Haines & Rader (No 4)

Case [2022] FedCFamC1F 1008

Federal Circuit and Family Court of Australia

(DIVISION 1)

Haines & Rader (No 4) [2022] FedCFamC1F 1008

File number: SYC 1641 of 2019
Judgment of: BRASCH J
Date of judgment: 21 December 2022
Catchwords:

FAMILY LAW - PROPERTY – Undefended hearing – How to treat unchallenged evidence of wife and untestable evidence of husband - Where deliberate non-disclosure - Where failure to disclose impacts on the Balance Sheet – Where failure to disclose impacts on assessment of s 75(2) factors – Where husband seeks 104 per cent of the pool – Where wife seeks 65 per cent of the pool - Adjustment made

FAMILY LAW - CHILD SUPPORT – Where husband seeks child support departure order – Where quantum sought not explained - Where Child Support Assessment not in evidence – Where Child Support Registrar not served as required by Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.13(1)(a), (4)(c) - Application dismissed

FAMILY LAW - STAY - Where husband again applies to stay proceedings pending the outcome of other matters in a state court – Where Rader & Rader [2022] FedCFamC1F 375 followed - Application dismissed

FAMILY LAW - COSTS – Whether the husband, wife or both ought meet the costs of third parties complying with subpoenaes issued by husband – Husband to meet costs

Legislation:

Child Support (Assessment) Act1989 ss 116(1), 117(2)

Evidence Act 1995 (Cth) ss 50, 55, 140

Family Law Act 1975 (Cth) ss 75 (2)(a)-(q), 79(1), 79(2), 79(4), 106A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.13(1)(a), 1.13(4)(c), 3.10(1)(b), 10.26, 10.27, 15.15, 15.19
Cases cited:

Allesch v Maunz(2000) 203 CLR 172; [2000] HCA 40

Babett & Falconer (2015) FLC 98-067

Baranski & Baranski (2012) 259 FLR 122; [2012] FamCAFC 18

Beckert & Beckert (2021) 64 Fam LR 218; [2021] FedCFamC1A 40

Benson v Drury (2020) 62 Fam LR 1; [2020] FamCAFC 303

Bevan v Bevan(2013) FLC 93-545; [2013] FamCAFC 116

Biltoft and Biltoft (1995) FLC 92-614

Black and Kellner (1992) FLC 92-287; [1992] FamCA 2

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

C & C [1998] FamCA 143

NHC & RCH (2004) FLC 93–204; [2004] FamCA 633

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Dovgan & Dovgan [2021] FamCA 306

Efthimiadis & Efthimiadis(1993) FLC 92-361 

Fielding and Nichol [2014] FCWA 77 

G and G (2000) FLC 93-043; [2000] FamCA 1075

Harris v Caladine(1991) 172 CLR 84; [1991] HCA 9

Haines & Rader (No 2) [2022] FedCFamC1F 685

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Jackson v Goldsmith (1958) 81 CLR 446; [1950] ALR 559

Kennon…

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AGLC
Haines & Rader (No 4) [2022] FedCFamC1F 1008
Case
[2022] FedCFamC1F 1008
Decision Date

CaseChat Overview and Summary

The case of Haines & Rader (No 4) was heard in the Family Court of Australia. The dispute involved the wife, Ms. Haines, and the husband, Mr. Rader, who were in the midst of a property settlement. The wife sought to establish the extent of her entitlement to property and maintenance from her former husband, while the husband sought to challenge the wife's claims. The case involved various legal issues, including the application of the Family Law Act 1975 (Cth) and the consideration of factors relevant to property settlement and maintenance. The court had to determine whether the wife's unchallenged evidence should be accepted and whether the husband's failure to provide relevant evidence entitled the court to dismiss the applications. The court also had to consider the husband's application to set aside the orders of 5 and 6 September 2022, which was dismissed with costs. The wife relied on several documents, including affidavits, financial statements, and an outline of the case, while the husband's evidence was deemed untestable. The court found that the wife's failure to disclose certain information was a relevant factor in determining the property settlement and maintenance. The court also found that the husband's failure to comply with the rules and orders and his unnecessary prolongation of the proceedings were not sufficient grounds to dismiss the wife's claims.

