Hunt & Atkins

[2020] FamCAFC 57

FAMILY COURT OF AUSTRALIA

HUNT & ATKINS AND ORS [2020] FamCAFC 57

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the applicant husband seeks to expedite the respondent wife’s appeal against final property and spousal maintenance orders – Where matter has lengthy history – Where applicant has age‑related difficulties – Where expedition is variously supported or unopposed – Application granted.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:	Mr Hunt
FIRST RESPONDENT:	Ms Atkins

SECOND RESPONDENT: Mr J Hunt

THIRD RESPONDENT: Mr D Hunt

FOURTH RESPONDENT: N Pty Ltd

FIFTH RESPONDENT: T Pty Ltd

SIXTH RESPONDENT: H Pty Ltd

SEVENTH RESPONDENT: Mr EE Hunt

FILE NUMBER: SYC 425 of 2012

APPEAL NUMBER: EA 10 of 2020

DATE DELIVERED: 12 March 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 11 March 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 December 2019

LOWER COURT MNC: [2019] FamCA 977

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Sexton Family Lawyers

SOLICITOR FOR THE RESPONDENTS: Mills Oakley

Orders dated 11 march 2020

1. That the hearing of Appeal EA 10 of 2020 be expedited.

2. That the costs of and incidental to this application be costs in the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunt & Atkins and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 10 of 2020
File Number: SYC 425 of 2012

Mr Hunt

Applicant

And

Ms Atkins

First Respondent

And

Mr J Hunt

Second Respondent

And

Mr D Hunt 

Third Respondent

And

N Pty Ltd 

Fourth Respondent

And

T Pty Ltd 

Fifth Respondent

And

H Pty Ltd 

Sixth Respondent

And

Mr EE Hunt

Seventh Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Application in an Appeal filed on 12 February 2020, Mr Hunt (“the husband”) seeks an expedited hearing of his former wife’s, Ms Atkins’s (“the wife”), appeal against final property and spousal maintenance orders made on 18 December 2019 (“the orders”). The second to seventh respondents are six individuals and entities affected by the orders.  The wife does not oppose expedition and the second to seventh respondents support it.

2. The orders provide, inter alia, that:

   ·    the husband pay the wife $964,683 within two months (Order 3),

   ·    in the event the husband fails to comply with Order 3, the disposition of certain “A” class shares held by three of the husband’s children from a previous relationship, Mr J Hunt, Mr D Hunt and Mr EE Hunt (the second, third and seventh respondents) are to be set aside (Order 7);

   ·    the husband indemnify the wife from and against all actions, claims, suits or demands against the wife in relation to any liability associated with the operations of N Pty Ltd, T Pty Ltd and H Pty Ltd and any other liability asserted to be owed by the wife to the applicant or any of the second to seventh respondents (Order 4); and

   ·    the husband pay the wife $550 per week by way of spousal maintenance (Order 10).

3. The husband was 84 years of age at the time of the trial.  In his affidavit filed in support of this application, he deposes that he is finding it increasingly difficult to recall events and is concerned about his “ability to usefully participate and give evidence” in the proceedings (husband’s affidavit filed 12 February 2020, paragraph 8).  He also deposes that he is “increasingly stressed and distressed” by the litigation and is “fearful about the impact of a further lengthy set of proceedings” (husband’s affidavit filed 12 February 2020, paragraph 7).  It is said that the difference between an appeal that is brought on in the ordinary course and an expedited hearing could be significant for the husband’s ability to properly participate in the proceedings.  Given his age and as far as it is possible, an expedited appeal is said to have the effect of reducing the impact of prolonged litigation on the husband’s health.

Background

1. In order to understand the context within which the husband makes this application, it is necessary to refer to some brief background facts. These are taken from the trial reasons and the documents filed by the husband in this application.

2. The husband was born in 1935.  The wife was born in 1955, she was 64 years of age at the time of the trial. 

3. In 1967, the husband commenced a business which he expanded over the following decades under entities known collectively as the Hunt Group (“the Group”).  N Pty Ltd is a company which holds the assets of the Group.

4. The wife met the husband through her employment at one of his franchises and the parties commenced cohabitation in April 2001. The parties married in 2003 and separated in 2011.  The parties both have children from previous relationships. There are no children of the marriage.

5. The parties have been involved in litigation before the Family Court for some eight years.  The husband commenced proceedings in 2012.  On 4 December 2014, a final property order was made.  The wife appealed that order.

6. In September 2015, the husband transferred 90 per cent of the controlling shares in N Pty Ltd to his sons, Mr J Hunt, Mr EE Hunt and Mr D Hunt.

7. On 24 March 2017, an interim spousal maintenance order was made requiring the husband to pay the wife the sum of $1,130 per week.

8. On 28 April 2017, the Full Court upheld the wife’s appeal against the orders made on 4 December 2014 and remitted the matter for rehearing.

