FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Goey & Goey [2022] FedCFamC1F 48
File number(s): ADC 652 of 2018 Judgment of: BERMAN J Date of judgment: 9 February 2022 Catchwords: FAMILY LAW – ORDERS – Variation – Where final orders were made – Where both parties seek a variation to the final orders – Where the husband considers the final orders should be set aside on the basis of impracticability – Where the wife considers the final orders should be set aside on the basis of a miscarriage of justice – Where the wife was to retain a certain property as part of the final settlement – Where the final orders are silent on the transfer of the husband’s interest in that property to the wife – Where the wife seeks the transfer of the husband’s interest in the property on an interim basis – Where the husband opposes the transfer due to another property not yet being sold – Where the interim application cannot be severed from the substantive orders sought – Where it is not possible to rectify the final orders on an interim basis – Interim application dismissed. Legislation: Family Law Act 1975 (Cth) ss 79A(1)(a), 79A(1)(b), 79A(1A) Cases cited: Demeny & Ogden [2021] FedCFamC1A 21
La Rocca & La Rocca (1991) FLC 92-222
Public Trustee (as executor of the estate of the late Gilbert) v Gilbert (1991) FLC 92-211
Rohde & Rohde (1984) FLC 91-592
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 20 and 21 December 2021 Place: Darwin Counsel for the Applicant: Mr Richards Solicitor for the Applicant: David Burrell & Co. Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Clelands Lawyers Adelaide Pty Ltd ORDERS
ADC 652 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GOEY
Applicant
AND: MS GOEY
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
9 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The interim application as appears in the Response to Initiating Application filed 14 December 2021 is dismissed.
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 Goey & Goey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Initiating Application filed 15 October 2021, Mr Goey (“the husband”) seeks to set…
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- Case
- [2022] FedCFamC1F 48
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CaseChat Overview and Summary
Goey & Goey involved the wife seeking interim orders to transfer the husband’s interest in the Suburb R property, which was valued at $1,000,000. The wife argued that despite the final order made by consent, which intended to transfer the Suburb R property to her, it did not reflect the intended outcome. The husband, on the other hand, sought to set aside or vary the final order. The proceedings were marked by a high level of conflict and allegations of property disbursal and transfer by both parties. The case was before the Full Court of the Family Court of Australia.
The legal issues before the court involved interpreting the final order and determining whether the interim orders sought by the wife were justified. The court had to consider whether the final order’s intended effect differed from its actual effect and whether the interim orders could be granted without affecting the husband’s application for substantive relief. Additionally, the court needed to address whether the wife’s interim application could be considered independently of her substantive orders.
The Full Court found that despite the intended outcome of the final order, the husband’s Initiating Application seeking to set aside or vary the final order would likely result in a stay of the operation of any interim orders until the substantive relief application was determined. The court also noted that the wife’s interim application could not be severed from her substantive orders without determining the source of power to do so. The court concluded that the parties should resolve their differences, given the prolonged litigation and increasing costs. Therefore, the interim orders sought by the wife were dismissed.
The court's final order dismissed the wife’s interim application and affirmed that the interim orders sought by the wife would not be granted. The court emphasized the need for the parties to resolve their disputes, considering the extensive duration of the litigation and its potential impact on their net property.
The legal issues before the court involved interpreting the final order and determining whether the interim orders sought by the wife were justified. The court had to consider whether the final order’s intended effect differed from its actual effect and whether the interim orders could be granted without affecting the husband’s application for substantive relief. Additionally, the court needed to address whether the wife’s interim application could be considered independently of her substantive orders.
The Full Court found that despite the intended outcome of the final order, the husband’s Initiating Application seeking to set aside or vary the final order would likely result in a stay of the operation of any interim orders until the substantive relief application was determined. The court also noted that the wife’s interim application could not be severed from her substantive orders without determining the source of power to do so. The court concluded that the parties should resolve their differences, given the prolonged litigation and increasing costs. Therefore, the interim orders sought by the wife were dismissed.
