Rivera & Rivera (No 2)
[2022] FedCFamC1F 458
•9 June 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Rivera & Rivera (No 2) [2022] FedCFamC1F 458
File number(s): SYC 868 of 2021 Judgment of: SCHONELL J Date of judgment: 9 June 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife sought to vacate the trial dates – Where the wife contended that the trial dates needed to be vacated because of the husband’s unresolved criminal proceedings and issues related to valuations – Where there is no prejudice caused to the wife – Wife’s application dismissed – Where the husband sought to appoint another expert valuer – Where the material before the Court did not satisfy appointment of another expert – Husband’s application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.08
Cases cited: McMahon v Gould (1982) 7 ACLR 202
West Australia v Bond Corporation Holdings Ltd (1992) 37 FCR 150; [1992] FCA 545
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 9 June 2022 Place: Sydney Solicitor for the Applicant: Finn Roache Lawyers Solicitor for the Respondent: KF Lawyers Australia ORDERS
SYC 868 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RIVERA
Applicant
AND: MS RIVERA
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
9 JUNE 2022
THE COURT ORDERS THAT:
1.Leave is granted to the wife to make an oral application for an adjournment of the final hearing dates commencing on Monday, 8 August 2022 for three days.
2.The wife’s oral application for an adjournment is dismissed.
3.Leave is granted to the husband to make an oral application for the appointment of another expert.
4.The husband’s oral application for the appointment of another expert is dismissed.
5.I make orders by consent in accordance with Orders 5, 7 and 18 of the husband’s proposed Minute of Orders as set out below:
5. On or before 17
JuneJuly 2022 each of the parties are to file and serve:a. an updating Financial Statement
b. a single, consolidated trial Affidavit relevant to their case
c.a single, affidavit of each witness including expert witnesses (subject to the rules or with leave) they intend to rely upon at trial
d.an undertaking as to disclosure in accordance with Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and all affidavits are to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
…
7.The Applicant shall not later than
2821 days prior to the trial date serve upon the Respondent a joint draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:a.the Respondent shall within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable)
b.wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy
c.upon completion of any Single expert valuation the balance sheet shall be amended to reflect determined/agreed values and
A final, settled version of the joint balance sheet shall be filed not later than 7 days prior to the trial date.
6.An Order is made in accordance with Order 18 of the husband’s proposed Minute of Orders (as amended) as set out below:
18.Where a party wishes to cross-examine a Single Court Expert Report writer at the final hearing, that party shall provide written confirmation to the Single Court Expert not less than
2 months3 weeks prior to the commencement of the trial. In the event this order is not complied with and the Single Court Expert writer is unavailable the Single Court Expert Report will be admitted into evidence without cross-examination subject only to evidentiary objection.
7.I make orders in accordance with Order 23 of the husband’s proposed Minute of Orders but deleting the words “the parties must agree on the sale price” as set out below:
23.That the following clause be included in the joint letter of instruction to [C Company] in relation to the sale of the [Suburb B] Property:
“10. Notwithstanding that the [Suburb B] property is in [Ms Rivera]’s name, as this is a matrimonial asset
the parties must agree on the Sale price. Accordingly, both their instructions are required. Please ensure that you communicate with both parties and their solicitors. You are authorised to provide all information and documentation in relation to the sale, without limitation please ensure that you provide us with your agency agreement.”
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 Rivera & Rivera has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
I intend to deliver some reasons. Firstly, I will deal with the wife’s application for an adjournment.
Wife’s ORAL application for an adjournment
This is an oral application brought by the wife to vacate final hearing dates in August of this year. The wife contends that the matter cannot proceed on the dates in August because there remain undetermined criminal and apprehended domestic violence order (“ADVO”) proceedings against the husband. The wife contends that the resolution of those proceedings and any findings made in them are relevant to aspects of her case for financial adjustment.
The wife also raises issues as to the matter not being able to proceed to a final hearing as the husband does not agree to an updated valuation as to the former matrimonial home.
