Goodwin and Goodwin
[2018] FCCA 385
•19 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOODWIN & GOODWIN | [2018] FCCA 385 |
| Catchwords: FAMILY LAW – Property proceedings – case concerns farming family – application for adjournment in anticipation of amendment of claim and joinder of parties – proceedings on foot since August 2016 – competing applications fixed for trial on 22 & 23 February 2018 – trial dates allocated in early 2017 – after filing of trial affidavits wife applies to adjourn trial and join husband’s parents as parties – wife further seeks to file amended application alleging existence of constructive trust in respect of farming lands owned by husband’s parents – wife alleges she acted in response to representations made by husband’s parents in respect of transfer of farming land to her and the husband on the retirement of the parents – application for adjournment made fourteen days prior to date scheduled for trial – husband opposes application – balance of prejudice – case management principles – matters to be considered – matters relating to transfer of proceedings to Family Court. |
| Legislation: Family Law Act 1975, ss.3(2), 8(3), 39, 45, 50(1) Federal Circuit Court Rules 2001, rr.7.01; 7.03; 8.02; 11.01; 11.03; 11.04 |
| Cases cited: Rodda & Anor v Ian Rodda Pty Ltd & Anor [2015] SASC 95 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 |
| Applicant: | MS GOODWIN |
| Respondent: | MR GOODWIN |
| File Number: | ADC 3115 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 15 February 2018 |
| Date of Last Submission: | 15 February 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 19 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richards |
| Solicitors for the Applicant: | Duncan Basheer Hannon |
| Counsel for the Respondent: | Mr Dillon |
| Solicitors for the Respondent: | Combes & Co |
ORDERS
The trial dates of 22 and 23 February 2018 be vacated.
The husband and Mr and Mrs Goodwin Senior file any response and affidavit in support in respect of the joinder application within 28 days of today’s date.
The proceedings be fixed for further interlocutory hearing regarding the joinder application and whether the proceedings should be transferred to the Family Court of Australia at Adelaide and any other incidental matter on 3 May 2018 at 2:15pm (2 hours allowed).
The husband’s costs of this application and thrown away in respect of the adjourned trial be otherwise reserved.
IT IS NOTED that publication of this judgment under the pseudonym Goodwin & Goodwin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3115 of 2016
| MS GOODWIN |
Applicant
And
| MR GOODWIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for adjournment. It is opposed. It is not usual practice to provide extensive reasons in respect of such applications, particularly in this court, which is a high volume first instance court dealing with less complicated matters within Federal jurisdiction, particularly in family law.
However, this particular adjournment application is finely balanced and the implications of either granting the adjournment or refusing it will be serious both for the parties concerned and perhaps potentially so for others are concerned.
This implicit level of complexity is indicative of the fact that the litigation concerned in the case, which has precipitated this application for adjournment cannot be categorised as being simple. It is therefore questionable whether the proceedings concerned are in the appropriate court.
Background
The parties currently involved in the proceedings are Ms Goodwin “the wife” and Mr Goodwin “the husband”. The wife seeks the adjournment of the trial of the parties’ competing applications for matrimonial property settlement, which is fixed for two days and is scheduled to commence very shortly on 22 February 2018. The husband opposes the application.
The wife commenced these proceedings on 22 August 2016. She seeks the sale of the parties’ former matrimonial home, located at Property A, “the Property A farm” and the overall division of the parties matrimonial property 60/40 percent in her favour.
The wife is forty-one years of age and a (occupation omitted) by profession. She and Mr Goodwin married in (omitted) 2001 and finally separated in 2014. They are the parents of two children, aged fourteen and ten respectively. The children currently live week about with each of their parents.
The Property A farm consists not only of a dwelling but also a farm of (omitted) hectares. It has recently been valued at $785,000.00. It is the parties’ most significant asset, in value terms, by far. Otherwise, the parties own some plant and equipment and livestock.
