Ishtar & Hamad
[2024] FedCFamC2F 1345
•26 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ishtar & Hamad [2024] FedCFamC2F 1345
File number(s): SYC 5054 of 2023 Judgment of: JUDGE STREET Date of judgment: 26 September 2024 Catchwords: FAMILY LAW – Procedural - threshold issues - hearing vacated – fixed for final property hearing – costs reserved Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 26 September 2024 Place: Sydney Counsel for the Applicant: Mr Ang Solicitor for the Applicant: Mj Woods & Co Solicitor for the Respondent: Ms A Jenkins of Russell Kennedy Lawyers NSW ORDERS
SYC 5054 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ISHTAR
Applicant
AND: MR HAMAD
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Orders 9 to 29 made on 20 May 2024 are vacated.
2.The matter is fixed for a final property hearing commencing at 10:00am on 19 May 2025 continuing till 21 May 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
3.The applicant is directed to file and serve an amended trial affidavit application on or before 28 November 2024.
4.The respondent is directed to filed and serve a trial affidavit response on or before 12 December 2024.
5.The applicant is directed to file and serve a consolidated trial affidavit any affidavit evidence that the respondent wishes to rely on or before 20 March 2025
6.The respondent is directed to file and serve a consolidated trial affidavit any affidavit evidence that the respondent wishes to rely on or before 17 April 2025
7.The parties are directed to file and serve an agreed balance sheet on or before 1 May 2025.
8.The applicant is directed to file and serve a case outline on or before 6 May 2025.
9.The respondent is directed to file and serve a case outline on or before 13 May 2025.
10.Leave is granted to the parties to provide any tender bundle including with exhibits with affidavits material relied upon via email or USB seven (7) days prior the hearing.
11.Leave is granted to the parties to issue more than five (5) subpoenas.
12.Leave is granted to the parties to have photocopying access to the material produced under subpoena, subject to any proper notice of objection.
13.Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
14.Costs occasioned by reason of the vacation of the order of the hearing of the interim hearing date, fixed for today by the orders made on the 20 May 2024 are reserved.
THE COURT NOTES THAT:
A.The court expects the parties after the filing of the amended application and such further financial disclosure, as is proper, to have meaningful discussion, not just in relation to the merits, given the small size of the estate, but also in relation to whether there is any necessity to join other parties.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 12 July 2023 by the applicant wife (“the wife”), who is still married to the respondent husband (“the husband”). There appears to have been a property that was being occupied as the matrimonial home by the wife that was then the subject of acquisition, or at least was the subject of acquisition after what is said to be the end of the relationship between the parties, albeit they remained married. There is a partnership agreement that was entered into in late 2019 by the husband, containing no express assignment of his property interests, purporting to represent some form of apportionment of interest in the property. Whether the partnership agreement in fact creates any such assignment or purported assignment is not a matter the Court has, at this stage, had to determine.
However, it is apparent that the property has been the subject of orders made by a Registrar that permitted its sale to one of the purported partners following a valuation. It is not apparent whether the interest of the partner was disclosed to the Registrar who made the order in respect of the purported consent orders. However there appears to have been a sale of that property. The wife and children have vacated that property. On one version of the circumstances, it appears that there is a small net pool of approximately $200,000.00 after paying out the Commonwealth Bank of Australia that had a mortgage of about $1,277,000.00.
The Court was informed by Mr Ang of Counsel on behalf of the wife that he has only just come into the case and has not yet had an opportunity to fully review the material. Mr Ang asked for an adjournment.
The Court was taken to the orders that were made by Judge Neville on 20 May 2024, fixing the matter for hearing. Those orders identified that the proceedings were fixed for hearing on the following threshold issues:
9. The proceedings are listed for trial for 2 days on 26 and 27 September 2024 at 10.00am via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth) on the following threshold issues:
(a) Whether leave is required for the wife to commence proceedings out of time and, if so, whether it ought be granted; and
(b) The husband’s Stanford argument
It is properly acknowledged by Ms Jenkins solicitor for the husband, that there is no such threshold issue as identified in paragraph (a). In relation to paragraph (b), Ms Jenkins identified that it was the just and equitable threshold, in terms of it being appropriate to exercise a power under s 79 of the Family Law Act 1975 (Cth) (“the Act”), that was sought to be agitated by paragraph (b). The language used in paragraph (b) does not identify whether it is asserted on a summary basis that the Court can determine that threshold issue or otherwise. The Court is not persuaded that the threshold issue in relation to paragraph (b) is properly articulated and identifies an appropriate issue for determination as a separate question. On that basis alone the Court would vacate order 9 made on 20 May 2024.
The Court is not in a position at this stage to identify the net pool of assets and it appears on one view that it may be very small. The size of the pool impacts on the assessment, if there is one, in relation to the contributions and the other future matters that the Court must take into account. Given the children involved, it would have been a fairly low threshold, if it had been formulated as a proper question in relation to just and equitable, and if in fact there are assets, notwithstanding the contention that the property was acquired after the end of the relationship.
It appears that the husband, at least up until the sale of the property, continued to meet the outgoings so that the wife and children could remain in the home, which are obvious contributions by the husband. The needs in terms of the future and the assessment after the separation, if there has been one at an earlier point of time, must take into account the children involved from the marriage. The fact that the parties have also remained married is a matter that impacts upon the alleged threshold issue.
The Court is not in the position to determine any of the steps that are required under s79 of the Act at this stage of the proceedings. Ms Jenkins properly acknowledged that the husband’s evidence in relation to the full issues under s 79 of the Act is not on.
The Court was informed by Mr Ang that he was not in a position, given issues that have been raised as to alleged disclosure and other assets, to be able to usefully engage in any discussion at this point of time. The Court accepts the assertion of experienced Counsel for the wife in that regard.
There is a further complication from the partnership agreement as to the possibility of alleged interests of others in the proceeds of sale that appears to be not yet accepted. The Court was taken to orders that do identify, after payment of the mortgagee, the holding of the balance in the conveyancer's trust account. Given the small pool, whether any such interests are advanced or alleged will hopefully be the subject of clarity after an amended application has been put on and Mr Ang and his instructing solicitor have been able to have further discussions with Ms Jenkins which the Court expects to take place this year.
In all circumstances, the Court is satisfied that it is necessary in the interests of the administration of justice to vacate the determination of the threshold issues and reserve the issue of costs.
For these reasons the Court makes the above orders identifying a final hearing date for the property matter.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 2 October 2024
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