Ristic & Tarcan (No 2)
[2024] FedCFamC2F 1610
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ristic & Tarcan (No 2) [2024] FedCFamC2F 1610
File number(s): BRC 12993 of 2023 Judgment of: JUDGE BERTONE Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – Property – Failure to file amended response – Failure to articulate quantum of litigation funding sought – Oral application for litigation funding dismissed Legislation: Family Law Act 1975 (Cth) ss 79, 90SM, 106B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 27 Date of last submission/s: 8 November 2024 Date of hearing: 8 November 2024 Place: Brisbane Counsel for the Applicant: Mr Mason Solicitor for the Applicant: KMB Legal Counsel for the First Respondent: Mr Carlton Solicitor for the First Respondent: Bennett Carroll Solicitors For the Second Respondent: There being no appearance for or on behalf of the Second Respondent ORDERS
BRC 12993 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RISTIC
Applicant
AND: MR TARCAN
First Respondent
MR MAKRIDIS
Second Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS:
Oral Application Dismissed
1.The First Respondent’s oral application for litigation funding be dismissed.
Valuation Funding
2.B Pty Ltd shall pay for the valuation of the Applicant Wife’s chattels in the first instance and the quantum of the Wife’s contribution be determined at the final hearing.
Trial Directions
3.The matter be adjourned for final hearing of no more than two (2) days commencing at 10.00am on 27 March 2025 in the Federal Circuit and Family Court of Australia (Division 2) at Brisbane.
4.The matter is listed for a compliance hearing at 9.30am on 13 March 2025 in the Federal Circuit and Family Court of Australia (Division 2) in Brisbane.
5.By no later than 4.00pm on 25 February 2025, the Applicant file and serve on each other party:
(a)Any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)An updated single consolidated trial Affidavit;
(c)Any other witness Affidavits upon which they intend to rely; and
(d)An updated Financial Statement.
6.By no later than 4.00pm on 4 March 2025, the First and Second Respondent file and serve on each other party:
(a)Any Amended Response setting out with particularity the precise final orders sought;
(b)An updated single consolidated trial Affidavit;
(c)Any other witness Affidavits upon which they intend to rely; and
(d)An updated Financial Statement.
7.The Applicant file and serve an Affidavit strictly in reply only by no later than 4.00pm on 11 March 2025.
8.No party may rely on any Affidavit or Financial Statement filed after the dates for filing without leave of the Court first had and obtained.
9.No party may rely on more than one consolidated trial Affidavit of their evidence in chief, one Affidavit in reply and one Affidavit from any witness they intend to call in support of their case.
10.In the event that either party wishes to cross examine an expert at the final hearing, that party must provide written notice to that expert and to the other party of such intention no later than 4.00pm on 6 March 2025.
11.By no later than 4.00pm on 6 March 2025:
(a)Each party shall confirm in writing to the other party that they have made full disclosure to the other side;
(b)Each party shall exchange a formal offer of settlement pursuant to rule 4.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
12.Each party file and serve an Outline of Case document by no later than 4.00pm on 20 March 2025, setting out:
(a)A precise minute of order sought;
(b)The list of documents to be read in their case;
(c)A chronology; and
(d)A brief summary of argument.
13.Any objections to evidence are to be exchanged by no later than 4.00pm on 24 March 2025 and that by no later than 4.00pm on 25 March 2025, a schedule of objections that are conceded and objections that remain in dispute are to be emailed to the Chambers of Judge Bertone (…@...).
14.The parties are to confer, complete and file by no later than 4.00pm on 24 March 2025 a joint balance sheet setting out:
(a)The parties’ assets and liabilities;
(b)All agreed values; and
(c)The values for items in dispute (if any).
15.If parties seek to provide the Court with a tender bundle, such proposed tender bundle/s:
(a)Are to be exchanged with all parties no later than 4.00pm 24 March 2025; and
(b)The proposed tender bundle is to be provided to the Court, in a printed format, at the commencement of the final hearing; and
(c)Relevant documents from the proposed tender bundle/s can be tendered individually during the proceedings.
