Lane and Owen

In *Lane & Owen*, the Family Court of Australia considered competing applications for property division between Mr Lane (the applicant husband) and Ms Owen (the respondent wife). The proceedings arose from the breakdown of their marriage and involved a review of a prior decision made by a Judicial Registrar. While the court had heard the property division applications, judgment had been reserved due to judicial resource constraints. Subsequently, Ms Owen filed an application seeking a partial property division payment of $8,160 from controlled funds held by the husband's solicitors, citing financial hardship. Mr Lane filed a cross-application seeking an adjournment of the final property division judgment pending the resolution of proceedings in the New South Wales Consumer Trader and Tenancy Tribunal (CTT) concerning two former matrimonial properties.

The court was required to determine two principal issues. Firstly, whether to grant Ms Owen's application for a partial property division payment of $8,160 from controlled funds. Secondly, and more significantly, the court had to consider Mr Lane's application to reopen the property division proceedings and adjourn them pursuant to section 79(5) of the *Family Law Act 1975* (Cth) until the determination of the CTT proceedings. These CTT proceedings involved a substantial claim for remedial works on the former matrimonial properties, potentially impacting the parties' financial circumstances.

The court reasoned that the application for the release of $8,160 to Ms Owen was a matter of consent between the parties. Mr Lane agreed to this payment as a partial property division, and Ms Owen accepted this characterisation. Therefore, the court ordered this payment by consent. Regarding Mr Lane's application to reopen and adjourn, the court applied common law principles governing the reopening of cases, which are discretionary and guided by the interests of justice. The court considered criteria such as the materiality of further evidence, its potential impact on the result, whether it could have been discovered earlier with reasonable diligence, and any prejudice to the other party. The court found that the CTT proceedings represented a significant and material development that could substantially alter the parties' financial circumstances. Despite Ms Owen's opposition and her belief that the claim lacked substance, the court was persuaded that the potential liability arising from the CTT proceedings was so material that the interests of justice required the case to be reopened and adjourned.

Consequently, the court ordered that the trial of the competing property division applications be reopened and adjourned for further hearing on a date to be fixed. This adjournment is contingent upon the determination of the proceedings pending in the New South Wales CTTT. The solicitors for the husband are to keep the court informed of the progress and conclusion of those proceedings.