Hopkins & Elliott - [2023] FedCFamC1F 167

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Elliott [2023] FedCFamC1F 167

File number: SYC 5636 of 2021

Judgment of: AUSTIN J

Date of judgment: 17 March 2023

Catchwords: FAMILY LAW – PROPERTY – Practice and procedure – Review of decision – Exclusive occupation – Where the wife advanced no proper legal reason for her sole and exclusive use of the husband’s home – Family violence injunctions – Where a family violence order made by a State court is already in force – Litigation funding – Where the husband’s financial position is precarious and the wife could not identify any asset in the husband’s possession that could be liquidated to fund her litigation costs – Interim property settlement – Where no reason was advanced by the wife to support an interim order compelling the husband to discharge the debts of both parties in advance of the trial – Spousal maintenance – Where the husband does not have the reasonable capacity to pay maintenance – Financial injunctions – Where the wife failed to demonstrate the husband should be restrained from discharging his usual directorial duties in relation to two corporations he controls – Orders made – No orders as to costs.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 69ZM, 79, 114AB, 117, 121

Income Tax Assessment Act 1936 (Cth) Pt III, Div 7A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pts 6.1, 6.2, 6.3, rr 5.07, 5.08

Domestic and Personal Violence) Act 2007 (NSW)

Cases cited:
Gabel v Yardley (2008) FLC 93-386

Hearne v Street (2008) 235 CLR 125

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Sarto and Sarto (2022) 65 Fam LR 605

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Division: Division 1 First Instance

Number of paragraphs: 54

Date of hearing: 17 March 2023

Place: Newcastle

Solicitor for the Applicant: Parker Law

The Respondent: Litigant in person
ORDERS

SYC 5636 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HOPKINS

Applicant

AND:
MS ELLIOTT
Respondent

order made by:

AUSTIN J

DATE OF ORDER:

17 March 2023

THE COURT ORDERS THAT:
1.Orders 2 to 18 inclusive made by the registrar on 31 January 2023 are set aside.
2.Within one month of the date of these orders the respondent shall vacate the real property and improvements known as B Street, Suburb C, NSW (“the property”) and is thereafter restrained from entering upon the property.
3.Leave is granted to the applicant pursuant to s 121(9) of the Family Law Act 1975 (Cth) to provide copies of the following documents filed by the respondent in these proceedings to the subrogated workers compensation insurer and its lawyers managing or defending the workers compensation claim made by the respondent against D Pty Ltd, upon condition that such documents not be disclosed beyond the confines of those proceedings:
(a)The affidavit filed by the respondent on 25 September 2021; and
(b)The affidavit filed by…

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.

Continue reading Hopkins & Elliott

Details

AGLC: Hopkins & Elliott [2023] FedCFamC1F 167
Case: [2023] FedCFamC1F 167
Decision Date

CaseChat Overview and Summary

The case of Hopkins & Elliott involves a property settlement dispute between the husband and the wife. The husband sought property settlement relief after the parties separated in early 2021. The wife claimed a significant portion of the net value of the aggregated matrimonial assets, despite the relatively short duration of their relationship and the husband's greater capital contributions. The husband, who conducts professional practice through two corporations he controls, has significant assets and business interests that secure substantial debts to his bank and the ATO. He pays over $3,000 per week to the ATO and must also pay rent and mortgage repayments. The husband's personal liabilities amount to around $1.5 million, and one of the corporations he controls owes the ATO about $350,000. The husband's income is insufficient to cover his liabilities without considering ordinary living expenses.

The legal issues the court had to address include the admissibility of evidence presented by both parties and the valuation of the husband's assets and liabilities. The wife's evidence was considered to lack probative value as it was voluble, opinionated, and argumentative. Additionally, the wife attempted to rely on an affidavit and other documents filed electronically early on the morning of the hearing, but permission was refused due to procedural fairness concerns. The husband presented evidence through affidavits and financial statements to demonstrate his financial situation. The court also had to determine the value of the husband's assets, particularly the property in which the parties lived while they cohabited, known as the Suburb C property.