16.Any documents sought to be tendered at the trial must be made in triplicate.
17.By no later than 4.00pm on 25 March 2025, the parties are to provide a joint trial plan to Chambers of Judge Bertone (…@...) to include:
(a)A list of issues requiring determination;
(b)The names of all witnesses required for cross-examination; and
(c)A reasonable estimate of time each party expects to cross-examine each witness.
18.The parties have liberty to vacate the adjourned date if terms of settlement are filed together with a joint letter addressing the issues of justice and equity and in the event of any superannuation splitting order, evidence of procedural fairness being afforded to the trustee of any relevant fund.
19.Inspection of documents produced in response to any subpoena is required to take place prior to 27 March 2025. Inspection of any subpoenaed documents on the day of the hearing is not permitted.
20.In the event a party fails to file material in accordance with these Orders and/or fails to attend Court on the adjourned dates, the matter may proceed by way of undefended final hearing and/or Orders may be made in that party’s absence.
Costs Reserved
21.The Applicant Wife’s costs be reserved.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BERTONE
These are the settled reasons of a judgment I delivered ex tempore. Corrections have been made, where appropriate, to correct grammatical errors, to add citations and legislative provisions for ease of comprehension. The substance is unchanged.
This matter before me today is a Directions Hearing for, effectively, competing property applications. The parties were in a de facto relationship, on the Applicant Wife's case, from 2014 until separation in April 2023.
By her further amended Initiating Application filed 28 August 2024, the Applicant Wife seeks a suite of orders, including property adjustment, pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”), of 70 per cent to her and 30 per cent to the First Respondent, in addition to an order pursuant to section 106B to set aside certain transactions entered into by the First Respondent without notice to the Applicant.
The matter came before me on 31 July 2024 when both the Applicant and First Respondent were represented by Solicitors and Counsel. I note that the First Respondent's Solicitors and Counsel appearing before me today are not the same as those representing him before me on 31 July 2024.
On that day, certain orders were made by consent in relation to injunctions to freeze bank accounts that were either in the First Respondent's name or in his control. On that day, I also made an order joining a third-party, Mr Makridis, as the Second Respondent. Mr Makridis and the First Respondent have had a business relationship which, on the Applicant's case, has resulted in significant moneys being transferred to Mr Makridis by the First Respondent in the post-separation period in the order of $410,250.
Before me today, Mr Carlton, representing the First Respondent, seeks an order for some moneys to be released from the frozen bank accounts to enable the First Respondent to be legally represented at the trial that I will allocate to this matter.
I have had regard to the Affidavit filed by the First Respondent on 7 November 2024, even though it was filed less than the period required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and contrary to any orders I made for filing of material. I have also had regard to the Applicant's Financial Statement filed 7 November 2024.
The Applicant has filed a certificate of readiness on 7 November 2024 which sets out an asset pool that both Counsel for the Applicant, Mr Mason, and Counsel for the First Respondent, Mr Carlton, took me to. On any view of the case, this asset pool does not comprise significant assets.
Currently, the largest asset available for division in some way, are the funds frozen in the First Respondent's control which total $184,711. The balance of the items in the asset pool are three motor vehicles which are valued at $197,000, frequent flyer points, some investments and superannuation.
The Applicant and First Respondent also have significant FEE-HELP debts, and they have superannuation each of similar amounts. The Applicant has $69,090 worth of super and the First Respondent has $66,190.
The issue the Applicant presses before me today is that significant moneys have been transferred to the Second Respondent who has not appeared today despite being joined on 31 July 2024. The Applicant also asserts that the First Respondent has engaged in wastage of value in the entities in the order of $543,137.
On 31 July 2024, I made an order for the First Respondent to file a Response to the further Amended Initiating Application that was to be filed by the Applicant on 28 August 2024, and that the First Respondent was to do so by 25 September 2024. He has not done so. I do not have his Response to the Applicant's application for, in particular, orders pursuant to section 106B of the Act, and this is contrary to the order that I made that he do so.
