FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rader & Rader [2022] FedCFamC1F 375
File number(s): SYC 1641 of 2019 Judgment of: AUSTIN J Date of judgment: 12 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Where the husband seeks a review of the orders of a judicial registrar covering various issues including parenting, property and procedure – Parenting –Where the orders were made by consent and the parties did not seek to agitate any dispute in respect of the children – Property – Where the husband seeks a stay of the parties’ dispute pending the completion of two tortious causes of action before a State court – Where the application is misconceived and both parties will derive advantage from the property settlement proceedings being determined before the common law tort proceedings – Where the procedural orders made in the property proceedings should also not be disturbed – Application dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, ss 119, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Divs 7.14, 7.1.5, rr 5.01, 5.07, 7.01
Cases cited: Harris v Caladine (1991) 172 CLR 84
Kennon v Kennon (1997) FLC 92-757
Marsh v Marsh (1994) FLC 92-443
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 12 May 2022 Place: Newcastle (via video link) Counsel for the Applicant: Ms Messner Solicitor for the Applicant: Dettmann Phair Lawyers Counsel for the Respondent: Ms Bridger Solicitor for the Respondent: Swiftly Legal ORDERS
SYC 1641 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RADER
Applicant
AND: MR RADER
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
12 MAY 2022
THE COURT ORDERS THAT:
1.The Application for Review filed on 14 April 2022 is dismissed.
2.The husband shall pay the wife’s party/party costs of and incidental to the review application in the fixed sum of $5,000.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rader & Rader has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
Before the Court for determination today (12 May 2022) is an Application for Review, filed by the husband, which is opposed by the wife.
The…
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- Case
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CaseChat Overview and Summary
The review application in the case of Rader & Rader was filed by the husband, who sought to challenge the judicial registrar's orders that dismissed his application to stay the parties' property dispute pending the outcome of two tortious causes of action in the District Court of New South Wales. The wife filed a counter-application to dismiss the husband's review application. The husband argued that the judicial registrar should have stayed the property dispute proceedings in the Family Court, pending the resolution of the tort actions. The wife contended that the husband had not demonstrated a proper basis to warrant a stay of the proceedings and that the husband's tort claims were speculative and did not warrant any stay. The legal issues for the court to decide were whether the judicial registrar erred in dismissing the husband's application for a stay of the property settlement proceedings and whether the husband had demonstrated a proper basis to warrant a stay.
The court found that the husband had not demonstrated a proper basis to warrant a stay of the proceedings. The court held that the husband had not provided any evidence to support his claims of malicious prosecution and trespass, and that the husband's tort claims were speculative and did not warrant any stay. The court further found that the husband had not demonstrated that the stay of the property settlement proceedings was necessary to ensure a fair trial in the tort actions. The court held that the husband's review application ought to be dismissed, and that the judicial registrar's orders should remain intact. The court found that the parties had voluntarily separated and that the children were no longer living with the wife. The court held that the husband had not demonstrated that a stay of the property settlement proceedings was necessary to protect any interests of the children.
The court dismissed the husband's review application and confirmed the judicial registrar's orders. The court found that the husband had not demonstrated a proper basis to warrant a stay of the property settlement proceedings and that the husband's tort claims were speculative and did not warrant any stay. The court held that the judicial registrar's orders should remain intact and that the husband's review application ought to be dismissed. The court did not make any orders in respect of the husband's tort claims or the stay of the property settlement proceedings.
The court found that the husband had not demonstrated a proper basis to warrant a stay of the proceedings. The court held that the husband had not provided any evidence to support his claims of malicious prosecution and trespass, and that the husband's tort claims were speculative and did not warrant any stay. The court further found that the husband had not demonstrated that the stay of the property settlement proceedings was necessary to ensure a fair trial in the tort actions. The court held that the husband's review application ought to be dismissed, and that the judicial registrar's orders should remain intact. The court found that the parties had voluntarily separated and that the children were no longer living with the wife. The court held that the husband had not demonstrated that a stay of the property settlement proceedings was necessary to protect any interests of the children.
