Jakubik & Jakubik

Case [2023] FedCFamC1F 415

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Jakubik & Jakubik [2023] FedCFamC1F 415

File number(s): BRC 4270 of 2021
Judgment of: CAREW J
Date of judgment: 24 May 2023
Catchwords:

 FAMILY LAW – PRACTICE AND PROCEDURE –Registrar – Review of decision – Where a Senior Registrar dismissed the wife’s application in a proceeding relating to the sale of the former matrimonial home and distribution of sale proceeds – Where the wife sought a review of that order – Where the husband proposes to make a number of payments from the sale proceeds which he contends fall within circumstances authorised by a previous court order – Where the wife contends that the sale proceeds are the only remaining asset of any real value and if the husband proceeds to pay the debts identified by him, her claim for property settlement will be defeated – Where part of the wife’s application (for spouse maintenance and repayment of funds already disbursed)  is adjourned to trial – Where wife’s application for litigation funding dismissed – Order made permitting particular debts proposed to be paid from sale proceeds by the husband, with the balance of sale proceeds to be retained in the wife’s solicitors trust account pending trial.

FAMILY LAW – PROCEDURAL – Oral application made by the wife to amend the order sought in her Application in a Proceeding and subsequent Application for Review to the order sought in her case outline – Where circumstances changed following the filing of the Application in a Proceeding such that if an order were to be made in the terms sought, it would be largely otiose – Application granted.   
Legislation:

 Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Biltoft and Biltoft (1995) FLC 92-614

Breen & Breen (1990) 65 ALJR 195

Collins & Collins (1985) FLC 91–603

Harris and Harris (1993) FLC 92–378 603

Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93–143

Kryiakos & Kryiakos (2013) FLC 93-528

PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123

Penfold v Penfold (1980) 144 CLR 311

Rakete & Rakete (2012) FamCA 267

Re JJT: Ex parte Victoria Legal Aid (1998) 195 CLR 184

Stanford v Stanford (2012) 247 CLR 108

Strahan & Strahan (Interim Property Orders) (2011) FLC 93–466

Wilson & Wilson  (1989) FLC 92–033

Zschokke & Zschokke  (1996) FLC 92–693

Number of paragraphs: 119
Date of hearing: 12 May 2023
Place: Brisbane
Counsel for the Applicant: Mr Alexander
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel for the Respondent: Mr Hackett
Solicitor for the Respondent: Hirst & Co

ORDER

BRC 4270 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS JAKUBIK

Applicant
AND:

MR JAKUBIK

Respondent

order…

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Details
AGLC
Jakubik & Jakubik [2023] FedCFamC1F 415
Case
[2023] FedCFamC1F 415
Decision Date

CaseChat Overview and Summary

In the matter of Jakubik & Jakubik, the wife sought various orders relating to spousal maintenance and the distribution of proceeds from the sale of a property. The case involved a complex procedural history, including multiple applications and amendments. The wife filed an initial application on 16 March 2023, which was subsequently amended on 4 April 2023. Despite the amendment, the wife's application to rely on the amended version was dismissed. The wife then filed an application for review on 11 April 2023, seeking to challenge the order made on 4 April 2023. This application for review was heard and determined by a Judge of the Federal Circuit & Family Court of Australia.

The central legal issues in the case involved the wife's entitlement to amend her application, the validity of the orders made by the Senior Registrar, and the appropriateness of the orders made in the application for review. The Court had to consider whether the wife should be granted leave to amend her application in accordance with her case outline, and whether the orders made by the Senior Registrar and the Judge were justified. Additionally, the Court needed to determine the appropriate treatment of the proceeds from the sale of the property in question.

The Court concluded that the wife should be granted leave to amend both her application in a proceeding and the order sought in her application for review. The Court found that the husband had been on notice since 11 April 2023 that the wife intended to seek variation or discharge of the 2021 order if necessary, and that he had also been aware since 4 April 2023 of the wife’s claims for arrears of maintenance and lump sum spouse maintenance. The Court reasoned that dispensing with compliance with certain procedural rules was justified in the interests of justice to enable the dispute to be determined comprehensively. The Court also noted that it must grant all remedies to which any party appears to be entitled in respect of a legal or equitable claim, so that all matters in controversy between the parties may be completely and finally determined.

