FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jepson & Jepson (No 5) [2024] FedCFamC1F 51
File number: SYC 2100 of 2016 Judgment of: MCCLELLAND DCJ Date of judgment: 9 February 2024 Catchwords: FAMILY LAW – PROPERTY – Where the applicant husband seeks a partial property distribution – Where the Court is not satisfied that such an order is appropriate in the circumstances of the case – Application dismissed – Costs reserved to final hearing. Legislation: Family Law Act 1975 (Cth) ss 79, 80 Cases cited: Jepson & Jepson [2017] FamCA 1013
Jepson & Jepson [2022] FedCFamC1F 45
Jepson & Jepson (No 2) [2022] FedCFamC1F 913
Jepson & Jepson (No 4) [2023] FedCFamC1F 937
Kowaliw and Kowaliw (1981) FLC 91-092
Ruslan & Ruslan [2024] FedCFamC1F 50
Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 20 December 2023 Place: Sydney Solicitor for the Applicant: Mr White, Powe & White Family Lawyers Counsel for the First Respondent: Mr Watkins Second Respondent: Litigant in person ORDERS
SYC 2100 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JEPSON
Applicant
AND: MS JEPSON
First Respondent
MS B JEPSON
Second Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding filed 8 November 2023 is dismissed.
2.Costs of the husband’s Application in a Proceeding filed 8 November 2023 be reserved for determination at the final hearing.
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 Jepson & Jepson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter concerns an Application in a Proceeding filed by the applicant husband, Mr Jepson, (“the husband”) on 8 November 2023. The husband’s application seeks, firstly, a partial property settlement in the amount of $320,000 and secondly, for the wife to pay the husband’s costs of the application on an indemnity basis. The parties have incurred substantial legal cost in conducting the proceedings in this Court and the husband also has a need to fund private legal representation in criminal proceedings that currently remain on foot (husband’s affidavit filed 8 November 2023, paragraph 29).
For reasons which follow, I have dismissed the husband’s application.
This matter also concerned an Application in a Proceeding filed…
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CaseChat Overview and Summary
The primary legal issues addressed by the court were whether the husband had discharged the persuasive burden of establishing that there were sufficient assets available to satisfy the order sought without prejudicing the other party, and whether it was just and equitable to make the order in the circumstances. The court considered the principles outlined in Ruslan & Ruslan [2024] FedCFamC1F 50, which emphasise the discretionary nature of the court's power to make orders for a partial distribution of property under sections 79 and 80(1)(h) of the Family Law Act 1975. The court also considered the overarching purpose of the Federal Circuit and Family Court of Australia Act 2021 to resolve disputes quickly, inexpensively, and efficiently.
The court found that the husband had not sufficiently demonstrated that there were adequate assets available to satisfy the order sought without prejudicing the wife’s property claim. Furthermore, the court was not satisfied that it was just and equitable to make the order in the circumstances, particularly in light of the proximity of the final hearing dates and the complexity of the issues involved. The court also noted that the husband’s conduct in the proceedings, including compliance with obligations to keep costs reasonable and proportionate, was relevant to the exercise of the court’s discretion.
Consequently, the court dismissed the husband's application for a partial property distribution, reserving the costs of the application for determination at the final hearing. This decision highlights the stringent requirements for an interim property distribution order and the importance of the interests of justice in exercising the court’s discretion.
Orders
Orders of the court
SYC 2100 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR JEPSON
Applicant
AND:
MS JEPSON
First Respondent
MS B JEPSON
Second Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The husband’s Application in a Proceeding filed 8 November 2023 is dismissed.
2. Costs of the husband’s Application in a Proceeding filed 8 November 2023 be reserved for determination at the final hearing.
