. The answer in response given in submissions by Mr Priestley for the Wife was that the Wife would agree to provide documents in proposed order 4(c), but that the other categories of documents have either been provided or they are not in the Wife's possession. As I indicated during the hearing, I will make orders that the Wife produce documents falling within proposed order 4(c), and that she otherwise file an affidavit attesting to whether other documents set out in the proposed orders have been provided or whether they exist. I will make a notation to the orders that the Court has required the Wife to do this in order to efficiently manage the matter, and not because the Court is concerned the Wife has failed to disclose those documents, or is otherwise avoiding her disclosure obligations.
I do not propose to make a proposed order 5 of the Application for Review. It is premature to make that order in the circumstances. It is not at all clear that the issue was before the Registrar and is therefore, capable of being reviewed.
I have dealt with proposed orders 6 to 8 of the Application for Review and I rely on my earlier reasons.
As to proposed order 9 of the Application for Review, the Wife was agreeable to conducting the valuation foreshadowed there, provided that costs were shared between the parties and that the orders provided for a mechanism to appoint a valuer whereby the Wife would nominate three valuers and the Husband would pick one. These are standard orders and I will therefore, make order 9 in that form and I will, also, make order 10, given the submissions that I have heard in the same form.
As to orders 11 and 12, it does not appear these matters were before the Registrar, and I decline to make any order about it.
Proposed order 13 of the Application for Review is the order for vacation by the Wife and her children of the B Street property. For the reasons given earlier, this matter is yet to be determined and I will not be making any order about it today. It can be listed for determination by the Registrar at the appropriate time.
I note that the Husband sought either the discharge of various other procedural orders made by the Registrar and, also, sought that the Court make another set of procedural orders. Given the submissions I have heard, I'm not persuaded that I should make those orders given the way the matter has been case managed to date.
Finally, I note that the Husband also sought costs orders. I note, given the orders that I will make today, my preliminary view is that no order for costs should be made today, and the issue of costs should simply be reserved.
Notwithstanding the view above, at the conclusion of the Hearing before me, Mr Priestley for the Wife made an application for costs, requesting that any decision be considered in chambers. I will make orders for both parties to file material in relation to the Wife’s application.
I will otherwise make the orders and notations as I have set out above.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Blake. Associate:
Dated: 16 September 2024
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