Mr Goodwin has skills as a (occupation omitted). He was working as a (occupation omitted) when the parties commenced their relationship. However, Mr Goodwin grew up on the land. His parents, Mr and Mrs Goodwin are farmers, who farm various properties in the (omitted) of South Australia, including one proximate to the Property A farm. In the material filed in the proceedings to date, this nearby farm is referred to as “the Property A farm”.
During the early stages of the parties’ marriage, the husband began to work for his parents as a farmer, receiving a percentage of farming income derived from the sale of grain and sheep, produced on all the properties operated by him and his parents and also, I understand, his brother. Mr Goodwin has never received a regular wage from his work. Rather, it is his evidence that his income has varied according to the productivity of the agricultural season concerned.
The Property A farm was gifted to the parties by the paternal parents and is held by a trust – The Goodwin Family Trust. This gift was made in 2010. Mr Goodwin began to work the land in 2004. The parties built a home on the property, borrowing money from the wife’s parents to do so.
In her initial affidavit filed in support of her application, the wife deposed as follows:
“In 2004 the husband ceased his employment as a (occupation omitted) and went to work in the family farming business. The husband was not paid a salary but was to be paid 5% of the farming income from grain and sheep sales and share farming contracts.
The husband asked to be paid a salary but his parents would not agree to this. In effect the husband was not assured of any income at all and therefore we were to continue to rely on my (occupation omitted) income.
…
The husband told me that his income was “going back into the farm” and that would be our superannuation. I do not know where the husband’s income went or with any certainty the actual income the husband was earning.”[1]
[1] See affidavit of Ms Goodwin filed 19 August 2016 at [22], [23], [43]
It is now the wife’s case, in effect, that the expression going back into the farm referred to not only the Property A farm but also the farming properties operated by Mr and Mrs Goodwin Senior, including the Property A farm on which the husband has worked from time to time.
The parties’ competing applications have moved along in an unexceptional way since their institution, on the basis that they were a conventional property matter consisting of a pool of less than $1,000,000 involving only the spousal parties themselves. The major item of property being the Property A farm land, which was owned by an entity controlled only by the parties.
Accordingly, at now stage up until now has either party asserted that it is an unduly complicated matter or one involving difficult points of law. On this basis, the case was referred soon after it was instituted to a conciliation conference which was fixed for February 2017. This conference was unsuccessful. To their credit the parties were able to resolve parenting issues in respect of their children.
Following the failure of the conciliation conference, the matter was fixed for final hearing at the earliest date then available to the court which regrettably was 12 months away. Orders were made for the filing of trial affidavits in advance of the trial date. Otherwise, no intervening direction date was fixed.
Each party complied with the filing directions and lengthy affidavits were filed by both the husband and wife together with up-dating financial statements.[2] No other witnesses were anticipated. The valuation of the Property A farm was filed and this valuation appeared uncontroversial.
[2] The wife filed 18 January 2018. The husband filed 5 February 2018.
The current application
On 8 February 2018, a fortnight prior to the date scheduled for the trial to begin, the wife filed an application in a case in which she seeks the following orders:
·The trial of 22 & 23 February be vacated;
·Mr & Mrs Goodwin Senior and the corporate entity through which they operate their farming business be joined as parties to the current proceedings;
·More significantly, in the context of the current proceedings she seeks to amend her application to seek a declaration in equity that Mr & Mrs Goodwin Senior hold significant farming assets, particularly at Property A, on a constructive trust for her and the husband.
In support of this application, the wife has filed an affidavit in fairly brief terms which can be summarised as follows:
·The Property A farm consists of (omitted) acres of valuable arable land;
·The husband gave up his work as a (occupation omitted) in 2003, to work on the farm for his parents;
·At the time she was working as a (occupation omitted);
·It was conveyed to her and the husband by the husband’s parents, that the Property A farm would be transferred to her and the husband when the husband’s parents retired from the land;
·In consideration of the promise of the transfer of the Property A farm to her and the husband, Mr & Mrs Goodwin Senior expected the parties to make sacrifices and accommodate the highs and lows of farming income;
·The husband would receive 5% of the net profits of the farming enterprise conducted by Mr & Mrs Goodwin Senior, regardless of whether that profit share represented a fair and reasonable payment for his full-time work on the farm;
·Mr & Mrs Goodwin Senior indicated to the parties that they expected the wife to continue in part-time employment as a (occupation omitted) to support the family, so that Mr Goodwin could be freed up to work on the farm and in compensation for these efforts, the Property A farm would be transferred to them in due course;
·The husband’s income from the farm did not support the family, which was reliant on the wife’s financial contributions derived from her employment as a (occupation omitted);
·These representations made by Mr & Mrs Goodwin Senior were made frequently to the parties, both informally and during discussions with the husband’s parents’ accountants, in respect of succession planning regarding their various farming properties;
·This is the basis for the claim of constructive trust proposed by the wife, which involves Mr & Mrs Goodwin Senior.