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
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I set out the relevant principles that apply in considering whether to make an order for partial property distribution in Ruslan & Ruslan [2024] FedCFamC1F 50 at [29] as follows:(1)The exercise of discretion: ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”) confer power on the Court to make orders for a partial distribution of property prior to the final hearing. That is:(a)Section 79 confers a discrete power to make orders for property settlement and the Court may exercise that power through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made: Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”) at [110], quoting Gabel & Yardley (2008) FLC 93-386 at [57].(b)Section 80 is not, in itself, a source of jurisdiction for such an order to be made. Rather, the section is an “enabling provision” that provides various ways in which the general power in s 79 of the Act may be exercised in individual cases: Davidson and Davidson (No 2) (1994) FLC 92-469 at 80,875 and Yunghanns & Yunghanns (1999) FLC 92-836 at [118]. This includes, by s 80(1)(h), the making of “a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order”.(2)There are three stages to the hearing of an application for interim property adjustment orders:(i)The first two stages were described in Strahan at 85,645–85,646, with the first being a “procedural step” which requires an analysis of whether the circumstances of the case triggers the Court’s power to invoke s 80(1)(h) of the Act to make an order for partial property adjustment. At this stage, the “overarching consideration” is the interests of justice: Strahan at [132].(ii)The second stage is the “substantive step”, where the provisions of s 79 must be considered and applied, but with limitations, given that it is not the final hearing.(iii)The third stage, although not necessarily to be considered in this order, is to assess whether the applicant for relief has discharged the persuasive burden referred to in Medlow & Medlow (2016) FLC 93-692 (“Medlow”) at [86], of establishing that there are sufficient assets available to satisfy the order sought without prejudicing the other party (“the Medlow onus”). In that respect, the Full Court said:The onus was clearly upon [the applicant for relief] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent’s] property claim. The onus was not on the [respondent] to adduce such evidence.(iv)Moreover, the evidence required to discharge the Medlow onus is such that the Court should be “comfortably satisfied” of the sufficiency of assets to ensure that the applicant would receive, at final hearing, no less than the amount sought by way of interim property distribution: Widmann & Widmann [2016] FamCA 1164 at [14] and see Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216 at [72].(3)Even if there is sufficiency of evidence to discharge the Medlow onus, that is not the end of the matter. An applicant seeking orders for partial property distribution is required to show more “than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party”: Strahan at [139].(4)The overriding consideration at all stages of the process is that the Court is satisfied that it is “just and equitable” to make the order in the circumstances: Stanford & Stanford (2012) 247 CLR 108 at [35] (“Stanford”). The determination of that issue should not be approached on the basis of an assumption “that one or other party has the right to have the property of the parties divided between them”: Medlow at [72], quoting Stanford at [40]. This applies to an application for an order for a partial distribution of property in interim proceedings as much as it does to an application for the adjustment of property at the final hearing of the matter.(5)In applying these considerations, the exercise of the Court’s jurisdiction should be conducted with an appreciation that “as a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings”: Strahan at [177], quoting Harris and Harris (1993) FLC 92-378 at 79,929–79,930.(6)Additionally, subsequent to the introduction of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) in September 2021, the Court, the parties and their legal advisers are required to have regard to the “overarching purpose” set out in s 67 of the FCFCOA Act, which includes the public interest of ensuring that disputes are resolved “as quickly, inexpensively and efficiently as possible”. In respect to comparable provisions set out in ss 56 and 60 of the Civil Procedure Act 2005 (NSW), it has been determined that it will usually be the case those principles are best served by one rather than a multiplicity of hearings: Cook by her tutor Kristy Stewart v Riding for the Disabled Association (NSW) Raymond Terrace and Lower Hunter Centre [2023] NSWSC 1503 at [19].(7)As a related issue, the manner in which the party seeking a partial property distribution has conducted the proceedings will also be relevant. Most relevantly, that includes the extent to which the party and or their legal advisers have complied with their obligations pursuant to ss 67 and 68 of the FCFCOA Act to promote the overarching purpose by keeping costs to a reasonable and proportionate amount. To do otherwise, simply provides additional resources to the party to engage in ongoing “lawfare” at a likely disproportionate cost to the parties and to taxpayers.(8)The party seeking the relief carries the persuasive burden of satisfying the Court that the circumstances of the case are such that the Court should exercise its discretion in their favour. In that respect, as noted by Thackray J in Strahan at [223]:… it is important to note that s 80(1) [or s 90SS(1)] is couched in the permissive. Hence, although the Court must give consideration to the matters set out in s 79(4) [or s 90SM] when hearing an application for an interim payment, it has no obligation to make an interim order. The Court “may” do so if it considers that it should in the exercise of its discretion. (9)Circumstances in which the Court has made an order for partial property distribution include, but are not necessarily limited to, where one of the parties has a monopoly in terms of access to the finances and resources of the parties such that they have a significant advantage in the litigation and, conversely, the other party is significantly disadvantaged: see, eg, Strahan at [80] and Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [60].(10)It is unlikely that the Court would grant such relief in circumstances where to do so would “potentially defeat any party’s claim or legitimate expectations in a final hearing”: Aitken & Murphy (No 2) [2012] FamCA 239 at [158].…(12)Finally, among the matters that the Court may take into consideration in the exercise of its discretion is the proximity of the final hearing dates and the complexity of the issues involved in determining the likely ability of the Court to, if necessary, ‘claw back’ the funds released by way of interim property settlement: Pinta & Pinta [2022] FedCFamC2F 34 at [115].CONSIDERATION