HELMS & HELMS - [2016] FamCA 389

FAMILY COURT OF AUSTRALIA

HELMS & HELMS

[2016] FamCA 389

FAMILY LAW – PRACTICE AND PROCEDURE – Property Settlement – Application for deferral of property proceedings – Family Law Act 1975 (Cth) s79(5) – change in financial circumstances – Where the trial Judge’s finding that a significant change within the period of the adjournment would be more likely to do justice as between the parties than an immediate order – where case management principles and the need for expeditious justice with the opportunity for parties to properly present their best case.

Family Law Act 1975 (Cth) s79(5)

Grace & Grace (1998) FLC 92-792; 22 FamLR 442
Van Essen & Van Essen (2000) FLC 93-028
Blue & Blue [2008] FamCA 787
Pratt v Pratt (2012) 47 FamLR 234
Commonwealth v Amann Aviation (1991) 174 CLR 64
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Strahan & Strahan (2011) FLC 93-466

APPLICANT:

Ms Helms

RESPONDENT:

Mr Helms

FILE NUMBER:

TVC

1223

2012

DATE DELIVERED:

23 May 2016

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

29 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Looney QC

SOLICITORS FOR THE APPLICANT:

Michael Lynch Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Fellows

SOLICITOR FOR THE RESPONDENT:

McKays Family Law

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC1223/2012

Ms Helms

Applicant

And

Mr Helms

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Application in a Case filed 20 February 2016, Ms Helms (“the wife”) seeks that the current listing of these property proceedings for trial commencing 14 March 2016 be vacated, and that new trial dates not be allocated before 1 January 2017.[1] That application was founded upon s 79(5) of the Family Law Act, which I will discuss in greater detail in due course. In the event that that application was unsuccessful, then by Application in a Case filed 19 February 2016, the wife sought permission to lead evidence from an adversarial expert forensic accountant. However in the event that her application to defer the trial was successful, then she sought orders for the sale of various matrimonial property, and the division of the net proceeds of such sales equally between the parties. In the event that her application to vacate the hearing was not successful however, she did not seek such orders.
[1]This Order was modified to refer to 1 January 2017 by the wife’s proposed orders, although the application had originally specified a date of 1 March 2017.
By his Response filed 26 February 2016, Mr Helms (“the husband”) opposed both the vacation of the trial dates and the appointment of an adversarial expert, conceded that the sale of the property should proceed, but contended that the net proceeds of sale should not be distributed to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FamCA 389
Decision Date: 23 May 2016

CaseChat Overview and Summary

In *Helms & Helms*, the parties sought to defer property settlement proceedings under section 79(5) of the *Family Law Act 1975* (Cth). The primary issue before Tree J was whether a significant change in the parties' financial circumstances was likely to occur during an adjournment, and if so, whether deferring the proceedings would better serve the interests of justice compared to making an immediate order.

The court was required to consider the principles of case management and the imperative for expeditious justice, balanced against the need to afford parties a proper opportunity to present their best case. This involved assessing the likelihood of substantial financial shifts and their potential impact on achieving a just and equitable property division.

Tree J reasoned that a deferral would be appropriate if there was a demonstrable prospect of a significant change in financial circumstances that would materially affect the property settlement. The court applied the overarching principles of the *Family Law Act*, emphasizing that justice between the parties is paramount and that procedural mechanisms, such as adjournments, should be employed to facilitate a just outcome, even if it means a temporary delay in finalisation. The judge considered that allowing time for financial circumstances to evolve could lead to a more equitable distribution of assets.

Orders