In his trial affidavit, filed in anticipation of the 22 February trial, the husband has refuted the wife’s assertion that his income derived from farming activities was not sufficient to maintain the family. It is his case that, more often than not, it was. He has not as yet formally responded to the wife’s application in a case.
The husband’s position
The husband’s position is that the application for adjournment should be refused on the basis that the wife has left it too late to seek amendment to her application, which has the effect of pleading an entirely new cause of action.
As such, he contends that it would not be in the interests of justice to allow the adjournment which cannot be compensated for if granted, so far as he is concerned, by way of an award for costs in his favour. It is his case that he is prepared for trial and ready to meet the case originally mounted by the wife.
At this juncture, one significant factor needs to be emphasised. I am not dealing with the application for joinder at this stage. Mr & Mrs Goodwin Senior are aware of the application, but have not, as yet, formally responded to it. It is to be anticipated that they will rigorously oppose it.
The wife’s position
In these circumstances, it is the wife’s position that it is incumbent on the court to adjourn the trial, otherwise her application for joinder will be rendered otiose, which will occasion her significant injustice. It is her position that no personal omission attaches to her for the late filing of the application, which came about as a consequence of advice recently provided to her.
The wife’s application raises potentially complex issues of equity. It is conceded, on her part, that she is able to institute proceedings, against Mr & Mrs Goodwin Senior in the Supreme Court of South Australia in its equitable jurisdiction regardless of the outcome of the proceedings in this court.
The equitable principles potentially arising have been summarised by Nicholson J in Rodda & Anor v Ian Rodda Pty Ltd & Anor[3] This was also a case involving valuable farming land and alleged representations made by one farming generation to another.
[3] See Rodda & Anor v Ian Rodda Pty Ltd & Anor [2015] SASC 95
Nicholson J summarised the principles concerned under the rubric of proprietary estoppel by encouragement and resulting or constructive trusts. In order to advance her claim, the wife would require to establish the following:
·Mr & Mrs Goodwin Senior materially represented to her and the husband, through word or conduct, encouraging them in an expectation that they would acquire a proprietary interest in the Property A farm, in due course, if the husband worked upon it and the wife provided financial support as a (occupation omitted);
·She and the husband relied reasonably on this representational conduct and made arrangements as a consequence of it;
·Mr & Mrs Goodwin Senior have resiled from this expectation at least so far as she is concerned;
·She will suffer detriment as a consequence.
It is the wife’s contention however that, notwithstanding her possible remedies in the South Australian Supreme Court, this court has accrued jurisdiction to deal with her application and it is convenient that this aspect of her case be determined concurrently with her application for property settlement arising under Part VIII of the Family Law Act 1975.
The husband does not agree, asserting that it would be neither fair to him nor in the interests of justice to allow the wife to delay the proceedings under Part VIII, which necessarily involve only him and her and allow her to amend her application effectively at the death knell to include multiple parties and the potential ventilation of complex principles of equity, which will expose him to the risk of incurring significant costs.
Some legal principles
This court was inaugurated, pursuant to the provisions of the Federal Circuit Court of Australia Act 1999. Pursuant to section 8(3) of the Act, the court is a court of record and of law and equity.
The court’s objects – if you like, its modus operandi and ethos – are contained in section 3(2). The court is to operate as informally as possible and utilise streamlined procedures. It is also to encourage a full range of dispute resolution processes. In short, the court is directed to get through as much work as possible as quickly and cheaply as possible, encouraging parties to settle, wherever possible.
