Peterson and Davis & Ors - [2020] FamCA 723

FAMILY COURT OF AUSTRALIA

PETERSON & DAVIS AND ORS

[2020] FamCA 723

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment of proceedings – Rule 11.01 of the Family Law Rules 2004 (Cth) – Where party in custody bail refused – Where s 77 order under the Crimes (Administration of Sentences) Act 1999 (NSW) for that party to attend by phone unable to be implemented by reason of coronavirus difficulties – Where appropriate for the Court to adjourn proceedings.

Crimes (Administration of Sentences) Act 1999 (NSW) s 77
Family Law Act 1975 (Cth) s 102NA
Family Law Rules 2004 (Cth) rr 8.04, 11.01

Davis and Anor & Cusson and Ors [2018] FamCA 119

APPLICANT:

Ms Peterson

FIRST RESPONDENT:

Mr Davis

SECOND RESPONDENT:

Mr Cusson

THIRD RESPONDENT:

Mr B Davis

FOURTH RESPONDENT:

Ms Davis

FILE NUMBER:

PAC

1208

2016

DATE DELIVERED:

1 September 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

10 and 11 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Reimers Legal

COUNSEL FOR THE FIRST RESPONDENT:

Mr Sansom SC

SOLICITOR FOR THE FIRST RESPONDENT:

Adams & Partners Lawyers

COUNSEL FOR THE SECOND RESPONDENT:

Mr Marshall SC with him Mr Eardley

SOLICITOR FOR THE SECOND RESPONDENT:

Mercantile Legal Services

COUNSEL FOR THE THIRD RESPONDENT:

Mr Allen

SOLICITOR FOR THE THIRD RESPONDENT:

McEvoy Legal

COUNSEL FOR THE FOURTH RESPONDENT:

Mr Allen

SOLICITOR FOR THE FOURTH RESPONDENT:

McEvoy Legal

ORDERS MADE ON 11 AUGUST 2020

With The Consent of the Applicant And The Second Respondent And Upon Noting There Is No Appearance By Or On Behalf Of The First Respondent Husband And The Third And Fourth Respondents Not Wishing To Be Heard, It Is Ordered That

The property known as C Street Suburb B New South Wales being the land and improvements comprised in folio identifier … (Suburb B Property) be sold.
The Second Respondent be authorised and directed to sell the Suburb B Property.
The Second Respondent’s powers for the purposes of the sale of the Suburb B Property are as follows:
(a)The power to execute a Contract for Sale and Transfer for the sale of the Suburb B Property on behalf of the First Respondent and himself.
(b)The power to authorise the First Mortgagee to the Suburb B Property to discharge its mortgage.
(c)The power to engage a sales agent for the purposes of the sale of the Suburb B Property.
(d)The power to engage a solicitor to act on the conveyance of the Suburb B Property and, if necessary, to obtain vacant possession of it.
(e)The power to remove and store chattels contained on or in the Suburb B Property.
(f)The power to affect any necessary repairs to present the Suburb B Property for sale.
(g)The power to obtain an updated valuation of the Suburb B Property, if necessary.
(h)The power to set the sale price and a reserve price for auction if necessary, having regard to the valuation he holds.
In regards to any…

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.

Continue reading Peterson and Davis & Ors

Details

AGLC: Peterson and Davis & Ors [2020] FamCA 723
Case: [2020] FamCA 723
Decision Date: 1 September 2020

CaseChat Overview and Summary

In *Peterson and Davis & Ors*, Foster J of the Family Court of Australia considered an application for an adjournment of proceedings. The first respondent, who was in custody and had been refused bail, was unable to attend the proceedings by phone as initially ordered under s 77 of the *Crimes (Administration of Sentences) Act 1999* (NSW) due to difficulties arising from the coronavirus pandemic.

The primary legal issue before the Court was whether it was appropriate to grant an adjournment of the proceedings, given the first respondent's inability to participate remotely and the practical challenges presented by his custodial status during the pandemic. The Court also had to consider the implications of this inability to participate on the conduct of the proceedings and the potential for prejudice to the parties.

Foster J applied Rule 11.01 of the *Family Law Rules 2004* (Cth), which governs adjournments. The Court reasoned that the circumstances, including the first respondent's custodial status and the unforeseen difficulties in facilitating his participation by telephone, warranted an adjournment. The Court acknowledged the need to balance the efficient progression of litigation with the fundamental right of a party to participate in proceedings affecting their interests.

