FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Petrone & Petrone [2021] FedCFamC2F 332
File number(s): NCC 2575 of 2017 Judgment of: JUDGE BETTS Date of judgment: 2 November 2021 Catchwords: FAMILY LAW – Property settlement – final hearing – husband seeks adjournment as his case is not ready for trial due to deficiency in his pleaded relief and his failure to join necessary parties (being the Trustees of a deceased estate in respect of which he seeks section 106B relief concerning the assets of the estate) – wife opposes the adjournment – adjournment granted – court to consider wife’s personal costs application against husband’s legal representatives on next occasion. Legislation: Family Law Act 1975, Pt VIII Cases cited: AON Risk Services Australia Limited v Australian National University [2009] HCA 27
Petrone & Petrone [2019] FCCA 2622
Division: Division 2 Family Law Number of paragraphs: 43 Date of last submission/s: 2 November 2021 Date of hearing: 2 November 2021 Place: Newcastle Counsel for the First Applicant: Ms Gillies SC
Mr GrahamSolicitor for the First Applicant: Gus Farland Pty Ltd Counsel for the Second Respondent: Mr Bateman Solicitors for the Respondent: Paton Hooke Lawyers ORDERS
NCC 2575 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PETRONE
Applicant
AND: MR PETRONE
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The trial dates of 2 and 3 November 2021 be vacated.
2.The final hearing of this proceeding is listed for 3 days with priority commencing at 10.00am on 28 February 2022.
3.Mr D and Ms C, the joint Executors and Trustees of the Estate of the Late Ms E be joined as the second respondents to these proceedings.
MATERIAL TO BE FILED & FILING DATES:
4.The Second Respondents are to file and serve a Notice of Address for Service within 7 days.
5.The First Respondent Husband is to file and serve a Second Further Amended Response which is to annex an amended Statement of Claim and any consolidated Affidavit of the Husband and any other witness he proposes to rely upon by close of registry filing on 7 December 2021.
6.The Applicant Wife is to file and serve any Amended Initiating Application, Consolidated Affidavit of herself annexing her defence or amended defence, and Consolidated Affidavit of any witness she relies upon by close of registry filing on 19 January 2022.
7.The Second Respondents are to file and serve a Response, any consolidated Affidavit of themselves annexing their defence, and any consolidated Affidavit of any witness they rely upon by close of registry filing on 19 January 2022.
SUBPOENAS, INSPECTION & PREPARATION OF TENDER BUNDLES
8.Any further subpoenae are to issue not later than 25 November 2021 and to be inspected no later than 29 January 2022.
9.Any addendum to the tender bundle be filed by close of registry filing on 18 February 2022.
CASE OUTLINE:
10.By close of registry filing on 25 February 2022 each party…
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CaseChat Overview and Summary
The court ordered that the trial dates of 2 and 3 November 2021 be vacated. The final hearing of the proceeding was listed for 3 days with priority commencing at 10.00am on 28 February 2022. The joint Executors and Trustees of the Estate of the Late Ms E were to be joined as the second respondents to these proceedings. The second respondents were to file and serve a Notice of Address for Service within 7 days. The respondent husband was to file and serve a Second Further Amended Response which was to annex an amended Statement of Claim and any consolidated Affidavit of the Husband and any other witness he proposed to rely upon by close of registry filing on 7 December 2021. The applicant wife was to file and serve any Amended Initiating Application, Consolidated Affidavit of herself annexing her defence or amended defence, and Consolidated Affidavit of any witness she relied upon by close of registry filing on 19 January 2022. The second respondents were to file and serve a Response, any consolidated Affidavit of themselves annexing their defence, and any consolidated Affidavit of any witness they rely upon by close of registry filing on 19 January 2022.
Orders
Orders of the court
NCC 2575 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS PETRONE
Applicant
AND:
MR PETRONE
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1. The trial dates of 2 and 3 November 2021 be vacated.
2. The final hearing of this proceeding is listed for 3 days with priority commencing at 10.00am on 28 February 2022.
3. Mr D and Ms C, the joint Executors and Trustees of the Estate of the Late Ms E be joined as the second respondents to these proceedings.
MATERIAL TO BE FILED & FILING DATES:
4. The Second Respondents are to file and serve a Notice of Address for Service within 7 days.
5. The First Respondent Husband is to file and serve a Second Further Amended Response which is to annex an amended Statement of Claim and any consolidated Affidavit of the Husband and any other witness he proposes to rely upon by close of registry filing on 7 December 2021.