The Federal Magistrates Court (or Service), as it was then known, opened for business in 2000. The epithet Service was particularly evocative of the intention of the then Attorney-General. The court was intended to augment the work of the superior Federal Courts by easing the work-load of the Federal and Family Courts, by relieving those courts of less complicated cases so each could concentrate on matters of greater complexity, which by necessary implication were likely to take longer to hear.
The then Attorney-General, Mr Williams said as follows in the Second Reading Speech introducing the Federal Magistrates Bill 1999 into the Commonwealth Parliament:
“The government proposes that the federal magistrates develop a new culture, with an emphasis on user-friendly, streamlined procedures. This will be especially important for litigants who do not have legal representation. The Federal Magistrates Service will be as informal as possible, while remaining consistent with the discharge of judicial functions…
Undoubtedly, considerations of this kind led to the insertion of section 42 into the Federal Magistrates Act. This section, which remains in force with the commencement of the Federal Circuit Court, reads as follows:
“In proceedings before it, the Federal Magistrate must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.”
Pursuant to section 43, the practice and procedure of the court is to be managed in accordance with its rules. By necessary implication, those rules are to be in keeping with the overall spirit of the court. However, where necessary, if there is a lacuna in respect of its rules, the court is authorised to apply appropriate provisions of both the Family Law Rules and the Federal Court Rules.
In further keeping, with its raison d’être as a court dealing with less complicated matters, pursuant to section 45 of the Act, parties are prohibited from administering interrogatories or making discovery, unless it is judged appropriate to do so in the interests of justice.
Finally, pursuant to section 50(1), proceedings may be instituted in the court by way of application, without the need for pleadings. This is what the wife has done in the present matter.
However, pursuant to the court’s rules, in appropriate cases, the court can order a statement of claim to be filed or if more appropriate, points of claim to be filed, in support of an application.
The court’s authority to allow amendment is contained in rule 7.01 of the Federal Circuit Court Rules 2001. Rule 7.01 provides as follows:
7.01 Power to amend
(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
(2) Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
Rule 7.03 refers to general federal law proceedings only. It grants the court a discretion, to make an amendment, even if the effect is to include a new cause of action, if the court considers it appropriate and “the new cause of action arises out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceedings by the parties seeking leave to amend.”
In this case, it is clear that the wife’s application to amend does include a new cause of action naming new parties. However, it would appear to me that this potential claim for relief arises out of the same factual situation, which she outlined in her initial affidavit and more recently in her trial affidavit. The difference being, from her point of view, she has now been apparently advised of the potential implications of this factual scenario.
Rule 11.01(1) deals with the joinder of parties. It reads as follows:
11.01 Necessary parties
(1) Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.
(2) The Court may require a person to be included as a party.
Pursuant to rules 11.03 and 11.04 a person may apply to the court to include a party to a proceeding and that party may apply to be removed. As previously indicated, as yet Mr & Mrs Goodwin Senior have not yet indicated what is their view in respect of the wife’s joinder.
This court is directed to provide cost efficient and speedy access to justice, which has the potential to benefit not only the litigants involved in this particular matter, but also the community generally, particularly other users of the court system.
The Federal Circuit Court is a busy first instance court with a wide jurisdiction in family law and matters of general federal law. One of the characteristics of family law courts, particularly at first instance is a high volume of matters often requiring the urgent resolution of issues relating to the care of children.
This leads to the need to slot in matters at short notice, often in the morning or afternoon before and after the time courts have traditionally convened in this country so that the matters can be determined expeditiously on an interim basis. At the same time, the court must deal with the final hearing of cases which have moved beyond the interlocutory stage.
In addition the Federal Circuit Court operates a docket system where cases are allocated to the one judicial officer permanently. This is to avoid the evil of litigants having to reiterate their cases to a fresh judge upon the making of an interlocutory application. This mechanism is said to be an aid to efficient case management and to hasten the finalisation of cases.
