Self & Bachman (No 5)
[2023] FedCFamC1F 473
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Self & Bachman (No 5) [2023] FedCFamC1F 473
File number(s): SYC 2566 of 2016 Judgment of: ALTOBELLI J Date of judgment: 7 June 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter was remitted after appeal – Where the remitted hearing is limited in scope – Where the parties provided written submissions regarding the scope of the remitted hearing and trial directions – The remitted hearing is only to consider factors under s 90SF(3) of the Family Law Act 1975 (Cth) – Trial directions made. Legislation: Family Law Act 1975 (Cth) ss 4AB, 90SF, 90SM, 102NA
Federal Circuit and Family Court of Australia Act 2021 s 36(1)(c)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Bachman & Self [2023] FedCFamC1A 50 Division: Division 1 First Instance Number of paragraphs: 16 Date of last submission/s: 23 May 2023 Date of hearing: Heard on the papers Place: Sydney Solicitor for the Applicant: Adam Jones Solicitor The Respondent: Litigant in person ORDERS
SYC 2566 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SELF
Applicant
AND: MR BACHMAN
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
7 June 2023
THE COURT ORDERS THAT:
1.Within 7 days of the making of these orders, the Applicant Wife (“the Wife”) and Respondent Husband (“the Husband”) each file a sworn Financial Statement and thereafter file a further updated financial statement should their financial circumstances change.
2.Within 14 days of the making of these orders, the Husband and the Wife shall each exchange a single and consolidated request for financial disclosure that shall include all requests for disclosure sought by them in the re-hearing of these proceedings.
3.Within 21 days of each receiving a request for disclosure, the Husband and the Wife shall each provide disclosure as requested and indicate what, if any, disclosure sought is not being provided.
4.By 4.00 pm on 15 July 2023, each of the Husband and the Wife shall file and serve a single consolidated affidavit from each witness they seek to rely at re-hearing with such affidavit to include an explanation as to any disclosure sought by the other party that has not been provided.
5.Unless the parties otherwise agree, within 7 days of the making of these orders, the Husband and the Wife shall provide a joint letter of instruction to QQ Valuers who will be appointed as single expert to value the properties with the cost being borne equally:
(a)J Street, Suburb D;
(b)G Street, Suburb H; and
(c)U Street, Suburb D.
6.In the event that the Husband and the Wife cannot agree on the terms of the joint letter of instruction, the parties have leave to approach chambers and each provide a proposed letter of instruction, which shall be settled by an officer of the Court.
7.The joint letter of instruction to QQ Valuers shall state that the valuation is to be released no later than 7 days prior to the commencement of the re-hearing.
8.Each party file a case outline document and a joint balance sheet no less than 7 days prior to the commencement of the re-hearing.
9.By no later than 7 days prior to the commencement of the re-hearing, the parties are to have served objections to evidence on each other.
10.By no later than 4 days prior to the commencement of the re-hearing, the parties shall have conferred, settled and forwarded to my Associate a document in electronic form setting out:
(a)Those parts of the evidence which shall not be read; and
(b)Those parts of the evidence to which an objection is maintained and the reason for that objection.
S102NA Order
11.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in these proceedings on or after 11 September 2019, neither party may cross-examine the other party personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the other party.
12.Within seven days of the date of these orders, the Respondent husband complete the "Scheme Application Form" and provide to Legal Aid NSW ([email protected]) for the allocation of a legal practitioner.
THE COURT NOTES THAT:
A.Pursuant to s 102NA(1), there is an allegation of family violence between the parties, and the Court has made an order that the requirements of subsection (2) are to apply to the cross-examination.
B.The parties have each been advised by the Court that:
(a)pursuant to those requirements, neither party may cross-examine the other party personally;
(b)pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
C.If the Respondent husband fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.
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 Self & Bachman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
INTRODUCTION
This matter comes before me in my capacity as the Case Management Judge for the Sydney and Parramatta Registries in Division 1. There is a dispute between the parties about the scope of the matters that have been remitted for hearing and the trial directions that should be made. The wife is the applicant in this matter (“the wife”) and the husband is the respondent (“the husband”).
BACKGROUND
The matter comes back to this Court having been remitted by the Full Court on 21 April 2023. The Full Court allowed the appeal lodged by the husband in part, in that Order 19 that was made on 28 October 2022 was set aside, and this is reflected in Order 1 made by the Full Court on 21 April 2023.
Order 19 appears under the heading “Property” and it states:
19. Within 30 days, the father is to pay to the mother the amount of $145,117.
Going back to the Full Court orders, Order 2 made 21 April 2023 remits to a judge of Division 1 the “…issue of what sum, if any, either party should be ordered to pay the other”. Only Ground 4 of the appeal succeeded. The Full Court describes this as an error in considering the matters referred to in s 90SM(4) of the Family Law Act 1975 (Cth) (“the Act”). A factual error was found about the finding that the wife had been out of the workforce since 2011. The Full Court found that this error flowed into the one percent adjustment that was made as part of the trial judge’s determination and this is found at [137]–[139] and [174] of the Full Court’s judgment (Bachman & Self [2023] FedCFamC1A 50). But, as the Full Court said at [177], no other error was found.
At [178], the Full Court notes that the only sensible course was to remit the matter, but restrict this to a determination of what sum, if any, either party should be ordered to pay the other in lieu of Order 19, which, of course, required the husband to pay to the wife the sum that I have referred to.
