Garwood & Shipton (No 13)
[2024] FedCFamC1F 682
•8 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garwood & Shipton (No 13) [2024] FedCFamC1F 682
File number(s): ADC 4995 of 2018 Judgment of: KARI J Date of judgment: 8 October 2024 Catchwords: FAMILY LAW – PROPERTY – De facto relationship – Threshold issue – Where the applicant sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed – Where the respondent asserts she is impecunious – Where the applicant submits there is no utility in seeking a declaration that a de facto relationship existed in circumstances where there is unlikely to be any orders for the adjustment of property between the parties – Where all extant applications in respect of property are dismissed by consent and the proceedings are finalised Legislation: Family Law Act 1975 (Cth) s 90RD) Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 8 October 2024 Place: Adelaide Counsel for the Applicant: Ms O’Connor SC Solicitor for the Applicant: Mills Oakley Counsel for the Respondent: Ms Hume Solicitor for the Respondent: Angela Ferdinandy Pty Ltd ORDERS
ADC 4995 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARWOOD
Applicant
AND: MS SHIPTON
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
8 OCTOBER 2024
UPON NOTING:
A.The Respondent mother remains obligated to pay the Applicant father's costs in the sum of $16,000 pursuant to Orders made by the Honourable Justice Kari on 17 September 2024.
B.The Respondent mother remains obligated to pay the Applicant father's costs in the sum of $16,000 pursuant to Orders made by the Full Court of the Federal Circuit and Family Court of Australia on 14 May 2024.
C.This Order is predicated upon the discharge of the Order made by Justice Tree on 5 August 2024.
BY CONSENT IT IS ORDERED ON A FINAL BASIS:
1.That all extant applications for final orders including but not limited to competing applications for declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) and otherwise in respect of property matters be dismissed.
2.That all extant interlocutory applications do be dismissed and all hearing dates do be vacated.
3.That all interlocutory orders made in these proceedings ADC4995/2018 save and except Order 1 made on 17 September 2024 be discharged.
4.That within 7 days of these Orders being made the solicitors for the parties will provide joint correspondence to the chambers of the Honourable Justice Tree seeking the discharge of the Orders made on 5 August 2024 in the file numbered ADC4460/2023.
5.That the dates for the final hearing in this matter do be vacated.
6.That save for where otherwise noted herein, the parties do pay their own costs associated with these proceedings.
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 the pseudonym Garwood & Shipton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These proceedings come before the Court today with respect to the balance of matters that remain outstanding in these proceedings.
On 27 September 2024, I made orders by consent finalising the parenting proceedings between the parties.
The other aspect of the proceedings, which is still before the Court, relates to the parties' competing applications for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth). In that sense, the applicant seeks a declaration that a de facto relationship existed between the parties, whereas the respondent seeks a declaration that a de facto relationship never existed between the parties. It is the applicant's position that if a declaration is made, then that declaration is the necessary precursor to him seeking orders for the adjustment of property between the parties.
BACKGROUND
The proceedings have had a very significant history before the Court. Indeed, a final hearing commenced on 5 September 2022, and proceeded for approximately 12 sitting days. The proceedings have not been able to be finalised as yet for a range of reasons that have resulted in delay, including interlocutory proceedings together with appellate proceedings. The proceedings were listed to conclude by way of final hearing in the week commencing 18 November 2024, with the proceedings listed for an additional three weeks' duration.
There were significant outstanding matters to be dealt with as a precursor to the resumption of the final hearing, indeed, today's hearing was listed for the Court to deal with the range of extant interlocutory applications. The parties, however, to their credit, with the assistance of their legal representatives, have come to a negotiated agreement. As I said, they have resolved their parenting proceedings and orders were made on 27 September 2024 in that regard. That then leaves the threshold jurisdiction question in relation to the existence or otherwise of a de facto relationship.
DISCUSSION
The parties today have presented the Court with a draft minute of order in which they seek to finalise that aspect of their proceedings. They do so on the basis, from the applicant's perspective, that he considers that there is little utility to proceeding with his application for a declaration that a de facto relationship existed in circumstances where he understands the respondent is impecunious as a result of recent events that have affected her financial circumstances. In particular, the liquidation and sale of her group of companies. It is for this reason that the applicant tells the Court that he no longer seeks a declaration that a de facto relationship existed between the parties.
The applicant does not resile from his assertion that a de facto relationship existed, however, he says that he does not pursue that application because there would be no utility in doing so in circumstances where there is unlikely to be any orders for the adjustment of property between the parties.
For the respondent's part, she maintains her position that she denies that the parties were in a de facto relationship.
Whatever the case may be, the Court has not made any findings in relation to the existence or otherwise of a de facto relationship between the parties. Indeed, that was the question the Court was to determine when the trial ultimately concluded.
The parties are to be commended for resolving the proceedings in a pragmatic fashion, despite the significant acrimony, animosity and the extraordinary costs that they have both incurred in pursuing this litigation.
I am conscious that there are a range of extant costs orders in these proceedings. When I say these proceedings, I say the current proceedings bearing file number ADC4995/2018.
I am mindful, however, that there are two other separate proceedings with different file numbers in relation to these parties.
The first relates to appellate proceedings, which bear a file number NAA332/2023. I am mindful that a costs order was made in those appellate proceedings and the parties, as recorded in the notations to these orders, do not intend that these orders will disrupt the costs orders made in those appellate proceedings.
Additionally, there is a separate proceeding involving these parties that was heard by Tree J. Those proceedings bear the file number ADC4460/2023. Again, these orders are not intended and nor do they disrupt the orders made in those separate proceedings. The parties, however, have agreed that they will mutually invite the Court in those separate proceedings to discharge orders made by Tree J on 5 August 2024.
So far as interlocutory orders made in these proceedings, a costs order was made by me on 17 September 2024. It is the parties' mutual intention that this costs order will remain in full force and effect.
Accordingly, an amendment has been made to the draft minute of order provided by the parties to the Court today to ensure that that costs order made on 17 September 2024 in these proceedings remains in full force and effect.
For all of those reasons, I now make orders finalising the extant proceedings, between the parties in accordance with the amended draft minute of order as signed by me.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 16 October 2024
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