MacCailein & Roy
[2023] FedCFamC1F 1061
•11 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
MacCailein & Roy [2023] FedCFamC1F 1061
File number: SYC 2742 of 2019 Judgment of: CAMPTON J Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband’s mother, joined as the third respondent, for separate issues determination pursuant to r 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where all parties do not directly oppose as to a separate listing – Where dealing with such an issue separately would give effect to the overarching purpose of the Rules and the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where there are outstanding contravention proceedings between the husband and the wife – Order allowing the separate issues determination – Direction for extension of time to comply with prior orders as to family therapy – Where the husband and the wife are placed on notice that failure to comply may result in dismissal in accordance with the Family Law Act 1975 (Cth) Legislation: Family Law Act1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.10
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 11 December 2023 Place: Sydney Solicitor for the Applicant: Jo-Anna F S Moy Solicitor Counsel for the First Respondent: Mr Bainbridge of counsel Solicitor for the First Respondent: JC Legal Practice Solicitor for the Second Respondent: Blumberg Family Lawyers Counsel for the Third Respondent: Mr Wilson of counsel Solicitor for the Third Respondent: Jeffrey Choy Legal Independent Children's Lawyer: Ms Dorter ORDERS
SYC 2742 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR B MACCAILEIN
Applicant
AND: MS ROY
First Respondent
THE ESTATE OF MR C MACCAILEIN
Second Respondent
MS MACCAILEIN
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.The third respondent file and serve any amended response to the Initiating Application attaching to it and pleading with precision and particularity the claim as to the husband and wife holding their legal interests in the property at D Street, Suburb E, for her benefit, together with any affidavit evidence which she seeks to rely upon on or before 22 December 2023.
2.Each of the husband and wife file any amended Initiating Application or Amended Response to an Initiating Application attaching to it points of defence, pleading with particularity, the parts of the husband’s mother’s pleading that are admitted, not admitted or denied, together with any affidavit evidence on which they would seek to rely on or before 19 January 2024.
3.Each of the third respondent, the husband and wife file an undertaking as to disclosure pursuant to rule 6.06 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“The Rules”) on or before 1 February 2024.
4.The relief of the Third Respondent as contained in her further amended response to Initiating Application, by way of points of claim, be listed in the Sydney rolling list for no more than two (2) days, scheduled not before 9.30 am on 18 March 2024.
5.All affidavits are to comply with Part 8.3 of the Rules.
6.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
7.By no later than 7 days prior to the allocated trial date, each of the husband, wife and third respondent are to file and serve a case outline document identifying the list of material relied up, a chronology of significant events and a set of the contended factual findings that are submitted ought to be made by the Court, identifying with precision the reference to a paragraph to a relevant affidavit or document to support the making of that factual finding.
8.In the event any party requires an interpreter for the purposes of the separate issues trial, they ought make such arrangements they consider appropriate for that interpreter.
9.The proceeding be listed for a Case Readiness Hearing at 2.15 pm on 7 February 2024, and as to otherwise determine whether the current contravention proceeding ought to be summarily dismissed as an abuse of process.
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 MacCailein & Roy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Mr B MacCailein (“the husband”) and Ms Roy (“the wife”) are engaged in proceedings for property adjustment pursuant to s 79 of the Family Law Act1975 (Cth) (“the Act”). The husband’s parents, Ms MacCailein and the estate of Mr C MacCailein, have been joined to the proceeding. The husband’s parents claim that the parties to the marriage hold their legal interest in a real property at D Street, Suburb E (“the Suburb E property”) beneficially for them.
The husband concedes that he holds 50 per cent of his legal interest in that property for the benefit of his parents. The wife disputes the claim of the husband’s parents, contending that they transferred their legal and beneficial interests in that property to the husband and the wife and that the husband and the wife are indebted to the husband’s parents by way of loan. The husband’s father passed away in 2022. On 31 October 2023, the estate of the husband’s late father filed a submitting notice. By way of that notice, the estate is no longer participating in the proceedings.
