FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Joubert & Bottari (No 2) [2024] FedCFamC1F 322
File number(s): SYC 4450 of 2022 Judgment of: HARPER J Date of judgment: 6 May 2024 Catchwords: FAMILY LAW – PROPERTY – EX TEMPORE – Where matter is in the MCFP List – Where wife seeks adjournment of final hearing on first day of allocated hearing dates – Where essential expert evidence is not presently available – Where no balance sheet is before the Court – Where it is agreed that expert evidence is necessary – Where husband concedes that final hearing would not conclude in the five days allocated and would need to go part heard to receive expert evidence – Where senior counsel for the wife contends that late produced material from the husband would require putting to the husband that he is a liar – Court takes the view that the risk of part-heard cross-examination is undesirable in such circumstances – Adjournment granted – Orders made for wife to pay the husband $1 million as a condition of the adjournment – Cost thrown away by the adjournment reserved. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 68
Cases cited: Bing and Bing (2007) FLC 93-318; [2007] FamCA 418 Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 6 May 2024 Place: Sydney Counsel for the Applicant: Mr Dickson KC with Mr Richardson Solicitor for the Applicant: Michael Conley Lawyers Counsel for the Respondent: Mr Williams KC with Mr Roberts Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 4450 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JOUBERT
Applicant
AND: MS BOTTARI
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
6 MAY 2024
THE COURT NOTES IN CHAMBERS THAT:
A.These proceedings were commenced by the Applicant Husband (“husband”) on 28 June 2022. Final hearing dates were allocated commencing on 6 May 2024, however the parties failed to make the proceedings ready to proceed to final hearing on the allocated dates.
THE COURT ORDERS THAT:
1.The final hearing dates of 6, 7, 8, 9 and 10 May 2024 are vacated.
2.As a condition of the adjournment, the Respondent Wife (“wife”) pay to the husband $1 million by way of partial property settlement within 60 days of these orders.
3.In default of the wife complying with Order 2 above, the husband has liberty to apply to my Chambers to have the matter relisted on 3 days’ notice for the wife to show cause why her response should not be struck out and the matter proceed on an undefended basis.
4.The costs thrown away by the adjournment pursuant to these orders are reserved.
5.The proceedings are stood over to a date to be advised.
6.The wife have first access to any documents produced under subpoena by N Limited with such right to lapse 14 days after the date of these…
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- Joubert & Bottari (No 2) [2024] FedCFamC1F 322
- Case
- [2024] FedCFamC1F 322
- Decision Date
CaseChat Overview and Summary
The court had to determine whether to grant an adjournment of the final hearing. Key considerations included the unavailability of essential expert evidence, the husband’s concession that the final hearing would not conclude within the allocated timeframe, and the wife's argument that late produced material from the husband would require putting to the husband that he is a liar. The court concluded that the risk of part-heard cross-examination was undesirable and granted the adjournment. The court also ordered the wife to pay the husband $1 million as a condition of the adjournment and reserved the costs thrown away by the adjournment.
In light of the considerations outlined above, the court made several orders. The final hearing dates of 6, 7, 8, 9 and 10 May 2024 were vacated. The wife was ordered to pay the husband $1 million by way of partial property settlement within 60 days of the orders. In default of the wife complying with this order, the husband has liberty to apply to the court to have the matter relisted for the wife to show cause why her response should not be struck out and the matter proceed on an undefended basis. The costs thrown away by the adjournment were reserved. The proceedings were stood over to a date to be advised, and the wife was granted first access to any documents produced under subpoena by N Limited, with such right to lapse 14 days after the date of the orders. The time for compliance with the subpoenas issued to the wife and J Pty Ltd was set at 28 days, and the parties were to file and serve any affidavits in reply within 30 days after receipt of the single expert valuation evidence.
Orders
Orders of the court
SYC 4450 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR JOUBERT
Applicant
AND:
MS BOTTARI
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
6 MAY 2024
THE COURT NOTES IN CHAMBERS THAT:
A. These proceedings were commenced by the Applicant Husband (“husband”) on 28 June 2022. Final hearing dates were allocated commencing on 6 May 2024, however the parties failed to make the proceedings ready to proceed to final hearing on the allocated dates.
THE COURT ORDERS THAT:
1. The final hearing dates of 6, 7, 8, 9 and 10 May 2024 are vacated.
2. As a condition of the adjournment, the Respondent Wife (“wife”) pay to the husband $1 million by way of partial property settlement within 60 days of these orders.
3. In default of the wife complying with Order 2 above, the husband has liberty to apply to my Chambers to have the matter relisted on 3 days’ notice for the wife to show cause why her response should not be struck out and the matter proceed on an undefended basis.
4. The costs thrown away by the adjournment pursuant to these orders are reserved.
5. The proceedings are stood over to a date to be advised.
6. The wife have first access to any documents produced under subpoena by N Limited with such right to lapse 14 days after the date of these orders and thereafter, all parties have access to such documents.
7. The time for compliance with the subpoenas issued to the wife and J Pty Ltd by 28 days.
8. The parties are to file and serve any affidavits in reply within 30 days after receipt of the single expert valuation evidence.
THE COURT FURTHER NOTES THAT:
B. The wife has liberty to place any documents produced under subpoena by N Limited which she claims to be privileged into a sealed envelope.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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