Osferatu & Lawrenz - [2024] FedCFamC1F 696

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Osferatu & Lawrenz [2024] FedCFamC1F 696

File number(s): SYC 5116 of 2024

Judgment of: BEHRENS J

Date of judgment: 18 October 2024

Catchwords: FAMILY LAW – PROPERTY – Interim application – Where applicant in substantive proceedings seeks property adjustment orders pursuant to Family Law Act 1975 (Cth) s 90SM – Where respondent to substantive proceedings seeks declaration under Family Law Act 1975 (Cth) s 90RD that de facto relationship did not exist – Where respondent seeks order for separate threshold hearing to determine whether de facto relationship existed – Where applicant opposes threshold hearing – Where threshold hearing would likely be lengthy – Where significant overlap likely between evidence adduced at hearing on threshold issue and at any final hearing – Where evidence overlap and anticipated witness credibility issues create risk of inefficiency and inconsistency – Where threshold hearing could avoid cost and delay in circumstances where there is a large pool, multiple assets and entities – Where there are likely to be significant issues remaining in dispute unless threshold hearing is determined in favour of the respondent – Where the overarching purpose is best promoted by not ordering a threshold hearing on issue of existence of de facto relationship – Application for threshold hearing dismissed

Legislation:
Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.10, 10.11

Cases cited:
Barone and Whittle [2019] FamCA 924

Southwell v Bennett [2010] NSWSC 1372

Zagoreos and Zagoreos (2018) 57 Fam LR 358; [2018] FamCA 4

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 15 October 2024

Place: Sydney

Solicitor for the Applicant: Ms Ruggero, Vizzone Ruggero Twigg Lawyers

Solicitor for the Respondent: Ms Sharpe, Marsdens Law Group
ORDERS

SYC 5116 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS OSFERATU

Applicant

AND:
MR LAWRENZ

Respondent

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

18 OCTOBER 2024

THE COURT ORDERS THAT:
1.The Respondent’s application for a separate hearing on the question of whether the parties were in a de facto relationship is dismissed.
2.Accordingly:
(a)The proceedings shall proceed on the basis that all issues of fact and law will be heard together; and
(b)The Respondent’s applications to be relieved of the obligation to provide full and frank disclosure of his financial circumstances and to be relieved of his obligation to file a Financial Statement are dismissed.

3.By no later than 4.00 pm on 15 November 2024, the Respondent is to file and serve a Financial Statement.
4.The parties are to confer for the purpose of producing an agreed Minute of Procedural Orders for the further progress of the proceedings, on the basis that the matter will be listed in a callover in the first half of 2025 and it is expected that the matter will be allocated a final hearing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Osferatu & Lawrenz [2024] FedCFamC1F 696
Case: [2024] FedCFamC1F 696
Decision Date: 18 October 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Osferatu, the applicant, and Mr Lawrenz, the respondent, were engaged in substantive family law proceedings concerning property adjustment orders. Mr Lawrenz contested the existence of a de facto relationship with Ms Osferatu, a prerequisite for making certain orders under the Family Law Act 1975 (Cth). He applied for a separate threshold hearing to determine the existence of this relationship and opposed any such hearing by Ms Osferatu. The court was tasked with deciding whether to order a separate hearing on the threshold issue of whether a de facto relationship existed, and if so, how to proceed with the broader substantive proceedings.

The court considered the principles and authorities established in previous cases, including Barone and Whittle, where similar issues were addressed. It noted the potential for significant overlap in evidence and witness credibility issues between the threshold hearing and the substantive hearing. The court recognised that a separate threshold hearing could lead to inefficiency, inconsistency, and increased costs, especially given the complexity and volume of assets involved. Additionally, if the threshold hearing did not resolve the issue in favour of Mr Lawrenz, the substantive proceedings would still face significant disputes. The court determined that ordering a separate threshold hearing would not align with the overarching purpose of facilitating the just, quick, and efficient resolution of disputes.

Accordingly, the court dismissed Mr Lawrenz's application for a separate hearing on the threshold issue. The proceedings would proceed without a separate determination, and all issues of fact and law would be heard together. The court ordered Mr Lawrenz to file a Financial Statement by a specified date and directed the parties to confer to produce a Minute of Procedural Orders for further progress of the case. If the parties could not agree, they were to submit their proposed Minutes to Chambers for further consideration. The court’s decision aimed to promote efficiency and avoid unnecessary delay and expense in the resolution of the substantive family law proceedings.