The husband’s mother, as the third respondent, filed points of claim annexed to her Amended Initiating Response filed 5 April 2023. It appears the points of claim attached to the Amended Response amended prior points of claim documents to which each of the husband and the wife had filed points of defence. It appears that neither the husband nor the wife have filed points of defence to the latest version of the points of claim prosecuted by the husband’s mother.
As an adjunct to the s 79 proceedings between the husband and the wife, final consent parenting orders were made between them on 4 November 2021. The husband filed an Application - Contravention of parenting orders on 2 March 2022. An independent children’s lawyer was appointed in the contravention proceeding on 17 May 2022. As part of the contravention proceeding, neither parent agitates as to a variation of the current final parenting orders as to where the children live or with whom they spend time.
The parenting issue centres upon the mechanics of the provision the children’s items when changing over between the parents and the engagement of the children in extracurricular activities during specified time with the husband, together with other minor subsidiary disputes.
Orders were made as to family therapy on 28 February 2023. That family therapy has yet to be completed.
On 1 November 2023, the parents were directed to prepare and provide to the independent children’s lawyer on or before 23 November 2023 a minute of order identifying the changes or variations they propose to the final parenting orders as an adjunct to the contravention proceedings. It appears that that may not have occurred.
In the course of the management of this proceeding, it has been highlighted to the husband and wife that their current parenting dispute is not likely to be a justiciable controversy.
Notwithstanding the allocation of resources to these parties in respect of the contravention proceeding, and their failure to comply with the overarching principles and obligations of litigants as codified in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”) and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), they continue to agitate contended parenting issues in a litigation environment.
By way of an Application in a Proceeding filed by the husband’s mother on 31 August 2023, relief was sought by way of a separate issues determination pursuant to r 10.10 as to the beneficial interest claimed in the Suburb E property. That application was listed for hearing before me today. The husband joins in with the relief of his mother for a separate issues trial. The wife, notwithstanding her Response to the Application in a Proceeding, by way of her legal representative today also sees merit in the listing of the separate issues trial. It is her submission that a determination of the claim of the husband’s mother will assist the parties in crystallising a potential compromise of their outstanding s 79 dispute.
I am satisfied by reference to the criteria identified in r 10.10, that a determination of the claim of the husband’s mother would make any s 79 trial either unnecessary, should it then lead to a compromise being achieved, or make it substantially shorter. That process will ensure that the parties refine their resources and attempt to save costs engaging with their obligations as litigants in these proceedings.
In my view, having regard to the nature of the separate issue, the effect of dealing with it discreetly will give effect to the overarching purpose of both the Rules and the FCFCOA Act. I am further of the view that, in the circumstances, it is the most efficient use of the Court’s resources to dispose of the proceeding in a timely manner, and that it is a resource-based cost that is proportionate to the importance and complexity of the matters in dispute.
For those reasons, I will make orders listing the claim of the husband’s mother for hearing as a separate issue and make orders as to a timetable for the filing of affidavit evidence.
In relation to the outstanding contravention proceedings, it will be a matter for the parties to complete the process of therapy as ordered and to otherwise engage with the independent children’s lawyer in such alternate dispute resolution process as they consider appropriate.
The husband and the wife are on notice that their use of court resources in relation to the outstanding parenting disputes as identified earlier in these reasons has all but been exhausted.
I will not make any direction to extend the time for compliance with Order 17 made 1 November 2023 or as to engaging in an informal conference procedure with the independent children’s lawyer.
The husband and the wife are on notice as to the capacities existing within the Act and Rules for the Court to regulate its own proceedings. To my mind, the maintenance of a contravention proceeding for the purposes of determining the outstanding parenting dispute is not a proper application of the Court’s resources, but more importantly, in and of itself, may be an abuse of process by way of the contravention procedures for enforcement of parenting orders. Should there continue to be a dispute between them as to the parenting of the children, they can commence such other process as they consider appropriate.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 11 December 2023
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