Accordingly, at any one time each judge of the Federal Circuit Court has an individual docket comprising many individual files, which he or she is required to manage from instigation to completion. Necessarily the docket system creates many calls on the time of the judge concerned both in pre-trail management and at final hearing. The rationale of the docket system being that the court is to be a helping one, which is readily accessible to persons from all walks of life.
Aspects of the general federal law jurisdiction of the court also encompass areas of law, which are to be characterised as areas of high volume. These areas are particularly the judicial review of decisions of the Refugee and Migration Review Tribunals and small claims arising under the Fair Work Act. Many applicants in these types of application are unrepresented as they often are in family law matters.
Underpinning the husband’s opposition to the adjournment is his assertion that the court’s objectives and rationale will be undermined by a grant of the application, which will not be in the interests of justice as a whole because by necessary inference, the amendment application can only be motivated by one of three factors:
·The wife has hitherto been taken by surprise by an aspect of the husband’s case;
·It is motivated by a tactical decision;
·It is as a result of a failure of her advisors to advise her in an appropriate and timely manner as to what are her appropriate causes of action.
It is contended further, that there can be no suggestion of the wife being taken by surprise, as her wish to amend her case arises solely as a consequence of her volition and not in response to any factual scenario raised by him. From his perspective, the case remains a common or garden family law case involving a relatively modest property pool.
Accordingly, in these circumstances, he asserts that it is not in the interests of justice to allow an adjournment, which is either tactically motivated or referable to an error of judgment on the part of the persons advising the wife, as none of these matters are attributable to him. Therefore the granting of the adjournment will cause prejudicial delay to him and be otherwise out of keeping with the case management principles of the court generally.
Case management principles are important, particularly in a bust court. Their proper application allows the court to manage its business efficiently and cost effectively for the benefit of all. This is particularly so in a court such as this one, which has many calls on its resources, including from disadvantaged sectors of the community.
Accordingly, the court cannot blithely dismiss case management principles or too easily accede to adjournment and amendment applications, which can be attributed to the late changing news of tactical decisions being made in legal offices at the last minute due to inadequate preparation. In general terms, the court should not endorse late applications, which results in hearings being adjourned and court days wasted without cogent reasons.
However, at the same time, the court cannot ignore its responsibilities to administer the law fairly, which after all is the ultimate aim of justice. It is not of assistance to litigants, and so the interests of justice generally if litigants perceive their applications for either adjournment or amendment have been arbitrarily dismissed as a consequence of shibboleths offered up on altars consecrated to the Gods of Case Management. Every case requires an idiosyncratic consideration and a balancing of the various factors concerned.
In Aon Risk Services Australia Limited v Australian National University[4] French CJ said as follows:
“Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation.”
[4] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 189 [24]
Essentially, the interests of justice, in terms of the interests of other users of the courts services, militate against the late adjournment of trials because they are wasteful and both disruptive and dismissive of the processes of the court itself.
In addition, the court has been directed to consider the emotional strain and expense occasioned to other court users whose cases will be inevitably delayed by the late adjournment or amendment of other cases, resulting in more interlocutory processes and the waste of hearing dates, further delaying the proper resolution of their cases. Essentially the noisy and inefficient wheel will grab all the court’s attention to the detriment of the prudent and thoughtful litigant, which is essentially unfair.
It is for this reason that all courts in this modern era, including this one, have adopted rigorous principles of case management to expedite litigation and streamline processes. In Aon the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said as follows:
“It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. … [t]he extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.”[5]
[5] ibid at 214-215 [102]
Aon creates a number of considerations, which are to be applied in assessing whether an application for amendment (and by necessary implication any resulting adjournment) should be granted. They include the following:
·Whether there has been undue delay in making the application;
·The extent to which there will be wasted public resources in granting the application;
·Whether the inefficiency, so occasioned, will require the revisiting of otherwise completed interlocutory processes;
·Will a trial need to be adjourned;
·Is there a satisfactory reason for the delay in applying;
·Whether the point to be raised by the amendment would be raised in any event at trial;
·The likelihood of strain and uncertainty being imposed on the litigants concerned;
·Whether any further delay would undermine confidence in the administration of civil justice generally;
·Any other prejudice likely to be suffered by the other party;
·The additional costs likely to incurred.