THE EVIDENCE
On 16 May 2023 both parties were ordered to exchange and provide written submissions regarding the scope of the remitted hearing and proposed trial directions.
The wife’s proposed trial directions were received on 23 May 2023 and her written submissions were received on 30 May 2023. In summary, the wife submitted that the scope of the remitted hearing must be limited to an assessment of factors pursuant to s 90SF of the Act.
The husband’s written submissions and trial directions were both received on 23 May 2023. The husband submits that the remitted hearing should not be limited in scope in the manner contended by the wife and that the judge rehearing the matter should determine the matter based on all previous and new evidence and facts, and consider all assets.
DISCUSSION
Such limited remitter was clearly authorised by s 36(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”). At [179] of the Full Court’s decision, the Full Court confirms the limited remission and notes that the trial judge’s undisturbed findings are to form the foundation of the rehearing, subject, of course, to evidence led and findings made in the fresh hearing. But there is nothing that is said at [178] or [180] of the Full Court’s reasons that broadens the scope of the remitter. It is not an invitation to engage on a wholesale reconsideration of assessment of contribution, but only to reassess s 90SF(3) factors in light of the following matters:
(1)The existing findings of contribution;
(2)New findings about values; and
(3)New findings about s 90SF(3) factors, but to the extent permitted by the remitter.
It would defeat the statutory purpose of s 36 of the FCFCOA Act to hold otherwise. Indeed, it would arguably be an abuse of process. Thus, to the extent that the husband’s submissions contend to the contrary, that is, that the remitter enables him to revisit all issues in this case and not just the remitted issue, he is wrong.
The focus now turns to the trial directions. The case is listed for hearing before Riethmuller J on 1 August 2023 at the Parramatta Registry. His Honour is presently overseas. I propose to make basic trial directions, but reserve to his Honour the right to vary these in any way on his return at the end of this month.
Both the wife and the husband submitted proposed Minutes of Order. Some of the differences in these documents are of limited compass. The need for disclosure and a statement of financial circumstances is common ground, as is the need to update the valuations. The differences between the proposed orders in this regard is negligible and the trial directions that I will make will reflect the Court’s choice based on the intended purposes of the Court’s Central Practice Direction and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. All issues in relation to tender bundles and a Court book will be left to Riethmuller J. Directions like these are idiosyncratic, so I prefer to leave these directions to his Honour.
The husband proposes filing updating affidavits. The wife proposes the filing of a single consolidated affidavit. The latter is far more practicable for the trial judge. In drafting these affidavits the parties should be cognisant of the limited nature of the remittal. Any irrelevant material that is included in the affidavits but which is struck out at some point during the remitted proceedings may have costs consequences. The husband proposed certain notations in his Minute, but the Court sees no benefit in them.
There is an issue between the parties about whether or not an order under s 102NA of the Act should be made. The wife certainly seeks such an order and the husband says there is no basis for it. Nonetheless, on the last occasion the matter was before me the husband advised that he, nonetheless, proposed to brief counsel for the purposes of cross-examining the wife. There is inherent wisdom in doing so. The Court believes that it is entitled in the circumstances, to take this as a tacit concession that s 102NA of the Act has some application in this matter. But even if that were not the case and noting the contentions made by each party in submissions this morning about allegations of violence, as broadly defined in s 4AB of the Act, made by the wife, denied by the husband and not necessarily the subject of specific findings by his Honour the trial Judge, the Court prefers to look at the matter as at this point in time.
The definition of “family violence” in s 4AB of the Act is a broad and inclusive one, particularly as regards the scope of what is colloquially known as coercive and controlling violence. The scope of this is expanding and is contextual. In other words, it just depends on the circumstances of the case. In certain circumstances it is litigation behaviour that might come within the definition of coercive and controlling violence. Certainly, the wife’s contention expressed through her solicitor’s instructions and submissions is that she has experienced the husband’s behaviour, broadly speaking, as coercive and controlling. As far as this Court is concerned, this is sufficient for the purposes of s 102NA(2)(b) of the Act. The Court is satisfied that s 102NA(c)(iv) of the Act applies in this case and that, in the circumstances, it is appropriate to make an order that the requirements of s 102NA of the Act apply in this case. Given that the husband will suffer no disadvantage by the making of such an order, given that he intends to brief counsel, there is no prejudice to him in making the order in question.
Turning to the trial directions, I intend to make orders to the following effect. This document will probably be sent out to everyone in the next hour. Within seven days of making these orders the husband and wife each file a sworn Financial Statement and thereafter file a further updated Financial Statement should their financial circumstances change. Secondly, within 14 days the parties will each exchange a single and consolidated request for financial disclosure and then within 21 days of receiving that request they shall each provide disclosure as requested. A single consolidated affidavit is to be filed by each party and their witnesses and that is to happen no later than 15 July 2023. Unless the parties otherwise agree, within seven days of these orders they must provide a joint letter of instruction to QQ Valuers and the cost of such valuation is to be borne equally. In practical terms if there is a difficulty with the joint letter of instruction, the parties have leave to approach chambers so that can be determined, probably by myself. The letter of instruction to QQ Valuers must require that they provide valuations no later than seven days prior to the hearing. That reflects my knowledge and experience of experts in the provision of reports. I have made directions about a case outline document and about a joint balance sheet. I have made directions about objections. I have made a s 102NA order. This document will be provided to you probably within the next hour.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 7 June 2023
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