The court's final order dismissed the wife’s interim application and affirmed that the interim orders sought by the wife would not be granted. The court emphasized the need for the parties to resolve their disputes, considering the extensive duration of the litigation and its potential impact on their net property.
Orders
Orders of the court
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Background
Background to the litigation
For reasons that will be discussed, the interim proceedings focused on the order sought by the wife for the transfer of the husband’s interest in the property situate at T Street, Suburb R, NSW (“the Suburb R property”). To give context to the interim proceedings, it is necessary to consider the background to the proceedings and in particular the final order.BACKGROUND The parties met in 1975. The husband came to Australia in 1978 and after completing his secondary school education entered medical school in 1980 and ultimately graduated with a degree in medicine. The parties were married in 1987 and separated on or about July 2017. The parties were married for over thirty years and there are three adult children of the relationship. The husband worked as a health professional and provided financial support for the family. The wife provided primary care for the children and it is not controversial that she made significant non-financial contributions in her capacity as a homemaker. The proceedings were complex and the conflict between the parties was high. There were allegations made by each of the parties that property had been disbursed, transferred or disposed of by the other. The husband also asserted that the wife held property in Country G. During the course of the litigation, there remained an inability to agree the value of any interest held by the wife in property situate in Country G. A concern of the parties and of the Court was that the legal fees that were likely to be generated by the ongoing and unrelenting litigation would have represented a significant proportion of the net property of the parties.THE FINAL ORDER The final order was made by consent following nearly four days of evidence taken during the proceedings. The construct of the final order is to set out and identify the property of each of the parties, in particular the Suburb R property valued at $1,000,000, and the wife’s property in Country G (“the Country G property”) with an estimate of $550,000 but with a note that the Country G property was to be sold. At the time of making the final order, there was agreement that the gross total property of the parties was valued at $8,015,000, with gross total liabilities of $5,036,502. Net assets were in the sum of $2,929,088, with the value being attributed to the husband and wife’s entitlement in their self-managed superannuation fund (“SMSF”) as at 30 June 2018 of $1,602,038. Notation B to the orders is in the following terms:B.The parties agree that this Order has the effect of making a 65/35 split of the above non-superannuation asset pool and an equal division of the superannuation entitlements of the parties. By way of example, notation C sets out the property to be retained by each of the parties which would provide for the husband to retain $952,098 and the wife to retain $1,926,990, principally comprising the Suburb R property at $1,000,000, a small holding of shares at $35,000 and the former matrimonial home at S Street, Suburb L, SA valued at $1,400,000, in the total sum of $2,435,000.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
At [35] of Demeny, the Full Court also considered the approach adopted by Kent J in Ullrich & Kraft [2014] FamCA 266 where his Honour “found that a miscarriage of justice ‘occurred in the judicial process given the extent of the difference between the intended effect of the orders and their actual effect.’” CONCLUSION There is agreement that the Suburb R property was intended to be transferred to the wife but even if a variation to the final order was made pursuant to s 79A(1A) of the Act, the orders sought in the husband’s Initiating Application would likely invite a stay of the operation until such time as the husband’s application for substantive relief pursuant to s 79A has been determined. Similarly, the wife’s interim application cannot be severed from the substantive orders that she seeks in her Response until the source of power to do so has been determined. The obvious way forward is for the parties to put aside their differences and to resolve the matter, noting that the litigation has been on foot now for three years and the ever increasing cost of litigation may well result in a pyrrhic outcome for the parties. Accordingly, in circumstances where each of the parties seek to set aside or vary the final order pursuant to s 79A of the Act, it is not possible to rectify the orders on an interim basis. For these reasons, the interim orders sought by the wife in her Response will be dismissed. I make the order as appears at the commencement of these reasons.
Ratio Decidendi
Legal Principle Established
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