Again, it needs to be emphasised that the court is not currently considering the amendment and joinder applications per se, which may or may not be successful. Rather, it is considering whether the trial should be adjourned to enable those applications to be properly considered by the court concerned.
As previously indicted, it is the wife’s position that it is in the overall interests of justice that she should be permitted to explore this aspect of her case and it is convenient that it be done so in this court, rather than in the Supreme Court. In this context, I concede that Mr and Mrs Goodwin Senior may have a different view if they are successfully joined as to the appropriate forum in which the case should be determined.
The application has been made at a very late stage in the piece. If the application is successful, the date allocated for the trial will have to be vacated. Given the lateness of the notice they cannot easily be utilised by other parties.
Given the volume of litigation in this court, it is its practice to over-list more often than not by a factor of three. This is because the rate of settlement of cases is high. At the time of this judgment, another matter is co-listed with this application. However, the intelligence received is that this matter is more than likely to resolve.
It is, of course, not unknown that more than one co-listed matter requires hearing on the date allocated. In these circumstances, the court is left in the invidious position of having to determine which matter should be prioritised. Cases involving children are usually prioritised over property cases.
Given the simplified processes adopted by the court, particularly in family law matters, and the high volume of cases coming before the court, I do not think that the general community would be scandalised if this matter was adjourned. As such, I do not think the granting of the adjournment would undermine confidence in the administration of civil justice generally.
As previously indicated, hitherto, this case has been regarded as being unexceptional in its nature, involving only the marital spouses concerned and a modest property pool. As a consequence, up to this stage, it has not involved any extensive interlocutory proceedings.
Rather, there have been three mention dates which have involved the setting of a conciliation conference; the resolution of children’s issues; and then the allocation of a trial date. Accordingly, in my view, it is not a case which has occupied a disproportionate amount of the court’s resources to other cases.
Ms Goodwin has offered an explanation for the delay in bringing her application for both adjournment and to amend her application. I accept that she relies on the advice proffered to her. It is frequently the case, in legal practice that advice is provided to litigants by counsel retained to appear at the trial. Such counsel are frequently retained at a late stage and necessarily advice provided in conference.
I do not consider that such a practice can be categorised as being professionally inappropriate or unreasonable. In this case, Mr Richards of counsel has been retained on behalf of the wife. He is a very experienced and senior junior barrister in the family law field. In my view, the wife is entitled to rely upon his advice and it would be unfair to her to not allow her to do so.
Ms Goodwin would be able to raise the issue of the alleged constructive trust in the trial proceedings. However, in the absence of Mr & Mrs Goodwin Senior, it would be difficult for her to recoup any benefits from raising these matters in her suit with Mr Goodwin alone.
True it is that Ms Goodwin could institute proceedings in the Supreme Court of South Australia. I am not directly concerned with the cost implications of any such application from either of the perspectives of the State of South Australia itself or any of the potential parties concerned.
However, in broad terms, it seems to be more likely than not that it will be both cheaper and more efficient if the proceedings concerned are dealt with in a federal family law jurisdiction, which may apply necessary principles of equity, as are necessary to resolve all issues between the parties concerned.
At the end of the day, inter-generational issues in regards to the transfer of farming lands, particularly between parents and their children in the light of the common societal misfortune of marital breakdown, are a staple of the family law courts generally.
In general terms, it is a common scenario for a person to marry into a complicated farming family which holds strong emotional and financial attachment to land, sometimes over many generations and, within such a matrix, for the person marrying in to make substantial and various contributions towards both the benefit of the family concerned and the farming business generally.
This appears to be the situation in the current matter. Although such scenarios are reasonably commonplace, they cannot be regarded as simple. Very often the individuals concerned are regarded as asset rich but income poor, with the dilemma being compounded by the fact that for a farm to remain economically viable, it is not feasible for a portion of it to be sold off.
