Humphrey & Humphrey - [2022] FedCFamC1F 456

Federal Circuit and Family Court of Australia
(DIVISION 1)
Humphrey & Humphrey [2022] FedCFamC1F 456

File number(s): BRC 4211 of 2019

Judgment of: BAUMANN J

Date of judgment: 28 June 2022

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – judgment in relation to parenting and property matters reserved – Application to re-open on property matter granted – Application to bifurcate the proceedings granted

Legislation: Family Law Act 1975 (Cth)

Cases cited:
EB v CT (No 2) [2008] QSC 306

Halstron & Halstron [2022] FedCFamC1A 65

Hsiao v Fazarri (2020) 383 ALR 446

Division: Division 1 First Instance

Number of paragraphs: 19

Date of last submission/s: 3 June 2022

Date of hearing: 30 May 2022

Place: Brisbane

Counsel for the Applicant: Ms K Oakley

Solicitor for the Applicant: Evans Brandon Family Law

Counsel for the Respondent: Mr C Minnery

Solicitor for the Respondent: Naughton McCarthy Family Lawyers
ORDERS

BRC 4211 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HUMPHREY

Applicant

AND:
MR HUMPHREY

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

28 June 2022

THE COURT ORDERS:
1.That the parenting proceedings and the property proceedings be bifurcated.
2.That the pronouncement of final parenting orders and Reasons for Judgment be delivered by 2.15pm on 29 July 2022.
3.That the property proceedings be re-opened and be listed for Case Management Hearing at 9.30am on 7 July 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

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 Humphrey & Humphrey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:

Evidence in hearing in respect of parenting and property disputes between the wife Ms Humphrey and the husband Mr Humphrey was completed in June 2020.
Thereafter:
(a)written submissions were filed, with the last written submissions filed on 21 December 2021. Unusually in this matter, the financial proceedings were the subject of no cross examination, with the parties agreeing that they would rely on the affidavits and written submissions only;
(b)on 28 January 2021, the Court was engaged to consider briefly, a parenting issue, however the parties, with the Court’s assistance, resolved that matter. Neither party contended that the Applications and evidence at that time should be regarded as “re-opening” and as a result,…

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 Humphrey & Humphrey

Details

AGLC: Humphrey & Humphrey [2022] FedCFamC1F 456
Case: [2022] FedCFamC1F 456
Decision Date: 28 June 2022

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) presided over a case between Ms Humphrey and Mr Humphrey, concerning the bifurcation and reopening of evidence in parenting and property matters. The husband sought to retain the K Street property and argued that the delay in proceedings would prejudice him more than the wife, as he had continued to meet the mortgage and expenses. The husband also disputed the wife's valuation evidence. The court accepted that the potential increase in property valuations justified reopening the evidence, and the husband's continued payment of expenses should be considered a post-separation contribution to preserving the property.

The legal issues revolved around whether the court should allow the reopening of evidence in the property proceedings and if it was appropriate to bifurcate the parenting and property proceedings. The court granted the application to reopen the evidence in the property proceedings and to bifurcate the proceedings. The court recognised that further costs would be incurred in adducing new evidence or testing existing evidence, but it deemed it necessary to allow the reopening of evidence to better serve the interests of justice.

The court's reasoning was that the potential increase in property valuations justified reopening the evidence, and the husband's continued payment of expenses should be considered a post-separation contribution to preserving the property. The court granted the application to bifurcate the parenting and property proceedings, allowing both parties to consider the implications of this decision. The court ordered that the parenting proceedings and property proceedings be bifurcated and set a timetable for the case management hearing to discuss the next steps in the property proceedings.

The final orders of the court were to bifurcate the parenting and property proceedings, deliver the final parenting orders by 2.15pm on 29 July 2022, reopen the property proceedings, and list the case management hearing for 9.30am on 7 July 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane. The form of the order is subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

BRC 4211 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HUMPHREY

Applicant

AND:

MR HUMPHREY

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

28 June 2022

THE COURT ORDERS:

1. That the parenting proceedings and the property proceedings be bifurcated.

2. That the pronouncement of final parenting orders and Reasons for Judgment be delivered by 2.15pm on 29 July 2022.

3. That the property proceedings be re-opened and be listed for Case Management Hearing at 9.30am on 7 July 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The husband submits that:(a)the husband wishes to retain the K Street property so its current valuation is not relevant;(b)as the husband is the party, noting he continues to occupy the property, who has continued to meet solely the mortgage and other expenses, he is prejudiced by the delay more than the wife, who he submits will suffer “little net change to the applicant’s final position on judgement even without the re-opening of the evidence” (submissions at [61]); and(c)the husband disputes (submissions 27 to 45) the valuation evidence relied upon by the wife.CONCLUSION Whilst I accept if, unlike at the final hearing, the parties are not able to agree on valuations for the various real estate interests, further significant costs in adducing for example, adversarial evidence or new single expert evidence and potentially testing that evidence, will be incurred, I am satisfied the potential increase in the valuations are such that the interests of justice are better served by allowing the Application to re-open rather than rejecting it. Clearly the husband’s continued payment of expenses, whilst occupying the K Street property, should be properly considered as a further post separation contribution directed, he asserts, to the preservation of the property.NEXT STEP Having decided to re-open the evidence in the property proceedings, it is now appropriate to allow both parties to consider such issues as:(a)should a new “single expert” be appointed to value all or some of the interests or is the husband’s prepared to accept the new evidence produced by the wife?(b)does either party wish to adduce adversarial evidence, in which case issues of leave to do so may arise?(c)does either party wish to cross-examine valuers and or the parties?(d)a timetable (including for submissions) for all this to occur. As a consequence, the matter in respect of property proceedings alone will be listed for a Case Management Hearing at 9.30am on 7 July 2022.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 4211 of 2019
Judgment of:	BAUMANN J
Date of judgment:	28 June 2022
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – judgment in relation to parenting and property matters reserved – Application to re-open on property matter granted – Application to bifurcate the proceedings granted
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	EB v CT (No 2) [2008] QSC 306 Halstron & Halstron [2022] FedCFamC1A 65 Hsiao v Fazarri (2020) 383 ALR 446
Division:	Division 1 First Instance
Number of paragraphs:	19
Date of last submission/s:	3 June 2022
Date of hearing:	30 May 2022
Place:	Brisbane
Counsel for the Applicant:	Ms K Oakley
Solicitor for the Applicant:	Evans Brandon Family Law
Counsel for the Respondent:	Mr C Minnery
Solicitor for the Respondent:	Naughton McCarthy Family Lawyers

BRC 4211 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HUMPHREY Applicant
AND:	MR HUMPHREY Respondent

order made by:	BAUMANN J
DATE OF ORDER:	28 June 2022