Manuel and Stevenson
[2012] FamCA 1077
FAMILY COURT OF AUSTRALIA
| MANUEL & STEVENSON | [2012] FamCA 1077 |
FAMILY LAW – PRACTICE AND PROCEDURE – whether the Court should hear the section 79A and section 79 proceedings together – where the Court is required to consider a process which will reduce the costs and simplify the matter for the Court and the parties – where the Court declined to make a determination at this stage as to whether the section 79A factors should be heard separately from the section 79 proceedings – orders that the proceedings be adjourned.
Family Law Act 1975 (Cth) s 79A(1)(a)
Stanford & Stanford [2012] HCA 52
| APPLICANT: | Ms Manuel |
| RESPONDENT: | Mr Stevenson |
| FILE NUMBER: | ADC | 5873 | of | 2007 |
| DATE DELIVERED: | 13 December 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 13 December 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jordan |
| SOLICITOR FOR THE APPLICANT: | Jordan & Fowler |
| COUNSEL FOR THE RESPONDENT: | Mr Berman SC |
| SOLICITOR FOR THE RESPONDENT: | Adey Lawyers |
Orders
The wife’s Application in a Case filed on 1 November 2012 is adjourned to 5 March 2013 at 9.15 am before the Honourable Justice Dawe for mention UPON NOTING at that stage the Court will want to hear from the parties as to the status of the proceedings and in particular the details of the wife’s claim for overall settlement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manuel & Stevenson 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 ADELAIDE |
FILE NUMBER: ADC 5873 of 2007
| Ms Manuel |
Applicant
And
| Mr Stevenson |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
As counsel have gathered from the comments I have made during the submissions, I see some significant benefit to both of the parties and the Court if a determination is made of the factors which have to be determined at a further hearing, namely, the obligation of the Court under section 79A (1)(a) to be satisfied that there has been a miscarriage of justice by reason of the factors set out in that section. That is the first step that the Court has to undertake, namely, to be satisfied that there has been a miscarriage of justice.
The Court then may, in its discretion, vary the order or make another order if it considers it appropriate. We have what could probably be described as four steps, namely, first of all, determining if the Court is satisfied on appropriate evidence that there has been a miscarriage of justice by reason of the factors set out in 79A(1)(a). Then the next step would be the discretion to vary the order. The next step is for the Court to consider it appropriate, and then we move into the section 79 factors.
Mr Berman correctly raises the issues of how many steps are now imposed upon the Court pursuant to section 79 following upon the decision of Stanford & Stanford [2012] HCA 52, where we are required not to conflate the discretion referred to in section 79 after determining the property of the parties. The difficulty in this situation, however, is that there would be some merit in knowing at the outset, before determining the miscarriage of justice factor, what are the current assets and liabilities of the parties. It would also be helpful to know what claim the wife will make, if she were successful under section 79A, being her claim under section 79.
The Court is aware that there is a need to avoid what Mr Berman refers to as “substantial duplication”. It is also important to consider that the Court does not hear evidence which is entirely irrelevant to the determination of the first step, being the determination of the Court being satisfied that there has been a miscarriage of justice.
The Court has the discretion to hear and determine individual factors at any stage in the process. It is not obliged to hear the matter all in one trial. It is, indeed, obliged under the provisions of the Family Law Act 1975 (Cth) and the Rules, to consider a process which will reduce the costs and simplify the matter for the Court and the parties.
Therefore, I am, at this stage, declining to make a determination as to whether the section 79A factors should be bifurcated in any way from the overall section 79 proceedings. I indicate that, at this stage, I certainly have an inclination to have a hearing which would establish the facts upon which the discretion under section 79A(1) might be based and then consider whether there has to be the joinder of the section 79 proceedings with the exercise of the discretion under section 79A(1).
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 December 2012.
Associate:
Date: 20 December 2012