6. The Applicant Wife is to file and serve any Amended Initiating Application, Consolidated Affidavit of herself annexing her defence or amended defence, and Consolidated Affidavit of any witness she relies upon by close of registry filing on 19 January 2022.
7. The Second Respondents are to file and serve a Response, any consolidated Affidavit of themselves annexing their defence, and any consolidated Affidavit of any witness they rely upon by close of registry filing on 19 January 2022.
SUBPOENAS, INSPECTION & PREPARATION OF TENDER BUNDLES
8. Any further subpoenae are to issue not later than 25 November 2021 and to be inspected no later than 29 January 2022.
9. Any addendum to the tender bundle be filed by close of registry filing on 18 February 2022.
CASE OUTLINE:
10. By close of registry filing on 25 February 2022 each party is to file and serve a Case Outline which:
(a) lists the documents relied upon by that party;
(b) contains a relevant chronology;
(c) in the case of the Husband and the Wife, annexes that party’s proposed Balance Sheet;
(d) in the case of the Husband and the Wife, contains a brief summary of the relevant evidence and contentions with respect to:
(i) whether it is just and equitable to adjust the respective property interests of the parties;
(ii) any contentious items in the Balance Sheet;
(iii) that party’s contributions-based entitlement expressed in percentage terms pursuant to s.79(4) or s.90SM(4) of the Family Law Act 1975 (Cth);
(iv) that party’s proposed adjustment expressed in percentage or dollar terms pursuant to s.75(2) or s.90SF(3) of the Family Law Act 1975 (Cth).
(e) in the case of the Second Respondent, sets out a summary of argument;
(f) annexes the precise minute of Orders sought.
OBJECTIONS TO EVIDENCE:
11. Parties exchange objections to evidence no later than 16 February 2022 with such objections to be dealt with at 9.30am on 18 February 2022.
PARTIES MUST ATTEMPT TO RESOLVE DISPUTE PRIOR TO HEARING:
12. No later than seven (7) days before the final hearing, each party is to make a written proposal to the other party setting out the terms upon which that party is willing to resolve all issues in dispute. Unless otherwise agreed in writing between the parties, such written proposals are “without prejudice” and only admissible on the issue of costs.
COSTS NOTICES:
13. Pursuant to r. 19.04(2) of the Family Law Rules, by no later than seven (7) days prior to the first day of trial each party’s lawyers are to provide to their client written notice of:
(a) the client’s actual costs both paid and owing and up to and including the trial;
(b) the estimated final costs of the party up to and including trial;
(c) any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of expenses.
14. Pursuant to r. 19.04(3) on the first day of trial each party’s lawyer must give to the court a copy of the notice given to the party pursuant to sub rule (2).
COSTS HEARING
15. The Wife’s costs thrown away of and incidental to this week’s hearing on an indemnity basis are listed for hearing on 16 December 2021 at 2.15pm.
16. The Wife file and serve written submission in support of her costs application which quantifies the costs claim (to the extent that this can be done) by close of registry filing on 2 December 2021.
17. The Respondent Husband’s solicitor (Mr Paton) and Counsel (Mr Bateman) are each to file and serve submissions in reply to the Wife’s application for costs by close of registry filing on 14 December 2021 NOTING THAT the Wife seeks a personal costs order against the Husband’s solicitor and counsel pursuant to rule 12.15(1)(b), 12.15(1)(c) and 12.15(1)(d) and 12.15(2)(c) and 12.15(2)(d) of the Federal Circuit and Family Court Rules 2021.
18. Mr D’s costs application for the inspecting of subpoena are reserved until 16 December 2021.
19. Mr D is to file and serve written submission in support of his costs application which quantifies the costs claim by close of registry filing on 2 December 2021.
PAYMENT OF HEARING FEES:
20. Unless a fee waiver has been obtained:
(a) The Respondent is to pay to the Family Law Courts at Newcastle the setting down fee and the fee for day 3 of hearing if applicable, by close of registry filing on 21 February 2022.
(b) The Applicant is required to pay the daily hearing fee for the second day of hearing and the fee for day 4 of the hearing if applicable, by close of registry filing on 21 February 2022.
NOTATION:
A. Parties and legal representatives are reminded of Rule 2.01(1) of the Federal Circuit Court Rules which is expected to be strictly complied with.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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