Mihova & Mihova (No 2)

Case [2025] FedCFamC1F 284

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mihova & Mihova (No 2) [2025] FedCFamC1F 284

File number: SYC 10253 of 2024
Judgment of: SCHONELL J
Date of judgment: 5 May 2025
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the first, second and third respondents for separate issues determination pursuant to r 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the applicant and fourth and fifth respondents opposed the application – Consideration of the approach to be taken having regard to s 95 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where dealing with such an issue separately would not give effect to the overarching purpose of family law litigation – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) Pt VIII, s 95

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.10, 10.11

Uniform Civil Procedure Rules 2005 (NSW)

Cases cited:

ABB v Freight Rail [1999] NSWSC 1037

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411

City of Swan v Lehman Brothers Australia Ltd (2009) 73 ACSR 86; [2009] FCA 784

Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593

Cruden v Sae-Ung [2021] NSWSC 1070

Marley & Ormonde [2020] FamCA 1046

Southwell v Bennett [2010] NSWSC 1372

Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19

Warragamba Winery Pty Ltd v New South Wales [2010] NSWSC 66

Division: Division 1 First Instance
Number of paragraphs: 28
Date of last submissions: 23 April 2025
Date of hearing: 4 April 2025
Place: Sydney
Counsel for the Applicant: Mr Sirtes SC
Solicitor for the Applicant: Juris Cor Legal
Counsel for the First Respondent: Mr Jones SC
Solicitor for the First Respondent: Longton Legal
Solicitor for the Second and Third Respondents: Ms Ham, Alton Legal
Counsel for the Fourth and Fifth Respondents: Mr Ahmad
Solicitor for the Fourth and Fifth Respondents: Brightstone Legal

ORDERS

SYC 10253 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MIHOVA

Applicant
AND:

MR MIHOVA

First Respondent

B PTY LTD

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

5 MAY 2025

THE COURT ORDERS THAT:

1.The oral applications of the first, second and third respondents for a decision on an issue pursuant to r 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is dismissed.

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).

Continue reading Mihova & Mihova (No 2)

Sign in free to access the full text

Details
AGLC
Mihova & Mihova (No 2) [2025] FedCFamC1F 284
Case
[2025] FedCFamC1F 284
Decision Date

CaseChat Overview and Summary

The case of Mihova & Mihova (No 2) involved an application by the first, second, and third respondents for a separate determination of an issue pursuant to rule 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The application was opposed by the applicant and the fourth and fifth respondents. The legal issues that arose for the court's determination included whether the application should be granted and if doing so would align with the overarching purpose of family law litigation as expressed in the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

The court considered the principles guiding the determination of separate issues and highlighted the mandatory nature of the Rules in this regard. It was noted that the overarching purpose of family law litigation includes objectives such as the just determination of proceedings, efficient use of judicial resources, and resolution of disputes at a proportionate cost. The court referred to the observations made by Hallen J in Southwell v Bennett [2010] NSWSC 1372, which emphasised the general rule that all questions of fact and law should be determined at the same time. The court also took into account that separating proceedings often leads to complications and does not necessarily result in quicker or cheaper resolutions. In this case, the court found that dealing with the issue separately would not give effect to the overarching purpose of family law litigation, and thus dismissed the application.

The court concluded that the proposed separate determination of the issue would not contribute to the just and efficient resolution of the proceedings. Given the opposition from the applicant and other respondents, and the potential for complications such as inconsistent findings and overlapping evidence, the court found that the application should not proceed. Therefore, the court dismissed the application for a separate determination of the issue.

Orders

Orders of the court

SYC 10253 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MIHOVA

Applicant

AND:

MR MIHOVA

First Respondent

B PTY LTD

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

5 MAY 2025

THE COURT ORDERS THAT:

1. The oral applications of the first, second and third respondents for a decision on an issue pursuant to r 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is dismissed.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rules 10.10 and 10.11 are to the following effect:10.10 Application for separate decision (1) A party may apply for a decision on any issue, if the decision may:(a) dispose of all or part of the proceeding; or (b) make a trial unnecessary; or (c) make a trial substantially shorter; or (d) save substantial costs.(2)An application under this rule must be made by filing an application in accordance with the approved form.10.11 Orders that may be made under this Part (1) On an application under this Part, the court may:(a)dismiss any part of the proceeding; or (b)decide an issue; or (c)make a final order on any issue; or (d)order a hearing about an issue or fact; or (e)with the consent of the parties, order arbitration about the proceeding or a part of the proceeding.(2)If the court makes orders against a party who is claiming relief against the party who obtains the orders, the court may stay execution on, or other enforcement of, the orders until determination of that claim. It is to be noted that the Rules speak in mandatory terms requiring the filing of an application. One starting point for the consideration of such an application is whether it sits conformably within the rubric of the overarching purpose of family law litigation as expressed in the Act and Rules. In that respect, s 95(2) of the Act speaks in the following terms:(2)Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:(a)the just determination of all such proceedings:(b)the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;(c)the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;(d)the disposal of all such proceedings in a timely manner;(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. Rules 10.10 and 10.11 are in terms similar to provisions in the Uniform Civil Procedure Rules 2005 (NSW). In Marley & Ormonde [2020] FamCA 1046 Deputy Chief Justice McClelland cited with approval the observations of Hallen J in Southwell v Bennett [2010] NSWSC 1372 where his Honour observed as follows: [15]…(e)As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1, at [168]–[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water [2010] NSWSC 979 at [4] per Studdert AJ.…(g)Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141–42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the court is to depart from that position, the party seeking the separate determination of a question must satisfy the court that it would be “just and convenient” for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]–[9], see also Energy Australia v Australian Energy Ltd [2001] FCA 1049.(h)While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.(i)The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Ltd v The Water Board at [168].(j)Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).(k)Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.(l)Often, a separate question is heard on the basis of:(i) agreed statements of fact;(ii) a narrow point to be determined; and(iii)a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).(m)Factors that tend to support the making of an order, include that the separate determination of the question may:(i)contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings;(ii)contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 602 per Kirby P at 607).(n)It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784 ; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.(o)Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.…(q)It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Ltd v Duffy at pp 4–5.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.