It does not seem to me that this is a reason why the matter cannot proceed at a final hearing. If the valuation is not updated, then the matter will proceed on the existing valuation. The wife also raises an issue about the business valuation in that the husband contends he has no documents for the period leading up to separation contending that those documents are with the wife. The wife says she has no documents.
In the event that there are no documents, then clearly the valuation will not be able to be undertaken. If it is the case that it is established at trial that one of the parties has documents and they have not been disclosed, then the jurisprudence of this Court is well settled as to the consequences of non-disclosure.
The husband opposes the vacation of the hearing dates.
The final hearing dates were allocated on 6 May 2022 at the time of determination of an interlocutory financial proceeding between the parties.
There is a degree of irony in the application that the wife seeks, in that she joined in the application for the allocation of hearing dates.
The wife contends that at the time the final hearing dates were allocated, she assumed the pending Local Court proceedings would be heard in mid-2022. Subsequent to the allocation of the hearing dates, that matter was marked “not reached” and a further hearing date later in the year has been allocated. The wife contends that the proceedings before this Court should await the outcome of the Local Court proceedings.
The wife in her solicitor’s letter dated 25 May 2022, says the following on page 2:
Given the Local Court lists, it cannot be determined whether your client's matters will be concluded by then. Furthermore, if any witnesses are unable to attend due to illness (for example), the hearing of evidence cannot be completed. As such, there is a risk these criminal and ADVO proceedings will not be concluded by the time this matter is listed for Final Hearing [in mid] 2022, thereby causing significant prejudice for our client's application. We would have thought this also prejudices your client given that he has not pleaded guilty to the various offences and appears to dispute the allegations in his evidence.
Part of the wife’s application for financial adjustment seeks that the Court make findings in relation to matters of family violence that were said to be perpetrated upon her by the husband during the course of their 23 year relationship.
In the wife’s affidavit filed 26 April 2021 she says the following:
41. On 9 January 2021, [Mr Rivera] and I separated on a final basis. I left the [Suburb H] Property with our daughters due to [Mr Rivera’s] violence, aggression, control and abuse of myself and our daughters. On or about this date, [Mr Rivera] was aggressive towards me and attempted to throw a glass bottle at my head. Our daughters intervened to protect me from getting hit by a glass bottle that [Mr Rivera] attempted to throw at my head. We left with very little by way of possessions, and in fear. My sister was able to provide us with temporary accommodation until we could get help from police.
Urgent Need for Exclusive Occupation of the [Suburb H] Property
42. On about 9 January 2021, [Mr Rivera] committed a serious domestic violence offence against me in the presence of our daughters. He has been charged by NSW Police with the offence of stalking and intimidation. Due to fears for our safety, myself and our daughters left the [Suburb H] home with the clothes on our backs and a few items. We were too scared to stay longer and pack, and wanted to escape [Mr Rivera] as quickly as possible. We have been living outside of the [Suburb H] Property since 9 January 2021.
…
94. Since around 2008, [Mr Rivera] has been violent, aggressive, intimidating, and abusive towards me.
95. [Mr Rivera’s] family violence towards myself and our daughters became worse leading up to the date of separation, i.e. 9 January 2021.
…
97. On 9 January 2021 , myself and our daughters left the [Suburb H] Property because we had tolerated years of abuse and aggressive behaviour from [Mr Rivera], and it reached a point where we feared for our safety and well-being; it was becoming too much to tolerate and handle.
98. Over a number of years, [Mr Rivera] subjected myself and our daughters to family violence in many ways. The following is a list of non-exhaustive examples of [Mr Rivera]’ s family violence:
a. [Mr Rivera] made repeated threats and intimidated me both in the presence of our daughters, and to me directly without the girls. [Mr Rivera] would say words to the effect of “I will get revenge and I will hunt you down and not leave you alone. I will make you kiss my feet and beg me/or mercy”. Our daughters still remember these words and have nightmares about it. I am aware of this because our daughters tell me of their memories of these events and how it upset them.
b. On about 9 January 2021, [Mr Rivera] attempted to throw a glass beer bottle at me when I turned my back away from him. This was in the presence of our daughters and [Ms L] stopped [Mr Rivera] from throwing the bottle at me.
c. On 27 January 2021, [Ms L] provided a written statement to NSW Police in relation to the above incident.