I accept that any delay in the trial will cause additional emotional strain to Mr Goodwin and quite possibly cause him to incur further costs. Necessarily, the legal assertions currently being made by the wife are complicated in nature. In any attempt on her part to apply them, it is inevitable that this case will be transformed from a less complicated matter, which is readily amenable to be dealt with within the ethos and process of this court to a much more complicated one.
However, at the end of the day the wife cannot be criticised merely for the fact that the case which she wishes to bring is a legally complicated one. Rather, in my view, it is the obligation of both the court and the parties concerned to ensure that it is transferred to the jurisdiction most appropriate for its completion. In these circumstances, it seems to me unlikely that Ms Goodwin has brought her application to adjourn as a tactical ploy.
At this stage, any potential prejudice to Mr & Mrs Goodwin Senior is inchoate other than the necessary inconvenience and expense of being potentially a party to complicated litigation. The prejudice to the husband is that he will not get the trial date anticipated by him. However, it does not seem likely that he will have to significantly re-draft his affidavit material. The question of whether or not representations were made to him and the wife and the consequences of such representations are matters of evidence.
In all these circumstances, I accept that to not grant the adjournment would occasion the wife considerable prejudice, which is likely to be greater than the prejudice occasioned to the husband if the proceedings are delayed. In addition, I am of the view that prejudice can be accommodated by the reservation of his costs of this application.
In determining prejudice, I bear in mind that Mr Goodwin remains in possession of the Property A farm and the plant and equipment contained on it. As such, he is in a position where he can continue to support himself financially.
The prejudice to him therefore is likely to relate solely to the emotional stresses and strains arising from delay and being emotionally prepared for a trial, which is aborted. No doubt, he is also likely to feel stressed at his possible exposure the more complicated piece of litigation, as envisaged by the wife, which is also likely to involve his parents. On any view, this is the type of litigation which divides families.
However, in my view, it would be fundamentally unfair to the wife to deprive her of the opportunity to mount the case of her choosing in the court of her preference, notwithstanding the late notice of that case to the opposing parties concerned.
I will vacate the hearing date and allocate a date for the hearing of the joinder application and will allow Mr & Mrs Goodwin Senior some time to draft their response to it. At the adjourned date, I will also give consideration to the appropriate forum for the further hearing of the matter and when and where the required trial can be best accommodated.
The provisions of section 39 of the Federal Circuit Court of Australia Act 1999, deal with issues relevant to the proceedings being transferred to the Family Court. The section empowers the court to transfer proceedings either on its initiative or on the application of a party.
The matters to be considered on such a transfer are enumerated in section 39(4) and are as follows:
·the applicable rules of court;
·whether proceedings are pending in respect of an associated matter in the Family Court;
·whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceedings;
·the interests of the administration of justice.
If proceedings are transferred, the Federal Circuit Court may make any order it considers necessary pending the disposal of the matter in the Family Court [section 39(5)]. No appeal lies from the decision to transfer [section 39(6)]. However, as with all discretions, I take it, the discretion to transfer a matter to the Family Court is to be exercised judicially.
The applicable rule of court dealing with transfer is Rule 8.02 of the Federal Circuit Court Rules 2001. If a party wishes the transfer of a proceeding, it must be made on or before the first return date unless the court orders otherwise.
An application for transfer must be supported by an affidavit. In addition, pursuant to Rule 8.02(4), the following factors are identified as relevant to the exercise of the discretion to transfer:
·whether the proceedings entail a question of general importance such that it would be desirable for there to be a decision of the Federal Court on the issue;
·whether, if the proceedings are transferred, it would lead to a reduction of costs and be more convenient to the parties concerned;
·whether the proceedings could be heard sooner;
·the availability of particular procedures appropriate to the class of proceedings concerned;
·the wishes of the parties.
Until such time as the issue of joinder is resolved, in my view, it is premature to transfer the proceedings to the Family Court. However, it is, I think, implicit in the wife’s case that this is the appropriate forum for the matter, given its level of complexity and the desirability it proceed by way of a statement of claim rather than the simplified application envisaged in this court.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 19 February 2018
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