Kraft and Ullrich

[2012] FamCA 327

FAMILY COURT OF AUSTRALIA

KRAFT & ULLRICH [2012] FamCA 327

FAMILY LAW - PROPERTY - Discrete hearing - Whether or not there should be separate hearings in relation to the Wife's s 79A application - Where there is an allegation the Husband deliberately withheld knowledge that a property was worth significantly more than its valuation

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Oastler & Oastler (1993) FLC 92-290
Patching & Patching (1995) FLC 92-585

APPLICANT: Mr Kraft

RESPONDENT: Ms Ullrich

FILE NUMBER: TVC 461 of 2007

DATE DELIVERED: 8 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 8 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows

SOLICITOR FOR THE APPLICANT: Boulton Cleary & Kern

COUNSEL FOR THE RESPONDENT: Mr Baston

SOLICITOR FOR THE RESPONDENT: Feeney Family Law

Orders

1. Pursuant to Part 10.3 of the Family Law Rules 2004 (Cth), the issue as to whether the Respondent Wife establishes a ground under s 79A(1) of the Family Law Act 1975 (Cth) (“the Act”) be heard on 24 and 25 July 2012 in Townsville before the Honourable Justice Kent.

2. The Respondent Wife file and serve within twenty-one (21) days her affidavit and the affidavit of evidence in chief and the affidavit of evidence in chief of any witness upon whom she intends to rely for the purpose of such hearing.

3. Within twenty-one (21) days after service of the affidavits referred to in Order 2, the Husband file and serve his affidavit of evidence in chief and the affidavit of evidence in chief of any witness upon whom he intends to rely for the purpose of such hearing.

4. If it be determined, consequent upon the hearing on 24 and 25 July 2012, that the Respondent Wife establishes a ground under s 79A(1) of the Act, then the further hearing of the Respondent Wife’s application pursuant to s 79A shall be listed for hearing on 22, 23 and 24 August 2012 in Townsville before the Honourable Justice Kent.

5. Each party’s costs of and incidental to this hearing be reserved to the trial.

6. It is certified that it was reasonable for each party to engage Counsel to attend on this hearing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 461 of 2007

Mr Kraft

Applicant

And

Ms Ullrich

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, property proceedings were originally commenced by the Wife as long ago as 4 October 2005, and the parties reached final consent Orders with respect to property division on 7 December 2006.

2. The current proceedings by the Wife were commenced on 7 October 2010. Those proceedings related to the interpretation of the original 2006 consent Orders, and were dealt with by His Honour Justice Monteith prior to His Honour’s retirement. There was an appeal lodged against the Orders made by His Honour Justice Monteith on 13 April 2011.

3. The Wife filed an Application in a Case on 14 November 2011, pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”), seeking to vary the original consent Orders that were made. On the basis that the Wife instituted a s 79A application the parties agreed to adjourn the appeal proceedings pending the determination of the s 79A proceedings.

4. The issue for my determination today is in respect of the Husband’s application that there be a separate hearing pursuant to s 79A of what may be conveniently described as the threshold issue; that is, whether a ground is made out under s 79A before then hearing and determining the evidence with respect to the discretion to vary or set the Order aside. The Husband applies, pursuant to the relevant rules under the Family Law Rules 2004 (

5. Cth) (“the Rules”), for there to be a separate hearing, essentially on the basis of the additional cost occasioned to both parties by having a full trial on all issues in circumstances where it is said that on the Wife’s current financial position, she may be unable to meet an Order for costs in the event that the Husband is successful.

6. For her part, the Wife resists that application essentially on the basis that, understandably, the Wife would say that she has a case for relief under s 79A of the Act, and it is in essence inevitable that there will be a need for the Court to consider a re-exercise of its discretion.

7. In the course of exchanges between the bar table and the bench (and I incorporate those without repetition in these Reasons), it became clear that the essential concern of the Wife of a separate hearing would be potential significant delay, particularly if there was an appeal from a determination of the initial discrete hearing. In the result, in circumstances where I have indicated that, as I will be the trial judge hearing the matter, commencing on 23 July 2012, I will make arrangements to make myself available again in Townsville for the further hearing as soon as that can be done thereafter in the event that the Wife’s application succeeds so far as prima facie establishing a ground for relief under s 79A.

8. Plainly enough, there is authority to the effect that it is prima facie desirable that proceedings pursuant to s 79A be heard and determined in one hearing;[1] that is, that there not be a separate hearing and determination of whether or not there is a ground made out and then a further hearing as to whether the discretion should be exercised to vary or set aside the Order. In this case, however, it seems to me that there are reasons to depart from that prima facie position, particularly having regard to the potential costs savings to the parties, and that is a cost saving either way; that is, if the Wife succeeds in her application in terms of making out a prima facie case, that may allow the parties scope they might not otherwise have to reach some resolution of the matter without incurring the further significant costs involved in a trial of the proceedings in circumstances where six years have elapsed since the original consent Orders were made. Alternatively, if the Wife does not succeed, it avoids the significant additional costs of the substantive trial so far as the evidence and valuations that would need to be addressed since the consent Orders were made on 7 December 2006.

   [1] See, for example, Oastler & Oastler (1993) FLC 92-290; Patching & Patching (1995) FLC 92-585.

9. In the result, I did not detect that, in circumstances where the parties can be accommodated by two trials occurring close together, that the Wife maintained significant opposition to the Husband’s application, but if I am wrong about that, in any event, I consider that this is an appropriate case to depart from the usual approach and in favour of ordering a separate hearing pursuant to r 10.14 of the Rules.

10. I make Orders as set out at the commencement of these reasons.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 May 2012.

Associate: 

Date:  9 May 2012