I note that in the previous hearing before me, disclosure produced by the First Respondent was in issue, and I was told from the bar table today that some inroads had been made by the First Respondent providing his outstanding disclosure given that he had engaged new lawyers in the last fortnight. I do note that from the date the First Respondent was previously legally represented that representation ceased on 12 August 2024, and by the First Respondent's own Affidavit, he engaged his new lawyers on 21 October 2024.
The First Respondent claims that he has no moneys with which to pay his legal fees so that he can properly prepare for trial. He claims that he has a medical condition that will make his self-representation in this matter difficult, and he asks for an order releasing some moneys, although I do not know how much, to him by way of litigation funding.
Mr Carlton submits that the litigation funding order should be made under section 79 of the Act, and to do so, I would have to be satisfied that it is just and equitable in all the circumstances to make a litigation funding order in the First Respondent's favour.
The Financial Statement of the First Respondent identifies that he is still the director of one of the entities included in the asset pool, being B Pty Ltd, but that he is not drawing any income.
Exhibit 1, tendered by the Applicant, is a bank statement for the First Respondent's credit card which shows that certain expenses are being paid by the company on the First Respondent's behalf, including living expenses and travel expenses.
I am told from the bar table that at the time of the last hearing before me on 31 July 2024, when I was told that the First Respondent was in Country C attending to sick family members, he left Country C at some time after that hearing and then went to City D.
There is no evidence about this before me. The First Respondent does not depose to any further travel, does not depose to the reason for that travel, does not depose to the expenses of that travel, does not depose to how it was that he was able to fund that travel. There is no evidence about how long he was there. There is no evidence about how much his flights were and who paid for those flights. There is no evidence about how much he paid for flights from Country C to Australia, even if it was via City D. The absence of the evidence from the First Respondent, in my view, is detrimental to his argument for convincing me that he is impecunious.
One of the things I have to consider in making a litigation funding order is to look at the relative financial strengths of the parties including in respect of the First Respondent.
At this stage, the First Respondent has not adequately responded to the Applicant's allegations that he has wasted more than $400,000 by transferring those moneys to a third party, and more than $500,000 in a wasteful way. The Applicant's case for trial is that these moneys have been wasted by the First Respondent in a way to dissipate the assets to deny her, her rightful entitlement. I do not know what the First Respondent's case is, again, because I do not have his Response document, and his Affidavit does not tell me what his ultimate claim will be.
The First Respondent's Affidavit speaks to being financially assisted by his parents. I have no evidence from the parents as to what their financial circumstances are and as to whether or not they are able to continue to meet his legal fees. He also says in his Affidavit that they are assisting to help him with his living expenses.
The difficulty for the First Respondent to succeed in this matter is that he has failed to explain, in any meaningful way, the manner in which he has disposed of more than $400,000 to a third party. I asked Counsel for the First Respondent if the First Respondent was in communication with the Second Respondent and the First Respondent had to concede that the last communication he had with the Second Respondent was on 30 September 2024. This was in an email exchange that had been disclosed to the Applicant.
I am not satisfied that it is just and equitable in all the circumstances for the freezing order to be dissolved sufficiently to enable some moneys to be given to the First Respondent to be legally represented at the trial. No disrespect to Mr Carlton, but I do not consider that this matter is overly complicated. It is a simple matter of where did the money go.
The contributions that each of these parties have made to the assets is a matter of their own evidence and does not need any expert evidence to be adduced about the contributions. Whether or not the First Respondent is going to run some kind of argument about his medical issues, well, then, that needs to be substantiated by medical evidence which, at this juncture, I am not satisfied that I have sufficient evidence to accept at this point in time that the First Respondent has a medical condition that would preclude him from representing himself.
The First Respondent, in his Affidavit, states that he is a Company Director and his Counsel told me that he went to City D for business. This tells me that he is able to work, although he does not draw an income. I am not satisfied that he does not have the capacity to meet his own financial needs, and I am not satisfied that it is appropriate to make a litigation funding order.
I will allocate the matter a two-day hearing as soon as I can and I will make further directions for trial. The First Respondent’s oral application for litigation funding is dismissed and I will reserve the Applicant’s costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Bertone. Associate:
Dated: 15 November 2024
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