…
The wife’s lawyer confirmed today that the charges brought by the husband relate to events that occurred at the time of separation or subsequently.
In my view, the wife’s application is misguided. It assumes that the husband will be found guilty by the Local Court. It also assumes that even if he were, that a finding of guilt would be materially relevant to a determination as to the matters that this Court has to consider under s 79. The finding of guilt in relation to events that occurred at the time of separation does not establish, on the balance of probabilities, the events complained of by the wife in the 23 year period prior to separation.
In McMahon v Gould (1982) 7 ACLR 202, Wootton J said that in deciding whether to stay civil proceedings, the Court must consider whether it is a real and not merely notional danger of injustice. His Honour set out at 206–207:
I approach the decision of this matter with the following guidelines:
(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;
(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;
(d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
(e) The court's task is one of “the balancing of justice between the parties”, taking account of all relevant factors;
(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;
(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's “right of silence”, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding. I return to this subject below;
(h) However, the so-called “right of silence” does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;
(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;
(j) In this regard factors which may be relevant include:
(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;
(ii) the proximity of the criminal hearing;
(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;
(v) whether the defendant has already disclosed his defence to the allegations;
(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him;
(k)The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;
(Citations omitted)
In West Australia v Bond Corporation Holdings Ltd (1992) 37 FCR 150, French J referred, with approval, to the guidelines identified by Wootton J and at 172 said as follows:
… Consistently with that statement the court will ordinarily allow proceedings in which its jurisdiction has been properly invoked to progress to trial and determination unless the legitimate interests of the parties and the administration of justice require otherwise. The judgment to be made is essential normative and requires a balancing of factors of the kind referred to in the judgment of Wootten J.
Remarkably, in this case, the husband, the party for whom it could be said the greatest risk is faced with incrimination, seeks that the hearing go ahead.
Section 67 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act) provides:
67. Overarching purpose of family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Section 68(1) of the FCFCOA Act provides:
68. Parties to act consistently with the overarching purpose
(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
A party has a right to have their action heard without delay.
Balancing the competing prejudices and injustices of the case, I am not satisfied that there is any prejudice caused to the wife by the vacation of the hearing dates. Acceding to such an application would, in the circumstances of this matter, be inconsistent with the overarching purpose of the family law practice and procedure.
I dismiss the application for an adjournment.
Husband’s oral application for the appointment of another expert
The husband makes an oral application for the appointment of another expert, namely Mr J of M Valuers. It is contended by the husband’s lawyer that another expert is required to be appointed because of problems with the methodology of the existing jointly appointed valuer, Mr K.
The circumstances in which the Court will appoint another expert are well settled and set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 7.08 provides that the Court may allow or appoint another expert if there is a substantial body of opinion contrary to any opinion given by the single expert; whether the expert knows of matters not known to the single expert; or there is another special reason for adducing evidence.
I am not satisfied on the material that I have heard today that it is appropriate for the appointment of a new expert. In my view, if it be the case that it is established through cross-examination that the existing valuer has not adequately disclosed the methodology or reasoning that would enable the Court to assess his valuation, then it may well be that the Court orders a sale of the property.
I dismiss the application for the appointment of a new expert.
Minute of Proposed Orders
Otherwise, there was sought to be tendered today a Minute of Order amending some aspects of the existing Court orders.
I am told that proposed Orders 5 and 7, amending the existing timetable, can be made without objection and I will make those orders.
I am told that there is an objection to the amendments to the timetable in proposed Orders 11 and 12. I do not propose to amend the timetable in that respect but will make the amendment to the timetable as proposed in proposed Order 18.
Otherwise, the husband sought an amendment to the existing orders in relation to the instructions for sale of the Suburb B property. I propose to make the order as proposed by the husband, but to delete from the second line of that proposed order the words “the parties must agree on the sale price” as this was not objected to by the wife.
I do not propose to make Orders 24 or 25 as proposed in the Minute of Order.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 29 June 2022
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