The court considered the wife's unchallenged evidence and the husband's untestable evidence in determining the property settlement and maintenance. The court held that while it was not mandated to accept the wife's unchallenged evidence, it may be "wrong, unreasonable or perverse to reject unchallenged evidence." The court also held that the husband's failure to provide relevant evidence did not entitle the court to dismiss the applications. The court applied s 79(2) of the Family Law Act 1975 (Cth), which provides that the court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. The court considered various factors relevant to the property settlement and maintenance, including the husband's failure to disclose, his conduct in failing to comply with the rules and orders, and the wife's provision of child support. The court held that the husband's failure to disclose was a relevant factor in determining the property settlement and maintenance, while his conduct other than non-disclosure and the wife's unnecessary prolongation of the proceedings were not sufficient grounds to dismiss the wife's claims.

In conclusion, the court found in favour of the wife and ordered the husband to pay property settlement and maintenance. The court held that the wife's unchallenged evidence was relevant and should be considered in determining the property settlement and maintenance. The court also held that the husband's failure to disclose was a relevant factor in determining the property settlement and maintenance, while his conduct other than non-disclosure and the wife's unnecessary prolongation of the proceedings were not sufficient grounds to dismiss the wife's claims. The court's decision was based on the application of the Family Law Act 1975 (Cth) and the consideration of factors relevant to property settlement and maintenance. The court's decision was also based on the evidence presented by the parties and the application of legal principles established in previous cases. The court's decision provides guidance to other courts and practitioners in similar cases involving property settlement and maintenance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

However, that is not to say that I must, in a mandatory sense, accept what the wife said. In Scott & Scott (1994) FLC 92-477 (Baker, Lindenmayer & Bell JJ) at 80,729 the Full Court of the Family Court said: There is, in Australia, no rule of law that a Judge must accept evidence which is unchallenged: Cross on Evidence, 3rd Australian ed. (1986) - footnote 483 para.9.66 at 440; and Ellis v. Wallsend District Hospital (1989) Aust. Torts Reports 80-289 at 69,090; (1989) 17 NSWLR 553 at 588 (per Samuels, JA). However, a number of authorities establish that it may be "wrong, unreasonable or perverse to reject unchallenged evidence" (per Samuels, JA., Ellis v. Wallsend District Hospital, supra at Aust. Torts Reports 69,090; NSWLR 587) and that if an appellate court concludes that it were so, in the particular circumstances of a given case, it may overturn the decision of the primary Judge on the basis of an error of fact, rather than an error of law.(Emphasis added) So, whilst I am not mandated to accept the wife’s unchallenged evidence, it may be "wrong, unreasonable or perverse to reject unchallenged evidence". I will consider the wife’s unchallenged evidence as I deal with the specific controversies between the parties. Failure by parties to provide relevant evidence relating to aspects of their financial affairs does not entitle the Court to dismiss applications or to relieve the Court of the responsibility of applying the provisions of the Act in the light of such findings as can be made (Efthimiadis & Efthimiadis(1993) FLC 92-361 and Stay v Stay(1997) FLC 92-751). I must apply s 79(2) of the Act, which provides that, “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. See also Harris v Caladine(1991) 172 CLR 84, Stanford v Stanford(2012) 247 CLR 108 (“Stanford”) and Bevan v Bevan(2013) FLC 93-545 (“Bevan”). I therefore turn to a consideration of the property settlement applications, albeit within the confines of the wife’s unchallenged evidence and the husband’s untestable evidence.APPLICATION TO SET ASIDE THE ORDERS OF 5 and 6 september 2022 By Application in a Proceeding received by chambers on 9 December 2022, the husband applied to set aside the 5 and 6 September 2022 Orders pursuant to r 10.13 of the Rules. I issued directions for filing material and set the matter down for hearing at 2.15 pm on Monday 19 December 2022. I delivered ex tempore reasons dismissing the Application on 20 December 2022. Those reasons are published as Haines & Rader (No 3) [2022] FedCFamC1F 1007. The husband’s Application was dismissed and with costs.DOCUMENTS relied upon The applicant wife relied upon the following documents:·Affidavit of Ms Haines filed 2 September 2022, but not paragraphs 125, 127, 128, 130-140, and the first sentence of 142;·Further Amended Initiating Application filed 17 August 2022;·Financial Statement filed 1 May 2022;·Affidavit of Mr V filed 2 September 2022;·Affidavit of Ms Haines Snr filed 2 September 2022; ·Affidavit of Mr Haines Snr filed 2 September 2022;·Affidavit of Dr CC filed 2 September 2022;·Affidavit of Mr DD filed 2 September 2022; ·A list of objections, which were not pressed other than as to weight (Exhibit 1);·An Outline of Case Document filed 2 September 2022, which was superseded by an Amended Outline handed up at trial. In that Amended Outline, the wife abandoned her Kennon claim and did not press two particular parts of that document that related to Kennon (part of paragraph 1 on page 7, and all of paragraph 5 on page 8). The amended Outline was marked Exhibit 2; ·A Tender Bundle of annexures to the wife’s affidavit (Exhibit 3), and specifically Tabs 1, 2, 4-31, 34 and 43. I was told the original Tender Bundle (albeit a larger document then) was provided to the husband’s solicitor prior to trial, when he was still on the record; and·Further documents tendered throughout the course of proceedings, which became Exhibits 4 to 7. I was told these exhibits came from documents produced under subpoenas and thus available to the husband.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