Orders

Orders of the court

SYC 5116 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS OSFERATU

Applicant

AND:

MR LAWRENZ

Respondent

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

18 OCTOBER 2024

THE COURT ORDERS THAT:

1. The Respondent’s application for a separate hearing on the question of whether the parties were in a de facto relationship is dismissed.

2. Accordingly:

(a) The proceedings shall proceed on the basis that all issues of fact and law will be heard together; and

(b) The Respondent’s applications to be relieved of the obligation to provide full and frank disclosure of his financial circumstances and to be relieved of his obligation to file a Financial Statement are dismissed.

3. By no later than 4.00 pm on 15 November 2024, the Respondent is to file and serve a Financial Statement.

4. The parties are to confer for the purpose of producing an agreed Minute of Procedural Orders for the further progress of the proceedings, on the basis that the matter will be listed in a callover in the first half of 2025 and it is expected that the matter will be allocated a final hearing in the second half of 2025 and trial directions will be made.

5. The parties are to provide any agreed Minute to Chambers via email to ...@... on or before 4.00 pm on 29 November 2024.

6. In the event the parties are unable to reach agreement in accordance with Order 4, each party is to provide their proposed Minute of Procedural Orders to Chambers via email to …@... on or before 4.00 pm on 29 November 2024 and the matter will be listed for further Case Management Hearing.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The relevant Rules are as follows: 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. 10.11Orders 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. Rule 1.04 makes clear that decisions made in accordance with these Rules are guided by s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which provides 67 Overarching purpose of civil practice and procedure provisions(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), is to facilitate the just resolution of disputes:(a) according to law; and(b) as quickly, inexpensively and efficiently as possible.(2) Without limiting subsection (1), the overarching purpose includes the following objectives:(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;(c) the efficient disposal of the Court’s overall caseload;(d) the disposal of all 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.(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. Rule 10.10 does not do a lot of relevant work because a decision on the question of whether the parties were in a de facto relationship will inevitably “dispose of all or part of the case.” Hence the application may be made. Rule 10.11(1)(d) then grants the discretion to “order a hearing about an issue or fact”. The Court must exercise that discretion in the way that best promotes the overarching purpose. I was handed the Reasons for Judgment of Harper J in Barone and Whittle [2019] FamCA 924 (“Barone and Whittle”). As in this matter, the respondent in Barone and Whittle contended that no de facto relationship ever existed between him and the applicant. Justice Harper reviewed the authorities and principles on the question of whether an order for a separate determination should be made and decided that there should not be a separate threshold hearing in that case.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 5116 of 2024
Judgment of:	BEHRENS J
Date of judgment:	18 October 2024
Catchwords:	FAMILY LAW – PROPERTY – Interim application – Where applicant in substantive proceedings seeks property adjustment orders pursuant to Family Law Act 1975 (Cth) s 90SM – Where respondent to substantive proceedings seeks declaration under Family Law Act 1975 (Cth) s 90RD that de facto relationship did not exist – Where respondent seeks order for separate threshold hearing to determine whether de facto relationship existed – Where applicant opposes threshold hearing – Where threshold hearing would likely be lengthy – Where significant overlap likely between evidence adduced at hearing on threshold issue and at any final hearing – Where evidence overlap and anticipated witness credibility issues create risk of inefficiency and inconsistency – Where threshold hearing could avoid cost and delay in circumstances where there is a large pool, multiple assets and entities – Where there are likely to be significant issues remaining in dispute unless threshold hearing is determined in favour of the respondent – Where the overarching purpose is best promoted by not ordering a threshold hearing on issue of existence of de facto relationship – Application for threshold hearing dismissed
Legislation:	Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.10, 10.11
Cases cited:	Barone and Whittle [2019] FamCA 924 Southwell v Bennett [2010] NSWSC 1372 Zagoreos and Zagoreos (2018) 57 Fam LR 358; [2018] FamCA 4
Division:	Division 1 First Instance
Number of paragraphs:	27
Date of hearing:	15 October 2024
Place:	Sydney
Solicitor for the Applicant:	Ms Ruggero, Vizzone Ruggero Twigg Lawyers
Solicitor for the Respondent:	Ms Sharpe, Marsdens Law Group

SYC 5116 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS OSFERATU Applicant
AND:	MR LAWRENZ Respondent

ORDER MADE BY:	BEHRENS J
DATE OF ORDER:	18 OCTOBER 2024