Saito & Eichel
[2023] FedCFamC1F 77
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Saito & Eichel [2023] FedCFamC1F 77
File number: SYC 5342 of 2020 Judgment of: CAMPTON J Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Proceedings listed for final hearing over ten days – Dispute as to whether the parties’ interests in a trust (if any) are property of the parties for the purpose of s 79 of the Family Law Act 1975 (Cth) – Where the current trial directions provide for the sequential filing of affidavit material – Where the wife seeks that the trial directions be amended such that she and the husband simultaneously file affidavit material with a capacity to file material in reply – Consideration of the Court’s Central Practice Directions – Application for simultaneous filing refused – Extension of time for the parties to file and serve affidavits to be relied upon at trial. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 8.1, r 1.04
Federal Circuit and Family Court of Australia Central Practice Direction – Family Law Case Management, 28 November 2022
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 17 February 2023 Place: Sydney Solicitor for the Applicant: Mr Burreket, Broun Abrahams Burreket Counsel for the Respondent: Mr Richardson SC Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 5342 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAITO
Applicant
AND: MR EICHEL
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
17 FEBRUARY 2023
THE COURT ORDERS THAT:
1.By consent, orders be made in accordance with paragraphs 1 to 10 of the Minute of Order marked Exhibit 1 and attached hereto.
2.The time for the wife to comply with Order 7 as made 15 July 2022 be extended to 21 April 2023.
3.The time for the husband to comply with Order 8 made 15 July 2022 is extended to 12 May 2023.
4.The time for the wife to comply with Order 9 made 15 July 2022 is extended to 31 May 2023.
5.The time for compliance with Order 10 made 15 July 2022 is extended to 31 May 2023.
6.The proceedings are adjourned for further case management at 9.30 am on 22 June 2023.
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 Saito & Eichel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
In this matter directions were made on 15 July 2022 for its preparation for trial listed over 10 days to commence on 31 July 2023. Orders were made as to the filing by the wife of an Initiating Application and by the husband of a Response thereto, and consistent with the Federal Circuit and Family Court of Australia Central Practice Direction – Family Law Case Management, 28 November 2022 (“the Court’s practice directions”), sequential orders were made for the wife to file her trial affidavit and the affidavit evidence of each other witness she seeks to rely, the husband to then file his affidavit material in response, with the wife thereafter having a capacity to reply. Those trial directions have now been in force for more than eight months.
The parties, exercising the liberties that have been made available to them by way of the trial directions, have agreed to delay the filing of any Amended Initiating Application and Response thereto. This circumstance arises from delays in the preparation of a joint draft balance sheet, a process which is being facilitated by way of their appointment of a single forensic accountant, Mr B, pursuant to orders made by a judicial registrar on 6 April 2022. The wife makes complaint as to delay by the husband in providing documents and information to Mr B for the purposes of progressing the joint draft balance sheet. Those complaints have been the subject of some exchange and other directions that have been made in the course of case management to date.
A substantive issue in the proceedings is the fact, nature, and possible value of the parties’ interests in a United States entity, the C Trust. It is the wife’s contention that any such interests in the C Trust ought be included in the property of the parties available for adjustment pursuant to s 79 of the Family Law Act 1975 (Cth). It is the husband’s contention that the said interests in the trust (if any) are not property for the purposes of s 79 of the Act, nor a financial resource, available to the parties.
This substantive issue has been agitated between the parties over the course of the litigation and is the subject of a Notice to Admit served by the wife upon the husband pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The parties have agreed that the time for the husband to respond to the Notice to Admit shall be 42 days from today.
It is the wife’s position that a finding of equality as to contributions ought be made up to the date of trial and, in the event her contention as to the C Trust forming part of the property of the parties is accepted, that there be no adjustment to the contribution findings. The husband’s position, grounded from his position as to the C Trust not being property pursuant to the Act nor a financial resource, is that there ought be a property adjustment in his favour as to 67.5 per cent of the property of the parties. As is self-evident, there are significant legal and factual issues to be met at trial and potentially other matters such as revenue imposts or issues flowing from factual findings to be made as to these matters in the course of the trial.
The wife contends that the value of the parties’ interests in the C Trust comprises about 25 per cent of the total value of the property available for adjustment, which she contends is in the range of $200 million.
In those circumstances, the wife submits that as a matter of fairness and in the appropriate management of this litigation, the trial directions made as to the sequential filing of affidavits ought be varied such that each party would simultaneously file and serve their affidavit evidence no later than 60 days prior to the trial and that they would each have liberty to file and serve any affidavit in reply within 30 days thereafter. Implicitly she submitted that such approach would progress the matters identified in r 1.04 of the Rules.
For his part, the husband contends that he has flagged throughout the course of the proceedings his position in relation to the C Trust. He submits that the existing trial directions meet the objectives identified in the Court’s practice directions, and that he needs to be intimately appraised as to the factual matters that the wife will raise in her affidavit evidence in order to adequately respond to her contentions regarding the C Trust and other matters.
As advised to the legal representatives today by way of exchange, the management of these proceedings is really a matter for the parties in complying with the provisions of ss 67 and 68 of the Federal Circuit and Family Court of Australia Act2021 (Cth) and r 1.04 of the Rules. The parties have been placed on notice today that in the event the hearing of the matter cannot proceed over 10 days commencing 31 July 2023, it is highly likely that the matter will not achieve trial dates again until mid-2024 or thereafter. In those circumstances, notwithstanding that the wife will encounter additional cost and expense by way of maintenance of a sequential timetable for the filing of affidavits, her solace will rest with the potential to obtain orders as to costs arising from not only the notice to admit procedure but by way of findings made as to the factual contentions that she will proffer for the purposes of what is at least currently a substantive issue in the case at trial.
I accept there is merit in the wife’s position that she ought at least receive a response to the matters contained in the Notice to Admit as issued prior to the filing of her affidavit evidence. That said, she should be in a position to progress the preparation of that evidence while the husband prepares his response to the notice to admit.
In attempting to maintain some balance and proportionality in the circumstances, while progressing the central practice direction and the objects underscoring that practice direction, I do not propose to accede to the wife’s request as to the simultaneous filing of affidavit evidence nor to the husband’s request as to maintaining the current timetable. Rather, I propose to amend the time prescribed by way of Orders 7, 8, 9 as made 15 July 2022.
The parties are reminded as to their capacity to exercise the liberty to relist the proceedings on the terms identified in Order 14 made 15 July 2022 in the event of further issues arising as to the preparation of the matter for trial and are otherwise directed to the contents of Orders 25, 26 and 27 as made on 15 July 2022.
For all of the above reasons, I make the orders as set out at the forefront of this judgment.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 March 2023
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