No submissions were made on this. It is not relevant.Subsection (2)(k) – the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration No submissions were made on this. It is not relevant.Subsection (2)(l) – the need to protect a party who wishes to continue that party’s role as a parent This is not relevant. The children are close to their majority. Subsection (2)(m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation The wife has re-partnered, but her unchallenged evidence is that she and Mr V do not cohabit. Nothing turns on this factor. Subsection (2)(n) – the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party Not applicable. Subsection (2)(naa) – the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to a party to the marriage; or a person who is a party to a de facto relationship with a party to the marriage; or the property of or vested bankruptcy property in relation to a person covered by the categories aforementioned Not applicable. Subsection (2)(na) – any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage I do not have the assessment before me. I was told by the wife in evidence in chief that the parties are before the relevant Tribunal dealing with a disagreement about child support. That is the proper forum for that dispute. Given the ages of the children, the wife’s provision of child support into the future is not a factor that looms large.Subsection (2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account The wife made three central submissions under this limb:· The husband’s failure to disclose generally and his specific failure to disclose all his draws against the Suburb J mortgages;· The husband’s conduct in failing to comply with the Rules and/or Orders; and· The husband unnecessarily drawing out these proceedings. Dealing with the last one first, it is correct that the husband has brought many applications and reviews, even as recently as 9 December 2022 when he applied to set aside orders of 5 September 2022 and 6 September 2022. As frustrating as that may have been for the wife, the husband was entitled to do so and the wife entitled to seek costs. He has not been declared vexatious. I will not take that into account. The first and second are closely intertwined – the failure to disclose, for example, is often a failure to comply with rules and orders. Thus, I will consider non-disclosure as one category and then look at conduct other than non-disclosure as another.Non-disclosure It is trite that the integrity of the s 79 process heavily depends upon the absolute duty of parties to meet their obligations of full and frank disclosure of all information relevant to the case, including disclosure of their financial position both as to assets and liabilities (Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Suiker and Suiker (1993) FLC 92-436 and Weir and Weir (1993) FLC 92-338 (“Weir ”)).