The court dismissed the husband's review application and confirmed the judicial registrar's orders. The court found that the husband had not demonstrated a proper basis to warrant a stay of the property settlement proceedings and that the husband's tort claims were speculative and did not warrant any stay. The court held that the judicial registrar's orders should remain intact and that the husband's review application ought to be dismissed. The court did not make any orders in respect of the husband's tort claims or the stay of the property settlement proceedings.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow, the review application is dismissed and the judicial registrar’s orders therefore remain intact.Background The parties physically separated in August 2017, though there may be some dispute about when their marriage broke down irretrievably. Proceedings under the Act were commenced by the wife in March 2019, after which followed a plethora of interlocutory applications and court events resulting in multiple interim parenting and procedural orders. In mid-2020, the husband commenced tort proceedings against the wife in the District Court of NSW. By way of remedy, he seeks damages for malicious prosecution and trespass. In early 2022, the elder child also commenced tort proceedings against the wife in the District Court of NSW seeking damages for assault and battery, which claim is prosecuted by the husband on her behalf as her litigation tutor. On 23 March 2022, the husband filed an Application in a Proceeding seeking orders to stay the parties’ property dispute under Pt VIII of the Act pending the completion of the two tortious causes of action pending before the State court On 25 March 2022, the judicial registrar made the orders summarised above. The husband filed his Application for Review of those orders on 14 April 2022. Evidence To prosecute the review application the husband relied upon:(a)the affidavit he filed on 23 March 2022 in support of his former Application in a Proceeding; and(b)the affidavit he filed on 14 April 2022 in support of the review application. The father also announced his intention (not his application) by emails circulated on 9 and 10 May 2022 to rely upon:(a)a report prepared by a psychologist on 22 April 2022, which purported to comment upon the psychological diagnoses and treatment of the husband and two children; and(b)a “tender bundle”, comprising some 127 pages. In respect of the psychologist: she was not appointed as a single expert; permission was neither sought nor granted to adduce her evidence as an adversarial expert; it is unclear from the report whether she is a treating psychologist and, even if she is, the contents of the report go well beyond the type of evidence contemplated by r 7.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and do not exhibit compliance with Divs 7.1.4 and 7.1.5 of the Rules. In any event, the commentary of the psychologist seemingly had no relevance to the relief sought by the husband under the auspices of the review application. The husband abandoned reliance upon the report. In respect of the tender bundle, the husband conceded he could not demonstrate either the relevance or probative value of the constituent documents to any issue in dispute on the review application. The wife, by an email sent on 11 May 2022, informed of her intention (not her application) to rely upon:(a)her affidavit filed on 11 May 2022; and(b)a “Court Bundle of documents”, comprising some 51 pages. At the hearing, when faced with the question of why she ought be permitted to rely upon such evidence, given the affidavit was filed and served late (r 5.07 of the Rules) and she could not demonstrate either the relevance or probative value of the affidavit and documents to any issue in dispute on the review application, the wife abandoned reliance upon the evidence.Order 1 – dismissal of parenting proceedings
Evidence
Evidence Before The Court
The husband filed his Application for Review of those orders on 14 April 2022. Evidence To prosecute the review application the husband relied upon:(a)the affidavit he filed on 23 March 2022 in support of his former Application in a Proceeding; and(b)the affidavit he filed on 14 April 2022 in support of the review application. The father also announced his intention (not his application) by emails circulated on 9 and 10 May 2022 to rely upon:(a)a report prepared by a psychologist on 22 April 2022, which purported to comment upon the psychological diagnoses and treatment of the husband and two children; and(b)a “tender bundle”, comprising some 127 pages. In respect of the psychologist: she was not appointed as a single expert; permission was neither sought nor granted to adduce her evidence as an adversarial expert; it is unclear from the report whether she is a treating psychologist and, even if she is, the contents of the report go well beyond the type of evidence contemplated by r 7.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and do not exhibit compliance with Divs 7.1.4 and 7.1.5 of the Rules. In any event, the commentary of the psychologist seemingly had no relevance to the relief sought by the husband under the auspices of the review application. The husband abandoned reliance upon the report. In respect of the tender bundle, the husband conceded he could not demonstrate either the relevance or probative value of the constituent documents to any issue in dispute on the review application. The wife, by an email sent on 11 May 2022, informed of her intention (not her application) to rely upon:(a)her affidavit filed on 11 May 2022; and(b)a “Court Bundle of documents”, comprising some 51 pages. At the hearing, when faced with the question of why she ought be permitted to rely upon such evidence, given the affidavit was filed and served late (r 5.07 of the Rules) and she could not demonstrate either the relevance or probative value of the affidavit and documents to any issue in dispute on the review application, the wife abandoned reliance upon the evidence.Order 1 – dismissal of parenting proceedings This order, on its face, was made by consent. That does not prevent the husband from applying to review the order (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164), but he proposed no order in substitution for it within his review application, nor did he ultimately contend in any way for its discharge. The orders sought by way of review relate only to the stay of the property settlement proceedings. It is evident the parties do not seek to agitate any dispute in respect of the children under Pt VII of the Act, who are now aged 17 and 15 years. They voluntarily live with the husband, who admits that a current apprehended violence order made by a State court precludes any form of contact between the wife and the children for longer than the remainder of their minority. Order 1 reflects the parties’ respective pragmatic positions and ought not be disturbed. Any interim parenting orders made whilst the parenting proceedings were pending were discharged upon the order being made to finally dispose of the parenting cause (r 5.01 of the Rules).Order 2 – stay of property settlement proceedings
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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