FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Filipovic & Filipovic (No 3) [2024] FedCFamC2F 249
File number(s): MLC 13771 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 27 February 2024 Catchwords: FAMILY LAW – respondents late filed material – whether respondents should be permitted to rely upon late filed material – whether respondents should be heard at all – whether the application should proceed as undefended – what is an undefended hearing – whether interim property settlement orders should be made – whether orders should be made for the provision of documents and information – ability of directors of a company to obtain documents and information of the company for the purpose of Family Law act 1975 proceedings. Legislation: Corporations Act 2001 (Cth) s 198F, s 290 and s 1303
Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) s 79 and s 80
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 189, s 190, s 191, s 192
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04, r 1.31, r 1.33, r 1.34 r 2.4, r 10.27
Cases cited: Keskin & Keskin and Anor (2019) FLC 93-932
Medical Training and Development Pty Ltd [2021] NSWSC 981
Morgan & Valverde (2020) FLC 94-100
Saso & Saso [2023] FedCFamC1A 65
Sharpe v Grobbel [2017] NSWSC 1065
Singam & Moffrey (2015) FLC 93-641
Strahan & Strahan(interim Property Orders) (2011) FLC 93-466
Zane & Allan (2008) FLC 93-378
Division: Division 2 Family Law Number of paragraphs: 104 Date of last submission/s: 19 February 2024 Date of hearing: 19 February 2024 Place: Melbourne Counsel for the Applicant: Mr North SC Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the First Respondent: Ms Matson Solicitor for the First Respondent: Kenna Teasdale Lawyers Counsel for the Second, Third and Fourth Respondents: Mr Gates Solicitor for the Second, Third and Fourth Respondents: KHQ Lawyers ORDERS
MLC 13771 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FILIPOVIC
Applicant
AND: MR FILIPOVIC
First Respondent
MR B FILIPOVIC
Second Respondent
C PTY LTD (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.For the purpose of, and in, these orders the Applicant, Ms Filipovic, is referred to as ‘the Wife’, the First Respondent, Mr Filipovic, is referred to as ‘the Husband’, the Second Respondent, Mr B Filipovic, is referred to as the ‘Brother’ and the Third Respondent, C Pty Ltd and the Fourth Respondent, D Pty Ltd are collectively referred to as ‘the Companies’.
2.Unless the documents and information described thereafter (‘the required documents and/or information’) has already been;
(i)disclosed by the Husband or any of the Brother and the Companies; or
(ii)provided to the Court on subpoena and released to the parties for inspection and copying; or
(iii)an item or aspect of the required documents and/or information does not exist; then on or before 30…
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- Filipovic & Filipovic (No 3) [2024] FedCFamC2F 249
- Case
- [2024] FedCFamC2F 249
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the respondents should be permitted to rely on late-filed material, whether they should be heard at all, and what constituted an undefended hearing in this context. Furthermore, the court had to determine whether interim property settlement orders should be made and whether orders should be made for the provision of documents and information, including the ability of directors of a company to obtain documents for Family Law Act proceedings.
The court found that the late-filed material should be considered due to exceptional circumstances, but the respondents were not to be heard on the matter. The court defined an undefended hearing as one where the respondent does not actively contest the application but may still file a response. The court granted interim property settlement orders for the sale of a property, directing the application of the net proceeds towards the parties' settlement. Additionally, the court ordered specific financial disclosures from the respondents, setting strict deadlines for compliance.
In summary, the court's decision provided clarity on the handling of late-filed material and the parameters of an undefended hearing, while also addressing the substantive issues of financial disclosure and interim property settlement. The orders mandated the provision of detailed financial information and outlined specific procedures for the sale of a property, ensuring a transparent and equitable process for both parties.
Orders
Orders of the court
MLC 13771 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS FILIPOVIC
Applicant
AND:
MR FILIPOVIC
First Respondent
MR B FILIPOVIC
Second Respondent
C PTY LTD (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1. For the purpose of, and in, these orders the Applicant, Ms Filipovic, is referred to as ‘the Wife’, the First Respondent, Mr Filipovic, is referred to as ‘the Husband’, the Second Respondent, Mr B Filipovic, is referred to as the ‘Brother’ and the Third Respondent, C Pty Ltd and the Fourth Respondent, D Pty Ltd are collectively referred to as ‘the Companies’.
2. Unless the documents and information described thereafter (‘the required documents and/or information’) has already been;
(i) disclosed by the Husband or any of the Brother and the Companies; or
(ii) provided to the Court on subpoena and released to the parties for inspection and copying; or
(iii) an item or aspect of the required documents and/or information does not exist; then on or before 30 March 2024 (30 days) (‘the new disclosure date’);
the Brother and the Companies provide the following by way of financial disclosure:
(a) Documentary evidence showing the account into which the net proceeds of sale of $1,218,348 received by BB Lawyers on the settlement of E Street, Suburb F was deposited, and documentary evidence showing how these funds were subsequently applied.
(b) Bank account statements in relation to any mortgage/s secured against the property at K Street, Town L, including mortgage number … registered in 2009 for the period 1 January 2010 to date.
(c) Copies of all existing leases or recently lapsed leases associated with commercial properties to be valued as particularised at paragraph 4 of the Orders made by a Judicial Registrar on 16 August 2023.