The Court's orders preserved the balance of the sale proceeds of the property in the trust account of the wife’s solicitors, pending further orders. The Court also directed that the wife’s interim and interlocutory application, along with any anticipated applications by the husband for interim or interlocutory orders, be listed together for a priority hearing. Costs of the review application were reserved for determination at trial.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, some of the relief sought by the wife (arrears of spouse maintenance, lump sum spouse maintenance, and repayment of funds already dispersed by the husband) will be adjourned to trial. Particular debts proposed to be paid from the sale proceeds by the husband are permitted payments under an earlier order and the balance will be retained in the wife’s solicitor’s trust account pending trial. RELEVANT PROCEDURAL BACKGROUND It will be of assistance in this particular case to set out the relevant procedural background. Application in a Proceeding filed 16 March 2023 On 16 March 2023, the wife filed an application in a proceeding in which she sought the following order (summarised): On 30 March 2023, an order was made by consent appointing Mr B as a single expert to prepare a family report with the payment of his fees to be paid from the sale proceeds of the home, and listing the application in a proceeding filed 16 March 2023 for hearing on 6 April 2023. Amended Application in a Proceeding filed 4 April 2023 On 4 April 2023, the wife purported to amend her application in a proceeding filed 16 March 2023. Rather unhelpfully, the amended application carries on the numbering from the previous application (although misnumbers many of the paragraphs that are struck through) and includes paragraphs underlined in red that are not in fact amended. The following amended order is sought (summarised): It is common ground that the wife’s application to rely upon an amended application filed 4 April 2023 was dismissed although no order to that effect is included in the order made by the Senior Registrar. In disposing of the Application filed 16 March 2023, the Senior Registrar made the following order (summarised): Apparently, the Senior Registrar gave reasons for the decision but they were not reduced to writing and there is no transcript of the hearing. Application for review filed by the wife on 11 April 2023 At the time of filing of the application for review (of the order made on 4 April 2023), on 11 April 2023 no order had issued from the Court, however the wife stated her intention to review the order in its entirety “save for the orders with respect to the appointment of the independent children’s lawyer”. The application was said to be urgent as “orders are sought to restrain the husband from dealing with the net proceeds of sale of a property which is due to settle on 13 April 2023”. In the event that the application for review succeeded, a different order was sought in the application for review to that set out in the application in a proceeding filed 16 March 2023 (and different in some respects to the order sought in the purported amended application filed 4 April 2023). The following order was sought “in place of those to be reviewed” (summarised): On 12 April 2023, a Judge of this Court made the following order:1.The balance proceeds of sale of the property situate at [K Street], [Suburb L] in the State of Queensland be preserved on behalf of the parties in the trust account of [V Lawyers] after payment of any mortgage, outstanding rates and other utilities and reasonable costs and disbursements on the sale together with the removal of the Caveat lodged by [M Pty Ltd].UNTIL FURTHER ORDER2.The matter remain listed before a Judicial Registrar of the Federal Circuit & Family Court of Australia at Brisbane at 11.00am on Monday 17 April 2023 where upon IT IS DIRECTED that the wife’s interim and interlocutory application, together with any anticipated application by the husband for interim or interlocutory orders be listed together as priority for interim and interlocutory hearing before a Judge of either Division 1 or Division 2 of the Federal Circuit & Family Court of Australia at Brisbane.3.Costs of each of the parties of and incidental to list of the Review Application today are noted and reserved for the trial judge.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the wife clarified that the wife was only seeking a discharge or variation of paragraph 18 of the 2021 order, if such an order is determined to be necessary. The wife argues that as the 2021 order itself contemplates the Court making a further order at paragraph 18d, there is no need to discharge or vary the order. Conclusion on whether leave to amend should be granted In my view, the wife should be granted leave to amend both her application in a proceeding filed 16 March 2023 and the order sought in her application for review in accordance with the order sought in her case outline filed 5 May 2023. The husband has been on notice since at least 11 April 2023, that if, as contended by him, the 2021 order needs to be varied or set aside, the wife intends that to be part of her application. If, as argued by the husband, the wife does have to establish a change in circumstances and has failed to do so, I do not see that he is prejudiced thereby. The husband has also been on notice since 4 April 2023 that the wife is seeking payment of arrears of maintenance and lump sum spouse maintenance. However, as the husband filed on 12 April 2023 a further amended Initiating Application seeking to discharge the spouse maintenance order at paragraph 23 of the 2021 order on the grounds of fraud, it would seem that the competing spouse maintenance issues will need to be determined at trial. The husband has not as far as I am aware particularised the grounds of fraud but counsel for the wife accepts that such an allegation would not have been made on the husband’s behalf without a proper basis. Although the wife has not complied with rr 2.50 and 2.52, the Court may, in the interests of justice, dispense with compliance or full compliance with any of the Rules (r 1.31). In my view, dispensing with compliance with the Rules is justified in this case to enable the dispute to be determined. In taking this approach I am also mindful of s 43 of the FCFCOA Act which is in the following terms:In every matter before the Federal Circuit and Family Court of Australia (Division 1), the Court must grant, either:(a) absolutely; or(b) on such terms and conditions as the Court thinks just;all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:(c) all matters in controversy between the parties may be completely and finally determined; and(d) all multiplicity of proceedings concerning any of those matters may be avoided.REVIEW APPLICATIONLegislative provisions Prior to 1 September 2021, pursuant to s 123 of the Family Law Act 1975 (Cth) (“FLA”), all Judges of this Court, or a majority of them, had the power to make rules of court, not inconsistent with the FLA, providing for or in relation to the practice and procedure to be followed in a court exercising jurisdiction under the FLA. For the period 1 September 2021 until 1 March 2023, the rule making power resided with the Chief Justice of this Court alone but reverted to all Judges or a majority of them on 1 March 2023.

Ratio Decidendi

Legal Principle Established

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