Hopkins & Elliott (No 3) - [2023] FedCFamC1F 531

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Elliott (No 3) [2023] FedCFamC1F 531

File number(s): SYC 5636 of 2021

Judgment of: CAMPTON J

Date of judgment: 29 June 2023

Catchwords: FAMILY LAW – REVIEW – Application for the review of an order made by a judicial registrar enforcing a primary order for the wife to vacate a property legally owned by the husband – Where the wife sought to stay the primary order and her application for a stay was refused – Where the wife has commenced current appeal proceedings against the primary order – Where the wife has filed a further Application in a Proceeding and an Application in an Appeal seeking to stay the primary order – Where the wife’s review application is in reality an attempt to relitigate her application to stay the primary order – Application for review dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 12.06, 14.07

Division: Division 1 First Instance

Number of paragraphs: 39

Date of hearing: 29 June 2023

Place: Sydney

Counsel for the Applicant: Ms Rusiti

Solicitor for the Applicant: Parker Law

Solicitor for the Respondent: Mr Neumann, Eddy Neumann Lawyers
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:

CAMPTON J

DATE OF ORDER:

29 JUNE 2023

THE COURT ORDERS THAT:
1.The Application for Review of the wife filed 19 June 2023 from an order made by a judicial registrar on 6 June 2023 is dismissed.
2.That a warrant for possession of the property pursuant to r 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) is issued today in favour of the husband as to the property known as B Street, Suburb C NSW.
3.I stay release of the warrant pursuant to [the above order] until 5.00 pm on 4 July 2023.
4.The Application for Enforcement for the husband as amended on 16 May 2023 and the Application in a Proceeding filed 22 May 2023 is otherwise dismissed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Hopkins & Elliott…

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: [2023] FedCFamC1F 531
Decision Date

CaseChat Overview and Summary

The matter of Hopkins & Elliott (No 3) involved the husband and wife, who were engaged in a protracted legal dispute concerning their property interests and spousal maintenance. The husband filed an Initiating Application in the Federal Circuit Court on 5 August 2021, seeking declarations regarding their property interests and an injunction to support those declarations. The wife responded on 10 November 2022, requesting a 70 per cent share of the marital asset pool, including superannuation, and the transfer of the Suburb C property to her. Additionally, she sought $4,000 per week in periodic spouse maintenance for five years, indexed to the Consumer Price Index. The case was transferred to the Federal Court on 14 December 2022.

The court had to determine several legal issues, including the date of the commencement of the parties' cohabitation and their separation, the appropriate division of their property, and the wife's entitlement to spousal maintenance. The court also had to consider the husband's application to provide documents from the proceeding to the workers’ compensation insurer and its lawyers defending the wife's claim in separate litigation. Furthermore, the court needed to address the allegations of family violence and breaches of disclosure obligations made by both parties.

The court, in its reasoning, concluded that the wife should vacate the Suburb C property within one month and be restrained from entering it thereafter. The court found that the wife's claims for property adjustment and spousal maintenance were not substantiated based on the evidence presented. The court granted the husband's application to provide documents to the workers’ compensation insurer, considering it necessary for the fair administration of justice. The court also noted the extensive history of litigation between the parties, which included multiple hearings, appeals, and separate legal proceedings.

The final orders of the court required the wife to vacate the Suburb C property and restrained her from entering it, denied her claims for property adjustment and spousal maintenance, and granted the husband's application to provide documents to the workers’ compensation insurer. The court's decision reflects its assessment of the evidence and legal arguments presented by both parties in the complex and lengthy litigation between them.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The orders made by the judicial registrar are by way of enforcement of an order made by Austin J on 17 March 2023 as follows:2.Within one month of the date of these orders the [wife] shall forthwith vacate the real property and improvements known as [B Street, Suburb C], NSW (“the property”) and is thereafter restrained from entering upon the property. BACKGROUND The proceeding was commenced by the husband filing an Initiating Application on 5 August 2021 in what was then the Federal Circuit Court, seeking a range of declarations as to the property interests of the parties consistent with those identified at that time as held at law, and orders by way of injunction supporting those declarations. Implicitly, it was and remains the husband’s contention that there is no warrant for adjustment of property as between he and the wife. After a series of orders and directions, the wife belatedly filed a Response to the husband’s Initiating Application on 10 November 2022. The wife seeks, by way of that Response, adjustment of the property interests of the parties such that she receive 70 per cent “of the value of the full marital asset pool (including superannuation)”, and as part of that division, the husband to transfer to her the unencumbered property at B Street, Suburb C (“the Suburb C property”). She additionally sought orders for her periodic spouse maintenance in the sum of $4,000 per week for a period of five years indexed to the Consumer Price Index. The proceeding was transferred to this Court on 14 December 2022. The parties are in dispute as to the date of their cohabitation and of separation. Doing the best I can on a reading of the material of the husband, he contends the parties commenced cohabitation when they married in 2016 and separated on 2 June 2020. The wife contends the parties commenced cohabitation in June 2014 and separated in February 2022 (being after the proceeding commenced). There are no children of the marriage. The litigation between the parties has not been restricted to that pursuant to the Family Law Act1975 (Cth) (“the Act”). They have been engaged in Supreme Court litigation as to a caveat, and in litigation as to a workers’ compensation claim of the wife against a corporate entity in which the husband has an interest, D Pty Ltd. Orders were made by Austin J on 17 March 2023 granting the husband leave to provide documents filed in this proceeding to the workers’ compensation insurer and its lawyers defending the claim of the wife in that litigation. The parties make competing allegations as to family violence, as to the unilateral use and application of substantive funds by way of the predispositions of property in an attempt to defeat substantive claims and as to failures to comply with disclosure obligations. An inspection of the Court’s file reveals that these parties have consumed the following: (a)11 case management, duty list and directions hearings events before delegated judicial officers; (b)four interim hearings; (c)two enforcement hearings; (d)one completed set of appeal proceedings; and (e)a current set of appeal proceedings.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 5636 of 2021
Judgment of:	CAMPTON J
Date of judgment:	29 June 2023
Catchwords:	FAMILY LAW – REVIEW – Application for the review of an order made by a judicial registrar enforcing a primary order for the wife to vacate a property legally owned by the husband – Where the wife sought to stay the primary order and her application for a stay was refused – Where the wife has commenced current appeal proceedings against the primary order – Where the wife has filed a further Application in a Proceeding and an Application in an Appeal seeking to stay the primary order – Where the wife’s review application is in reality an attempt to relitigate her application to stay the primary order – Application for review dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 12.06, 14.07
Division:	Division 1 First Instance
Number of paragraphs:	39
Date of hearing:	29 June 2023
Place:	Sydney
Counsel for the Applicant:	Ms Rusiti
Solicitor for the Applicant:	Parker Law
Solicitor for the Respondent:	Mr Neumann, Eddy Neumann Lawyers

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

order made by:	CAMPTON J
DATE OF ORDER:	29 JUNE 2023