(d) Copy statements for ANZ account ending #...13 in the name of G Pty Ltd for the period 3 October 2017 to 21 January 2021.
(e) Copy statements for account number …93 and account number …88 for the period 1 January 2018 to date, as identified in the ANZ account ending #...13 in the name of G Pty Ltd.
(f) Copy documents associated with the loan facility number …92 including bank statements associated with that facility for the period 1 January 2021 to date as identified in ANZ account ending #...13 in the name of G Pty Ltd.
(g) Documents and evidence of deposits into ANZ account ending …77 in the name of J Pty Ltd on 1 July 2022 and 15 July 2022 confirming the source from which those deposits were made.
(h) Copy statements for all share trading accounts in the name of the Second Respondent or held by him on behalf of another for the period 1 January 2018 to date including but not limited to any CC Investments accounts in his name.
(i) Copy documents providing a breakdown of beneficiary loans payable to “Filipovic Family” as identified in financial accounts for the B Filipovic Investment Trust for the financial years 30 June 2016 to 30 June 2022 inclusive.
(j) Copy tax returns and financial accounts for the B Filipovic Investment Trust for the financial years ended 30 June 2013 to 30 June 2015 inclusive.
(k) Copy tax returns from financial accounts for C Trust for the financial years ended 30 June 2015 to 30 June 2018 inclusive.
(l) Financial accounts and tax returns for G Trust for the financial year ended 30 June 2018.
(m) Copy bank account statements for accounts ending …50 and …42 for the period 1 January 2021 to date as identified in Westpac account ending …47 in the name of H Pty Ltd.
(n) Copy credit Card statements for account ending …84 in the name of Mr B Filipovic for the period 1 January 2017 to date.
3. That in the event that it is asserted that any of the required documents and/or information have already been disclosed, or already produced on subpoena and released or does not exist, then the party or parties so asserting, by the new disclosure date, file and serve and set out on short affidavit, in concise terms or table;
(a) when and how the required document or information as disclosed; and/or
(b) where in the documents released on subpoena the required document or information is; and/or
(c) which document or what aspect of the required documents and information does not exist and the circumstances of why that is.
4. That should the Husband decide to sell the block of land at O Street, Suburb F (O Street) then he:
(a) Inform the Applicant as to all developments including in respect to any proposed offers for sale before he accepts any offer to sell the property and provide the Applicant with an authority to liaise with the selling agent to enable her to be kept informed as to the proposed sale;
(b) That after payment of the outstanding Line of Credit debt secured by mortgage on that property, the net sale proceeds of O Street be applied as follows:
(i) The sum of $65,000 be paid to the Husband as part property settlement; and
(ii) the sum of $268,000 be paid to the Wife as part property settlement; and
(iii) the balance be paid to an interest bearing account in the names of the Husband and Wife and held on trust for them by a solicitor agreed between the Husband and Wife, and failing agreement the Husband’s solicitors, pending agreement in writing between the Husband and Wife or further order of the Court.
5. Unless the documents and information described thereafter (‘the Husband’s required documents and/or information’) has already been;
(i) disclosed by the Husband or any of the Brother and the Companies; or
(ii) provided to the court on subpoena and released to the parties for inspection and copying; or
(iii) an item or aspect of the required documents and/or information does not exist; then on or before 30 March 2024 (30 days) (‘the new disclosure date’);
the Husband provide the following by way of financial disclosure:
(a) Details and documentary evidence of the total sales of $127,204 referred to in the business activity statement for AA Pty Ltd for the period 1 January 2023 to 31 March 2023.
(b) Details and documentary evidence of the source from which $96,800 was deposited into the bank account ending #...93 on 3 February 2023 and the purpose for which the deposit was made.
(c) In respect to any trust of which the First Respondent is an eligible beneficiary as to capital or income in accordance with Rule 6.06 (3) (f) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, copies of:
(i) copy of the trust deed or any amending deed thereof;
(ii) A copy of taxation returns since 1 July 2018 to date;
(iii) A copy of financial statements since 1 July 2018 to date;
(iv) A copy of bank account statements associated with any such trust for the period 1 July 2018 to date.
(d) Income Tax Returns and Notices of Assessment for the financial years ending 30 June 2010 to 30 June 2017 inclusive.
6. That in the event that it is asserted that any of the Husband’s required documents and/or information, has or have, already been disclosed, or already produced on subpoena or does not exist then the party or parties so asserting, by the new disclosure date, file and serve and set out on short affidavit, in concise terms or table;
(a) when and how the required document or information as disclosed; and/or
(b) where in the documents released on subpoena the required document or information is; and/or
(c) which document or what aspect of the required documents and information does not exist and the circumstances of why that is.
7. That the parties organise and participate in a private mediation in the month of June 2024.
8. The parties are at liberty to file and serve a further short written submission, not exceeding 5 pages, as to costs of the Wife’s application in a proceeding served 13 November 2023, and in the event of there having been a relevant offer in writing, a copy of that offer, in accordance with the following timetable:
(a) The Wife to file and serve no later than 7 days after these orders; and
(b) The Husband, the Brother and the Companies file and serve no later than 14 days after these orders.
9. The Wife’s application in a proceeding served 13 November 2023 be otherwise dismissed.
10. The matter be adjourned to a date to be fixed before a Judicial Registrar in July 2024 for Mention.
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.
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
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