Hanson & Mercer
[2024] FedCFamC2F 1359
•30 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hanson & Mercer [2024] FedCFamC2F 1359
File number(s): SYC 9153 of 2022 Judgment of: JUDGE STREET Date of judgment: 30 September 2024 Catchwords: FAMILY LAW – PROPERTY – adjournment granted – respondent failed to comply with Court order to identify property in Country B - respondent examined as to property in Country B as a condition of the adjournment - costs reserved Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 30 September 2024 Place: Sydney Counsel for the Applicant: Ms M Bateman Solicitor for the Applicant: Wallumatta Legal Respondent: Appeared via video and audio-link ORDERS
SYC 9153 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HANSON
Applicant
AND: MR MERCER
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
30 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Order 2 made on 29 July 2024 fixing the matter for a final property hearing is vacated, on the condition that the respondent may be cross-examined today for non-compliance of order 5 made on 29 July 2024.
2.The matter is fixed for a final property hearing commencing at 10:00am on 10 June 2025 and continuing till 11 June 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The Court reserves the costs thrown away and occasioned by reason of the adjournment.
Procedural orders
4.Time is extended for the respondent to comply with his disclosure obligations in respect of the property located at C Street, Suburb D, as well as any other title documents concerning the land in Country E being F Property and G Property.
5.The respondent is directed to file and serve an updated financial statement on or before 30 November 2024.
6.The applicant is directed to file and serve an amended application on or before 7 February 2025.
7.The respondent is directed to file and serve an amended response on or before 21 February 2025.
8.The applicant is directed to file and serve a consolidate trial affidavit together with any other affidavit evidence that the applicant wishes to rely upon on or before 4 April 2025.
9.The respondent is directed to file and serve a consolidated trial affidavit together with any other affidavit evidence that the respondent wishes to rely upon on or before 22 May 2025.
10.The applicant is directed to file and serve a case outline including a chronology and a list of objections on or before 30 May 2025.
11.The respondent is directed to file and serve a case outline including a chronology and a list of objections on or before 30 May 2025.
12.The parties are directed to file and serve an updated balance sheet on or before 30 May 2025.
13.Leave is granted to the parties to file any valuation evidence on or before 23 May 2025.
14.Leave is granted to the parties to provide any tender bundle via email or USB seven (7) days prior to the hearing.
THE COURT NOTES THAT:
A.The respondent has informed the Court that he has made some form of Legal Aid application, although the nature of it is not apparent nor is it apparent that the respondent took proper steps to contact Legal Aid NSW to inform them of the making of the s 102NA order made on 29 July 2024 and his entitlement to Legal Aid representation through Commonwealth funding. Those issues can be agitated in respect of the hearing date that has been allocated on 10 June 2025, so far as becomes necessary to determine the same.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings are property proceedings that were commenced on 21 December 2022, at that stage, also involving parenting issues. On 29 July 2024, orders were made fixing the matter for final property hearing to commence today and to continue tomorrow. The Court made orders today vacating the final property hearing today and tomorrow and refixing the matter for a final property hearing in June 2025.
The orders made on 29 July 2024 included the making of an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), which had not been made on the last occasion, and included a notation that both parties were entitled to obtain Legal Aid representation through Commonwealth funding. The Court also made an order on 29 July 2024, requiring the respondent to file and serve an affidavit within seven days identifying the address and property details of the property in Country B, including any title documents relating to that property, and the respondent has not done so.
When the matter was called this morning, the respondent informed the Court that he had applied to Legal Aid NSW but has not received a response. No affidavit evidence was put on by the respondent in relation to that application. It is not apparent before the Court as to the nature of that application nor was it apparent to the Court as to whether proper steps were taken by the respondent to contact Legal Aid NSW and to inform them of his legal aid representation entitlement. The respondent continued he has not complied with the order 5 made on 29 July 2024, in relation to the property title details in Country B because he did not have any documents in Australia and had not yet been able to obtain them from his family in Country B.
Given that the respondent was entitled to legal aid representation and has not been able to obtain legal aid representation, the Court explained to the respondent that he was entitled to apply for an adjournment, and he did so. The adjournment was not opposed by the applicant. However, the Court did impose, as a condition of the adjournment, that the respondent may be examined in respect of his non-compliance with order 5 made on 29 July 2024, concerning his property in Country B.
The Court reserved the question of costs there were thrown away and occasioned by reason of the adjournment that was granted. The Court has taken into account the overarching purpose in s 95 of the Act and was satisfied, given the want of opposition, that it was appropriate in the interests of the administration of justice to grant an adjournment and to refix the matter for a further final property hearing.
The Court, in the course of refixing the matter and making fresh directions, emphasised to the respondent the importance of complying with his disclosure obligations in respect of the property in Country B and Country E. The Court extended time for the respondent to comply with those obligations to 30 November 2024. On one view, there is a very small property pool and the potential alteration of property interests, if the property pool is very small, may reflect appropriate adjustments for the limited period of the de facto relationship and the existence of the child. It is in the interests of both parties for unnecessary costs not to be further incurred. By complying with his disclosure obligations, the respondent will permit the applicant and the applicant's lawyers to be in a realistic position to assess what are the appropriate property orders to be sought. The Court notes that it received proposed orders from the respondent that bore no realistic relationship to the considerations that arise under s 90SM of the Act or the type of orders that the Court would make. It is in the interest of the parties to try and achieve a consensual resolution.
The Court notes that it is not in a position today to determine the issue of costs. The true financial position of the parties cannot yet be ascertained. Whilst there has been non-compliance with Court's orders by the respondent, the Court is not satisfied it is appropriate to determine any costs application until the final hearing in June 2025.
Accordingly, it is for these reasons that the Court makes the above orders.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Oral Published Reasons for Judgment of Judge Street. Associate:
Dated: 1 October 2024
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