Holford and Lorton

[2020] FCCA 2842

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLFORD & LORTON [2020] FCCA 2842

Catchwords:
FAMILY LAW – Property – alteration of property interests – application to set aside consent orders – where real likelihood a trial may take in excess of four days – transfer to Family Court.

Legislation:

Family Law Act 1975 (Cth), s.79A(1)

Applicant: MR HOLFORD

Respondent: MS LORTON

File Number: DNC 231 of 2020

Judgment of: Judge Young

Hearing date: 29 September 2020

Date of Last Submission: 29 September 2020

Delivered at: Darwin

Delivered on: 29 September 2020

REPRESENTATION

Counsel for the Applicant: Mr Tippett

Solicitors for the Applicant: Maleys Barristers & Solicitors

Counsel for the Respondent: Ms Farmer

Solicitors for the Respondent: Withnalls Lawyers

ORDERS

UPON NOTING:

A.That the trial is likely to take longer than four days.

THE COURT ORDERS THAT:

1. These proceedings are transferred to the Family Court of Australia at Darwin on a date to be fixed by that Court.

IT IS NOTED that publication of this judgment under the pseudonym Holford & Lorton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNC 231 of 2020

MR HOLFORD

Applicant

And

MS LORTON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the husband to set aside consent orders made on 20 March 2019. The husband’s application, in my view, is problematic in that he does not clearly describe what part of section 79A(1) he relies on, though, in argument Mr Tippett told me it was 79A(1)(a) which I will describe in shorthand as the fraud/suppression of evidence ground.

3. The husband’s position is that there ought to be a single trial dealing with all matters, that is, his application to set aside and, on the assumption that the orders are set aside, the new orders for alteration of property interests.  Mr Tippett says that if the matter is conducted in that way it will undoubtedly take at least five days and possibly more.  As coming from experienced counsel I have to give that assessment some weight. 

4. After some discussion with Mr Tippett, despite the evident vagueness of some of his predictions about who might give evidence and about what, it’s clear enough that there would be, on his view of things, a requirement for both historic and current evidence of the value of said companies owned by the husband and the wife respectively and also evidence about the allegations of fraud and/or suppression of evidence.  I am satisfied that a trial in that form is likely to take well in excess of four days.

5. Ms Farmer said that the trial ought to be split.  She, I think, implied that the applicant’s case for setting aside is so weak that really a court should deal with that first and then only move on to the question of alteration of property interests if orders are set aside in a second hearing.  Obviously, courts are usually reluctant to split issues in that way, though, sometimes a trial of a preliminary issue is appropriate.  I find it difficult in this case to make an assessment about that, though I am satisfied that the evidence of fraud or suppression of evidence is far from straightforward at this stage and it is far from obvious that the husband has a strong case.  There might well be an argument, as Ms Farmer says, for splitting any trial in two and dealing with the setting aside question as a first or preliminary issue.

6. Obviously, without hearing the evidence it is impossible to make any final decision about that.  My overall feeling is there is a real likelihood that the trial may take longer than four days and having regard to the protocol existing between this court and the Family Court I therefore propose to transfer the matter to the Family Court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 16 October 2020