FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Elliott (No 6) [2024] FedCFamC1F 116
File number: SYC 5636 of 2021 Judgment of: CAMPTON J Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Where the wife seeks for the trial listed to commence this month to be adjourned, and for interlocutory relief as to spousal maintenance, litigation funding for the appointment of a forensic accountant and for her legal representation, injunctive relief for the preservation of property, the appointment of an expert valuer other than the single expert valuer, and leave to issue subpoena – Where the wife seeks an adjusting sum in the s 79 proceedings that exceeds the property of the parties – Where much of the relief as sought has already been determined by this Court – Where the balance of convenience does not favour an adjournment – Where the husband agrees to an injunctive order for the preservation of property pending final trial, save for the application of funds to litigation funding – Injunctive orders for the preservation of property made – Application otherwise dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 79, 117 and 102QB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.10
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144
Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128
Zschokke and Zschokke (1996) FLC 92-693; [1996] FamCA 79
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 4 March 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Ms Rusiti Solicitor for the Respondent: Parker Law ORDERS
SYC 5636 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ELLIOTT
Applicant
AND: MR HOPKINS
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.Pending further order, and until 22 March 2024, the husband be restrained from doing any act or thing to withdraw or deal with the balance of proceeds of sale of the property at B Street, Suburb C, held in a K Bank account in his name, number …18, presently in the sum of $620,897, save an except:
(a)To pay to his legal representatives $30,000 to be applied to the costs of these proceedings; and
(b)To comply with Order 2 hereof.
2.The husband pay directly to solicitors who file a Notice of Address for Service on behalf of the wife in these proceedings, by way of litigation funding of these proceedings, within 24 hours of the said solicitors providing him with a direction in writing pursuant to this order, the sum of $30,000, such sum to be only applied by the wife’s solicitors for work undertaken by them and disbursements incurred for the purposes…
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- Case
- [2024] FedCFamC1F 116
- Decision Date
CaseChat Overview and Summary
The Court found that much of the relief sought had already been addressed by the Court, and the balance of convenience did not favour an adjournment. However, the Court did make injunctive orders for the preservation of property, allowing the husband to use a portion of the proceeds for litigation funding but not to withdraw or deal with the balance. The Court also granted the wife leave to issue subpoenas for document production. The application for other forms of relief was dismissed.
The Court ordered that the husband was to be restrained from withdrawing or dealing with the balance of the proceeds of sale of a property, save for certain exceptions. The husband was also required to pay $30,000 to the wife's legal representatives for litigation funding purposes. Additionally, the wife was to provide her solicitors with a sealed copy of the orders and reasons for judgment. The wife's application to vacate the current trial dates was dismissed, and various procedural orders were made to facilitate the upcoming trial.
Orders
Orders of the court
SYC 5636 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS ELLIOTT
Applicant
AND:
MR HOPKINS
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1. Pending further order, and until 22 March 2024, the husband be restrained from doing any act or thing to withdraw or deal with the balance of proceeds of sale of the property at B Street, Suburb C, held in a K Bank account in his name, number …18, presently in the sum of $620,897, save an except:
(a) To pay to his legal representatives $30,000 to be applied to the costs of these proceedings; and
(b) To comply with Order 2 hereof.
2. The husband pay directly to solicitors who file a Notice of Address for Service on behalf of the wife in these proceedings, by way of litigation funding of these proceedings, within 24 hours of the said solicitors providing him with a direction in writing pursuant to this order, the sum of $30,000, such sum to be only applied by the wife’s solicitors for work undertaken by them and disbursements incurred for the purposes of these proceedings subsequent to the date of these orders.
3. The wife do all things to provide her solicitors with a sealed copy of these orders and reasons for judgment.
4. The wife’s application to vacate the current trial dates, being over three days in the Rolling List commencing from 18 March 2024, be dismissed.
5. The relief sought by the husband pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) as contained in paragraphs 3 and 4 of his Response to an Application in a Proceeding filed 1 March 2024, be adjourned to and consolidated with the financial trial listed to commence in the Rolling List in the week commencing 18 March 2024.
6. The wife file and serve any Response to the husband’s relief pursuant to s 102QB of the Act, an affidavit strictly in reply to that relief, on or before 12 March 2024.
7. For the purposes of the trial listed for the week commencing 18 March 2024:
(a) The husband have leave to rely upon the affidavit of Ms L filed 26 February 2024;
(b) The wife have leave to rely upon the affidavit of Mr M filed 27 February 2024, but only to the extent that affidavit does not replicate the affidavit from the same witness filed 19 February 2024, and upon her Amended Response to an Initiating Application filed 27 February 2024; and
Both parties are restrained from filing any other affidavit by way of the court portal or otherwise, without leave of the Court.
8. On or before 8 March 2024, the husband shall serve upon the wife a draft joint balance sheet to include all assets, liabilities, superannuation interests and financial resources as he understands to be suggested to be relevant and to include values he understands are alleged by each party.
9. On or before 13 March 2024, the wife shall make any additions to the balance sheet as required to reflect her contra allegations and any values that are agreed (if applicable).
10. Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy.
11. A final, settled version of the joint collaborative draft balance sheet shall be filed and served by the husband by no later than 14 March 2024.
12. On or before 14 March 2024, each party shall file and serve a Case Outline document and shall include:
(a) A list of material relied upon; and
(b) A brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(i) A summary of contributions claimed or contended for, and the percentage-based contributions contended for;
(ii) A summary of the relevant s 75(2) factors and the percentage-based adjustment contended for; and
(iii) Any further factors relevant to determining a ‘just and equitable’ division of property.
13. The husband and the wife are to exchange offers of settlement on or before 14 March 2024 and shall do all things to ensure that an offer of settlement remains open for acceptance until the conclusion of the trial;
14. The wife be granted leave to issue no more than 10 subpoena for the production of documents for the purposes of the trial directed to the husband’s accountants or accountants for the entities in which he has an interest, and to any bank or financial institution. Any such subpoena shall be made returnable no later than seven days before the commencement of the trial and documents produced are to be inspected prior to the first day of hearing.
15. Save and except as provided for by these orders, the wife’s Application in a Proceeding filed 28 February 2024 and the husband’s Response to an Application in a Proceeding filed 1 March 2024 are 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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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