The Court made consent orders for the sale of a property, authorising the second respondent to manage the sale and outlining the distribution of proceeds. The Court also reserved costs thrown away by reason of the adjournment and made directions regarding the filing of submissions on costs. Further orders addressed the cross-examination of parties, noting the potential for family violence and the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme. The matter was adjourned, with liberty to relist in the event the first respondent was granted bail.

Orders

Orders of the court

ORDERS MADE ON 11 AUGUST 2020

1. The property known as C Street Suburb B New South Wales being the land and improvements comprised in folio identifier … (Suburb B Property) be sold.

2. The Second Respondent be authorised and directed to sell the Suburb B Property.

3. The Second Respondent’s powers for the purposes of the sale of the Suburb B Property are as follows:

3. (a) The power to execute a Contract for Sale and Transfer for the sale of the Suburb B Property on behalf of the First Respondent and himself.

3. (b) The power to authorise the First Mortgagee to the Suburb B Property to discharge its mortgage.

3. (c) The power to engage a sales agent for the purposes of the sale of the Suburb B Property.

3. (d) The power to engage a solicitor to act on the conveyance of the Suburb B Property and, if necessary, to obtain vacant possession of it.

3. (e) The power to remove and store chattels contained on or in the Suburb B Property.

3. (f) The power to affect any necessary repairs to present the Suburb B Property for sale.

3. (g) The power to obtain an updated valuation of the Suburb B Property, if necessary.

3. (h) The power to set the sale price and a reserve price for auction if necessary, having regard to the valuation he holds.

4. In regards to any chattels removed from the Suburb B Property by the Second Respondent, the Second Respondent shall be authorised to place those chattels in commercial storage for six (6) months, such storage fees to be paid from the proceeds of sale.

5. The Second Respondent shall provide access to the Parties or any other person asserting ownership of those chattels for the purpose of inspecting the same and shall be authorised to release claimed chattels on reasonable proof of ownership, and otherwise shall be authorised to dispose of the remaining chattels after six (6) months.

6. The sale of the Suburb B Property by the Second Respondent may be carried out by auction or private treaty as the Second Respondent sees fit.

7. The proceeds of the sale of the Suburb B Property are to be paid as follows:

7. (a) To adjustments for rates and land tax.

7. (b) Sales agent’s commission and the cost of conveyance.

7. (c) The amount required to discharge the first registered mortgage.

7. (d) The legal costs, if any, involved in taking possession of the Suburb B Property.

7. (e) The cost of chattel storage for up to six (6) months and disposal of the chattels.

7. (f) The remuneration of the Second Respondent for conducting the sale charged at his usual rates limited, until further order, to a maximum amount of $10,000.

7. (g) The balance to be held by the Second Respondent in his trust account until further order.

It Is Further Ordered That

8. Liberty to apply as to implementation or enforcement of the above orders.

9. The First Respondent have leave to apply in relation to the orders made today on short notice by filing an Application in a Case supported by affidavit.

10. The costs thrown away by reason of the adjournment of the Applicant, the Second Respondent and the Third and Fourth Respondents be reserved.

11. Each of the Applicant, the Second, Third and Fourth Respondents in the event that there is any application for costs thrown away by reason of the adjournment, file and serve short written submissions by no later than Friday, 28 August 2020.

12. Any submissions in response by the First Respondent be filed and served by no later than Friday, 11 September 2020.

13. Thereafter judgment be reserved to chambers.

14. The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Friday, 25 September 2020.

15. The solicitor for the Third and Fourth Respondents use their best endeavours to provide to the First Respondent a sealed copy of the orders made today with such notification informing the First Respondent that in the event that he seeks to make any application relating to the orders made he may do so on short notice by filing an Application in a Case and any affidavit in support thereof.

16. Leave is granted to the parties or any of them to relist the matter for further judicial case management in circumstances where the First Respondent is granted bail pending hearing of certain criminal charges.

UPON NOTING that the parties intend to cross-examine each other at the trial of the proceedings, and that there is an allegation of family violence between them:

AND UPON FURTHER NOTING that the parties have each been advised by the Court:

(a) That pursuant to these orders, neither party may cross-examine the other party personally;

(b) That pursuant to these orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(c) As to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d) That a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.

It Is Ordered that

17. The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.

18. Short reasons for judgment in respect of the interim orders made today and the adjournment to be published on a date to be advised.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peterson & Davis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.