Guild and Stasiuk (No 2) - [2019] FamCA 359

FAMILY COURT OF AUSTRALIA

GUILD & STASIUK (NO. 2)

[2019] FamCA 359

FAMILY LAW – BINDING FINANCIAL AGREEMENT – trial of proceeding – decision of Full Court in Frederick & Frederick handed down the day earlier – whether that decision altered the law – applicant wanting to adduce further evidence – whether to grant adjournment – whether Full Court decision actually altered the law.

Family Law Act 1975 (Cth) ss 90K(1)(d), 117(2A)

Frederick & Frederick [2019] FamCAFC 87

APPLICANT:

Ms Guild

RESPONDENT:

Mr Stasiuk

WITNESS UNDER SUBPOENA:

Mr H

FILE NUMBER:

MLC

13949

2018

DATE DELIVERED:

30 May 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

30 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Dickson QC

SOLICITORS FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Dr R Ingleby

SOLICITORS FOR THE RESPONDENT:

Berger Kordos Lawyers

COUNSEL FOR THE WITNESS UNDER SUBPOENA:

Mr J Salamanca

consent Orders

Within seven days, each party deliver to the other a list of document/categories of documents sought to be disclosed, and the receiving party within 14 days thereafter provide such of the requested documents as are within their possession, power or control, or provide an explanation as to why such document cannot or should not be produced.
The parties jointly instruct single expert valuers to value any real estate or business interests, the value of which remains in dispute, in 28 days (the husband’s assertions as to real estate valuers being those contained in his financial statement).
Any further affidavit material to be filed and served –
(a)by the wife (including affidavits annexing the expert reports) by 16 September 2019; and
(b)by the husband by 30 September 2019.
The compliance date for the subpoena addressed to Mr H be extended to 10am on 10 October 2019.The trial of this proceeding is adjourned.

Orders

The trial date of 31 May 2019 is vacated.
The trial of this proceeding is adjourned to 10 and 11 October 2019 at 10am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Guild & Stasiuk has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13949 of 2018

Ms Guild

Applicant

And

Mr Stasiuk

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 22 March 2019 the Honourable Justice Cronin made orders fixing this case for trial on two days the first of which was to be today. The parties have complied with his Honour’s orders as to procedural steps and the case was listed before me today scheduled to commence for the two days that had been allocated to it.
Shortly after appearances were announced I dealt with housekeeping issues in the course of which I brought to counsel’s attention a decision of the Full Court, the decision of which was handed down within the last two days, in a case called Frederick & Frederick.[1] There the Full Court gave consideration to one of the sections in issue in this case namely s 90K(1)(d). The court made various observations about that section and I brought it to the parties’ attention because the case was so recent that it had escaped inclusion in both parties’ outline of case document.
[1] [2019] FamCAFC 87
The parties were given an opportunity to consider the impact of that case and whether they wanted to make submissions about it. As it happened, Mr Dickson one of her Majesty’s Counsel for the applicant, told me that the case of Frederick & Frederick had a bearing on the evidence that he wished to adduce, and he asked for the case to be adjourned for three months to enable his client to adduce valuation evidence.
The application was opposed by Dr Ingleby on a number of grounds. The most trenchantly advocated ground of opposition was that the adjournment would have no bearing on the matters to be established in any consideration of s 90K(1)(d). Dr Ingleby focused on the phrase “a material change in circumstances” set out in that section.
A discussion then ensued between Dr Ingleby and me about the proper construction of that section and its bearing upon children, which took Mr Dickson QC, in reply, to rely on a different authority on the relevance of children in a construction of that section.
It will be immediately apparent that s 90K(1) has nine subparagraphs to it, all of which are expressed to be alternative. As it happened, the applicant relies on very many of those, as was she was entitled to do. Including subsection (d), all sub-sections are in issue. Whether any one of them is likely to succeed remains for consideration on another day. Suffice it to say for present purposes that subsection (d) is the subject of reliance by the applicant.
I explored with Mr Dickson QC why valuation evidence, if thought appropriate, had not been adduced thus far given that his client in this case has, at all material times, sought reliance on that subsection. He told me that discovery has been defective and remains an issue and as a result the needed to focus on valuation evidence was not as apparent as it has now become since the decision in Frederick & Frederick. He asked for time to adduce that evidence. There was a discussion about the extent to which Dr Ingleby’s client’s financial statement could be called in aid to make good whatever it says about the extent of the financial information in this case. Nevertheless, Mr Dickson QC pressed his application for additional material.
In the course of debate I explored with all counsel whether this application was, in fact, becoming an application for the segregation out of the case of the claim under subsection (d). Mr Dickson QC characterised my acquiescence to Dr Ingleby’s resistance to the adjournment application as a summary dismissal of the applicant’s contentions in respect of subsection (d). That seemed to me to be accurate. In other words, if I foreclosed on the applicant’s right to rely on such evidence as she sought to adduce in respect of subparagraph (d) that would, in effect, have a very material bearing on the applicant’s evidence in support of subparagraph (d).
It is not proper on an application such as this or at least I will not accede to a request to summarily dismiss one of the claims that are perfectly properly made in reliance upon the very many subparagraphs of s 90K(1). In those circumstances, it seemed to me to be appropriate to accede to the request to adduce further evidence.
Then followed the consequences of that insofar as the conduct of this case was concerned. Mr Dickson QC said that three months was adequate to enable him to obtain the necessary evidence. That conclusion put events to September. The state of my diary is such that I can accommodate this case on 10 and 11 October.
The fairness of acceding to this application then came into sharp focus. Dr Ingleby said that some price for the adjournment should be exacted and he submitted that it should be an order requiring the applicant to pay rent during the adjourned period. Conversely, Mr Dickson QC said that the appropriate order is for all parties’ “powder to be kept dry” between now and the resumption.
While I recognise that in certain circumstances the price of an adjournment may be in monetary terms in costs or other consequences. The facts underpinning the claim under s 90K(1)(d) will remain extant and it will call for investigation. It seems to me that there is merit in therefore making no order other than trying to accommodate the parties as quickly as can be done and a revised trial date on 10 and 11 October seemed to deal with that.
The only remaining matter was the question of costs. Neither Mr Dickson QC nor Dr Ingleby applied for their costs of today. Conversely, Mr Salamanca, who appeared with leave to represent Mr H, asked for an order reserving his costs of and incidental to today. Superficially, that application had attraction. After all, Mr H has been brought here by subpoena to watch the events between the applicant and the respondent play out. By reason of the application made today that will not proceed and instead the trial will be held on a date later. Superficially, as I say, there is some merit in his being brought back but with his costs having been paid for the abortive exercise today.
That said, no evidence was before me under s 117(2A) to enable any determination to be made on a threshold question of costs aside from the anterior question about whether a witness in a case, whether he appears in response to a subpoena or otherwise, has an entitlement to have his costs paid in any event by the parties to the proceeding. Mr Salamanca urged me in those circumstances to reserve the question of costs so that he could renew any such application on a new date. It seems to me that in all the circumstances he has an entitlement to renew an application for costs if he is brought here on the new date.
In those circumstance, I will adjourn this trial to 10 and 11 October otherwise requiring any further valuation evidence to be filed and served by Mr Dickson’s client within three months of today, the precise of date of which can be the subject of agreement between him and Dr Ingleby.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 30 May 2019.

Associate:

Date: 7 June 2019