9. The primary judge heard the second property hearing over five days in August and November 2019. The disposition of shares in September 2015 was a focal point of the rehearing. The wife sought a property settlement order of 40 per cent of the husband’s net assets and asserted that “N Pty Ltd (and other entities in the Group) are the “alter-ego” of the husband and consequently, the whole of the value of N Pty Ltd should be treated as that of the husband” [5]. In the alternative, she sought to set aside the N Pty Ltd disposition. Mr J Hunt, Mr EE Hunt and Mr D Hunt, as well as the associated entities of the Group, were joined to proceedings as the second to seventh respondents. The wife also sought an order that the husband pay her $2,421 per week by way of spousal maintenance.

10. The husband sought an order for the wife’s application to be dismissed and that no property settlement order be made.  The second to seventh respondents opposed the orders sought by the wife, so far as they are relevant to them.

11. Orders and reasons for judgment were delivered by the primary judge on 18 December 2019.

12. On 15 January 2020, the wife filed a Notice of Appeal seeking to have those orders set aside and new orders made in their place, or alternatively, for the matter to be remitted for rehearing before a judge of the Family Court.

13. On 4 February 2020, the husband filed a Notice of Contention.

The expedition application

1. Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the Appeal Division or another judge if there is no judge of the Appeal Division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the Family Law Rules 2004 (Cth) (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal.

2. However, r 12.10A of the Rules deals with applications for an expedited trial. It provides a useful guide to the approach to be adopted when determining the question of an expedited appeal. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The point being that there are appeals that have been filed ahead of this one, and if this appeal is expedited then a case that is currently waiting an appeal hearing will be deprived of that opportunity in what would otherwise be the order of priority. The potentially relevant factors referred to in the rules which should be taken into account in an appeal setting will be discussed.

3. Subparagraph (2)(a) concerns whether the applicant has acted reasonably and without delay in the conduct of the case.  I accept that the applicant husband has lodged his application for expedition in a timely manner.  The appeal is instituted by the respondent wife, and I have no doubt that whatever is required of the parties to bring an appeal on for an expedited hearing will be done.  This subsection weighs in favour of an order for expedition. 

4. Subparagraph (2)(b) concerns whether the application has been made without delay.  Nothing more need be said about this issue.

5. The next factor, subparagraph (2)(c) requires consideration of any prejudice to the respondent.  The wife does not oppose the order.  The only prejudice to her would be bringing forward those costs that she will need to incur so as to prosecute the appeal.  This would not stand in the way of expedition if it were otherwise warranted.

6. Subparagraph (2)(d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. Examples of what constitutes a ‘relevant circumstance’ are set out in r 12.10A(4)(a) – (g). Of these, the husband, in effect, focused on subparagraph (a), which is concerned with the age, physical or mental health of a party or witness that would affect the availability or competence of the party or witness. The submissions made by the husband focussed on the impact of his age which, it is emphasised, is impacting his ability to recall events and give evidence.

7. The husband also focussed on subparagraph (g), which concerns whether an expedited trial would avoid serious emotional or psychological trauma to a party the subject of the case.  As mentioned earlier, the husband deposes that over the course of the parties’ eight years of litigation, he has become “increasingly stressed and distressed about ongoing proceedings” (husband’s affidavit filed 12 February 2020, paragraph 7).  An expedited appeal is said to have the effect of reducing the consequential emotional and physical distress on him.  Along with the submissions concerning the difficulty he is having recalling events, there is some force in this.

8. I am conscious that these proceedings commenced in 2012 and have been in this Court for a very long time.  I also take into account the husband’s age and his age‑related health issues.  The prolonged litigation is undoubtedly a source of stress for all parties involved, the question for me is whether there is any real difference in terms of that stress and its impact on, in this instance, the husband’s health, if the matter is expedited.  My understanding is that the difference between an expedited appeal, and an appeal brought on in the ordinary course, is some months.  There is sufficient evidence before me that a difference of several months may possibly impact on husband’s stress levels ability to deal with the proceedings.

9. In relation to the Notice of Appeal filed on 15 January 2020, the wife asserts six grounds of appeal. All that needs to be said at this point is that the wife raises a number of challenges to his Honour’s reasons, including in relation to matters of principle but also the exercise of discretion. Properly understood, these challenge findings in relation to the husband’s interest in N Pty Ltd and T Pty Ltd and for failing to find that these companies were the alter ego of the husband (Grounds 1 and 2). It is also contended that the primary judge erred by failing to make an order pursuant to s 106B of the Act (Ground 3) and including the wife’s personal debts in the parties’ asset pool (Ground 6). By Grounds 4 and 5, the wife challenges the primary judge’s discretion in calculating her contributions and adjustment pursuant to s 75(2). It could not be said that this appeal is so devoid in merit that that the grounds should influence the question of whether or not an order for expedition should be made.

Conclusion and Costs

1. An order for expedition is appropriate and for these reasons I made such an order on 11 March 2020.    

2. The costs of the application will be costs in the appeal.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 12 March 2020.

Associate:

Date:  12 March 2020