The court discharged the orders made by the registrar and replaced them with others, not in the manner the wife proposed. The court considered the husband's evidence to be more reliable and probative, while the wife's evidence lacked substantial value. The court also denied the wife's attempt to introduce late-filed documents, emphasizing the importance of procedural fairness. The court's decision took into account the husband's substantial liabilities and the inadequacy of his income to cover these expenses. The final orders reflected a balanced approach, considering the husband's significant financial commitments and the overall fairness of the property settlement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons which follow, the orders made by the registrar are discharged and replaced by others, but not in the wholesale way the wife proposed.Evidence The husband relied upon:(a)the affidavit of his solicitor, Ms Parker, filed on 29 July 2022;(b)his affidavit filed on 29 July 2022;(c)the affidavit of his solicitor filed on 22 February 2023;(d)his affidavit filed on 24 February 2023; and(e)his Further Amended Financial Statement filed on 24 February 2023. The wife relied upon:(a)her Financial Statement filed on 10 November 2022;(b)the affidavit of her former solicitor, Mr E, filed on 8 December 2022;(c)her affidavit filed on 8 December 2022; and(d)her affidavit filed on 24 February 2023 (though the documents referred to as attachments in the text of the affidavit were not actually attached). These are not child-related proceedings (s 69ZM) so the rules of evidence apply. Although the wife’s evidence would mostly be inadmissible if the subject of any objection, no objection was ultimately pressed. Nevertheless, it lacks probative value because it is voluble, opinionated and argumentative. The wife also sought to rely upon an affidavit and other miscellaneous documents she filed electronically at 00.52 am and 04.27 am this morning (17 March 2023), but permission was refused because their admission into evidence would have denied the husband procedural fairness. Affidavits must be filed and served at least two business days before the hearing date (r 5.07 of the Rules), let alone that parties are ordinarily allowed to rely upon only one affidavit (r 5.08 of the Rules). The affidavit was served this morning, but the documents had not been served upon the husband at all.Short history The parties began cohabitation no earlier than mid-2014, married in 2016, and separated in early 2021. The relationship was not quite seven years in length. The husband commenced these proceedings seeking property settlement relief in August 2021. Despite the relative brevity of the parties’ relationship and the substantially greater capital contributions apparently made by the husband at the commencement of the relationship, the wife purports to maintain a claim to the majority of the net value of the aggregated matrimonial assets. The wife deposes that she has no assets of any significant value, but significant debt. The husband conducts professional practice through two corporations, which he controls. He and the corporations have interests in two parcels of real estate, though he is the sole owner of the property in which the parties lived while they cohabited (“the Suburb C property”). The husband’s assets and business interests secure significant debts owed to his bank and the Australian Taxation Office (“the ATO”). According to the husband’s unchallenged evidence, he pays over $3,000 per week to the ATO to service an agreed payment plan. He must also pay rent on the accommodation he leases and mortgage repayments on the home he owns, occupied by the wife at no cost. The husband has personal liabilities of around $1.5 million and one corporation he controls is indebted to the ATO for about $350,000. The cost of maintaining the husband’s liabilities outstrips his income, without taking into account ordinary living expenses.Possession of the Suburb C property

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	SYC 5636 of 2021
Judgment of:	AUSTIN J
Date of judgment:	17 March 2023
Catchwords:	FAMILY LAW – PROPERTY – Practice and procedure – Review of decision – Exclusive occupation – Where the wife advanced no proper legal reason for her sole and exclusive use of the husband’s home – Family violence injunctions – Where a family violence order made by a State court is already in force – Litigation funding – Where the husband’s financial position is precarious and the wife could not identify any asset in the husband’s possession that could be liquidated to fund her litigation costs – Interim property settlement – Where no reason was advanced by the wife to support an interim order compelling the husband to discharge the debts of both parties in advance of the trial – Spousal maintenance – Where the husband does not have the reasonable capacity to pay maintenance – Financial injunctions – Where the wife failed to demonstrate the husband should be restrained from discharging his usual directorial duties in relation to two corporations he controls – Orders made – No orders as to costs.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 69ZM, 79, 114AB, 117, 121 Income Tax Assessment Act 1936 (Cth) Pt III, Div 7A Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pts 6.1, 6.2, 6.3, rr 5.07, 5.08 Domestic and Personal Violence) Act 2007 (NSW)
Cases cited:	Gabel v Yardley (2008) FLC 93-386 Hearne v Street (2008) 235 CLR 125 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Sarto and Sarto (2022) 65 Fam LR 605 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Division:	Division 1 First Instance
Number of paragraphs:	54
Date of hearing:	17 March 2023
Place:	Newcastle
Solicitor for the Applicant:	Parker Law
The Respondent:	Litigant in person

SYC 5636 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR HOPKINS Applicant
AND:	MS ELLIOTT Respondent

order made by:	AUSTIN J
DATE OF ORDER:	17 March 2023