Rader & Rader
[2022] FedCFamC1F 375
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 husband reviews all of the orders made by a judicial registrar on 25 March 2022 covering various issues, including:
(a)the consensual dismissal of all outstanding interim and final applications made by the parties for parenting orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) (Order 1);
(b)the dismissal of the husband’s Application in a Proceeding filed on 23 March 2022, seeking a stay of the parties’ property dispute under Pt VIII of the Act pending the completion of two tortious causes of action brought by him and the parties’ elder child against the wife for damages in a State court (Order 2);
(c)the parties’ filing of updated Applications, Responses, financial statements and disclosure undertakings concerning the ongoing property settlement proceedings (Orders 3–5 and 8–9);
(d)financial disclosure between the parties (Orders 6–7);
(e)the appointment of a single expert to value the former family home (Orders 10–18);
(f)the parties’ notification of their superannuation funds of any superannuation splitting orders sought (Order 19);
(g)the parties’ preparation and filing of a draft balance sheet (Orders 20–23);
(h)the parties’ exchange of offers of settlement (Order 24); and
(i)the adjournment of the property settlement dispute to the next procedural hearing before the registrar on 3 June 2022 (Order 25).
The review application requires that the applications determined by the judicial registrar be heard de novo. So far as can be discerned, the only live application before the judicial registrar was the husband’s Application in a Proceeding filed on 23 March 2022.
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
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
Spouses may sue each other in tort (s 119).
There is, of course, no impediment to children suing their parents.
Consequently, the two tort proceedings before the State court are competent.
The husband wants to delay progress of the property settlement proceedings in this Court until the State proceedings are complete, but only due to misconception. The husband – in fact both parties – will derive advantage from the property settlement proceedings being determined before the common law tort proceedings. Finalisation of the proceedings in that sequential order enables the initial undistorted identification of their individual property interests.
Any liability borne by the wife pursuant to judgments entered in the tort proceedings should be met by her from her own property once the parties’ property interests have been adjusted under Pt VII of the Act. Conversely, any liability borne by the husband pursuant to an adverse costs order in the tort proceedings if his tort claim fails should similarly be met by him from his own property, following division of the parties’ property under Pt VII of the Act.
In that way, any liability arising in the tort proceedings will off-set against the judgment debtor’s own property received through these proceedings. If it were otherwise, the parties’ respective inter partes liabilities would comprise an integral part of their overall liabilities, subtracting from the gross value of their assets, and effectively be divided between them in proportional shares as part of the property adjustment process (Marsh v Marsh (1994) FLC 92-443; Kennon v Kennon (1997) FLC 92-757). No authority cited by the husband countermanded the principles distilled in Marsh and Kennon.
The husband’s application to stay the property settlement proceedings in this Court until after the tort proceedings are complete in the State court is dismissed.
Orders 3–24 – procedural orders
Once it is accepted the parties will accrue an overall advantage from these property settlement proceedings being determined quickly and preferentially prior to the tort proceedings, it is readily apparent that the procedural orders made by the judicial registrar for the update of their proposals and financial circumstances, financial disclosure, the acquisition of expert valuation evidence, the preparation of a draft balance sheet, and the exchange of reasonable offers of settlement are quite appropriate.
Orders 3–24 inclusive should not be disturbed.
Order 25 – next listing
The proceedings are next listed before the registrar for directions on 3 June 2022. The parties will be assisted by that court event being retained as it will help move the proceedings towards trial. The husband was unable to explain how it could be otherwise.
Disposition
The review application will be dismissed.
It was misconceived and so was wholly unsuccessful. The wife should be recompensed for the costs she incurred to needlessly defend the review application. Her financial circumstances are far inferior to the husband’s. His counsel submitted he owned a residential property in Sydney, estimated to be worth between $2 and $3 million, the wife had few if any assets, and he is contending for the outright dismissal of her property settlement application. Neither party usefully invoked any other provision of s 117(2A) of the Act as being relevant and persuasive.
The wife’s reasonable party/party costs of and incidental to the application are assessed, and therefore fixed, at $5,000.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 26 May 2022
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