Humphrey & Humphrey
[2022] FedCFamC1F 456
•28 June 2022
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, the evidence adduced for that event is not to be considered in these Reasons for Judgment;
(c)of its own initiative, the Court listed the matter on 31 March 2022 to invite the parties to indicate whether, considering the time that had elapsed, either party wishes to adduce further evidence, particularly in respect of the parenting proceedings; and
(d)both parties indicated they did not seek to adduce further evidence about the parenting issues, but the wife, through her Counsel Ms Oakley, indicated she had instructions to make an Application to re-open the property proceedings.
As a result, on 29 April 2022, the wife filed an Application in a Proceeding seeking the following orders:
Leave to Re-Open
1.That the Applicant Wife have leave to re-open the property matter and put into evidence the following affidavits in relation to property valuation issues:
a) Affidavit of [Mr B] of [C Valuations] filed 29 April 2022, with respect to the real properties at:
i.[K Street, Suburb E];
ii.[L Street, Suburb M];
b) Affidavit of [Mr F] of [C Valuations] filed 29 April 2022, with respect to the real properties at:
iii.[N Street, Suburb P];
iv.[Q Street, Suburb R];
v.[S Street, Suburb G];
vi.[T Street, Suburb U]; and
c) Affidavit of [Mr H] of [D Valuations] filed 29 April 2022 with respect to the cabins located at sites [1 and 2 V Street, Suburb W]; and
d) Affidavit of [Mr H] of [D Valuations] filed 29 April 2022 annexing a letter correcting his expert witness report.
Directions for Submissions
2.In the event that the Wife’s application to re-open is consented to by the Husband:
e) That within seven (7) days, the Applicant Wife file and serve any further written submissions in respect of the issue of re-opening and the further evidence adduced pursuant to these Orders.
f) That within fourteen (14) days, the Respondent Husband file and serve any further written submissions in respect of the issue of re-opening and the further evidence adduced pursuant to these Orders.
g) That within seven (7) days of being served with the Respondent Husband’s submissions (if any), the Applicant Wife shall file and serve any written submissions strictly in reply to those submissions.
3.In the event that the Wife’s application to re-open is opposed by the Husband, that the Court list the application to re-open for determination before the Honourable Justice Baumann on the earliest possible date prior to 27 May 2022.
4.Such other Orders as the Court deems meet.
In support of that Application, the wife relied upon her affidavit and affidavits by a number of real estate valuation experts, all filed 29 April 2022.
The wife’s Application to re-open was listed before me on 30 May 2022, by which date the husband had filed a Response supported by his affidavit (both filed 27 May 2022), essentially opposing the Application to re-open, but in the alternative seeking a bifurcation of the parenting and financial proceedings. The terms of the husband’s Response was as follows:
1.That the Application in a Proceeding filed on 29 April 2022 be dismissed.
2.Costs.
IN THE ALTERNATIVE:
3.That the property settlement proceedings be split from the parenting proceedings.
4.That the parties be granted leave to reopen the evidence in respect of the property settlement proceedings only.
5.That the parties shall jointly instruct [X Company] to update their valuation of the real properties located at [K Street], [Suburb E] and [L Street], [Suburb M], and for that purpose:
a. The parties shall settle and serve upon the joint valuer a joint letter of instruction within 7 days of the date of these orders;
b. If the parties are unable to agree or for any reason the joint instructions cannot be obtained then the parties shall each provide a letter of instruction to the joint valuer within a further 7 days;
c. The parties shall comply with any reasonable request by the joint valuer to provide information, documents, or access to the real properties for the purpose of preparing the report;
d. The parties shall be equally responsible for the cost of the joint expert.
6.That within 21 days of the date of these orders each party must (if they have not already done so) provide to the other party a copy of any documents to which the duty of disclosure applies in respect of the property settlement proceedings.
7.That the matter be listed for a further day of hearing in relation to the property settlement proceedings.
8.That directions be made for the serving of Affidavits and updating Financial Statements
Each party relied on written submissions which have been considered. If in these Reasons I do not refer specifically to a submission that should not be construed as having ignored the submission.
BIFURCATION OF PROCEEDINGS
I accept that further delay in delivering reasons in the parenting dispute, if the property proceedings are re-opened, is not in the children’s best interests. The husband submits that the expenses for the children he is meeting (paragraph 54) and what he asserts is the suffering the children are experiencing from the uncertainty of their future parenting regime (paragraph 60) compel immediate delivery of parenting reasons.
The wife submits at paragraph 40(d), in response, that:
The ‘adverse effects’ on the children in a further delay (even if it were a relevant consideration in the re-opening of the property matter and even if there was evidence to support that assertion) is met by the court delivering its reasons on parenting and re-opening the property matter separately.
I agree with the wife’s submission in this respect and will deliver separate parenting reasons by 2.15pm on 29 July 2022.
SHOULD THE PROPERTY PROCEEDINGS BE RE-OPENED?
It is of course embarrassing that a delay in delivery of reasons has caused parties to incur costs in seeking to re-open proceedings. Of course not only the wife, but by responding, the husband, have incurred costs.
However, as authorities referred to by both Counsel, whilst using different language, confirm the “guiding principle in deciding whether to grant leave to re-open is whether or not the interests of justice are better served by allowing or rejecting the application” (EB v CT (No 2) [2008] QSC 306 at [2]) (Applegarth J)).
Although the recent Full Court decision of Halstron & Halstron [2022] FedCFamC1A 65 does not have totally similar facts, the principles recently summarised in this decision identify in the exercise of a discretion to re-open, the Court should consider and take into account:
(a)the prejudices of the Respondent;
(b)the need for finality; and
(c)whether further evidence, if accepted, would most probably affect the result of the case.
The Full Court, in Halstron at [36] citing Hsiao v Fazarri (2020) 383 ALR 446 at [50] considered the first step in an analysis of a property adjustment case is to “identify and value, as the evidence could allow, the parties’ existing legal and equitable property interests”.
The wife submits that:
(a)the husband did not agree to the single experts (who’s evidence is before the Court from the trial) updating the valuations;
(b)as a result, the wife procured the updated evidence, which reveals on those opinions a significant increase in value of properties as follows:
(i)K Street, Suburb J (“K Street property”) – $850,000 to $1,800,000;
(ii)L Street, Suburb M – $565,000 to $825,000;
(iii)Q Street, Suburb R – $225,000 to $300,000;
(iv)N Street, Suburb P – $280,000 to $350,000;
(v)Y Street, Suburb G – $240,000 to $320,000; and
(vi)Accommodations (depending on the scenario adopted) – $20,000 to $60,000, or $75,000 to $165,000
(c)The wife at paragraph 5 of the written submissions identifies, based on the orders sought by the parties at the hearing, how the potential “cash payment” to the wife would increase significantly (assuming the husband retains as he seeks, the K Street property).
I accept those estimates ultimately rely upon the Court accepting evidence of increases in valuation of the magnitude opined by the updated valuations.
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.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 June 2022
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