Shamon & Shamon (No 6)
[2023] FedCFamC1F 13
Federal Circuit and Family Court of Australia
(DIVISION 1)
Shamon & Shamon (No 6) [2023] FedCFamC1F 13
File number(s): SYC 2375 of 2021 Judgment of: CHRISTIE J Date of judgment: 19 January 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – SEPARATE DECISION – Where the fourth respondent seeks determination of a discrete aspect of the property proceedings – Where there is consent of some parties. Legislation: Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth), rr 1.04, 1.06, 10.10, 10.11. Cases cited: Ghose v CX Reinsurance Company Ltd & Ors [2010] NSWSC 110. Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 17 January 2023 Place: Sydney Solicitor for the Applicant: Mr Jacobs, Lawbridge Lawyers and Consultants First Respondent: In person Solicitor for the Second Respondent: BB Lawyers Third Respondent: No appearance Counsel for the Fourth Respondent: Mr Schonell Solicitor for the Fourth Respondent: York Law Family Law Specialists Fifth Respondent: No appearance Solicitor for the Independent Children’s Lawyer: Ms Bleier, Steiner Legal ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHAMON
Applicant
AND: MR SHAMON
First Respondent
MR B SHAMON
Second Respondent
MS C SHAMON (and others named in the Schedule)
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
19 January 2023
THE COURT ORDERS THAT:
1.Pursuant to Rule 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the relief sought by Mr R Shamon in the substantive proceedings by way of the Points of Claim filed by him on 16 November 2021 be determined as a separate determination and by way of a separate decision.
2.The proceedings referrable to the Point of Claim filed by Mr R Shamon on 16 November 2021 be listed for final hearing before the Honourable Justice Curran of the Federal Circuit and Family Court of Australia (Division 1).
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 Shamon & Shamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application by Mr R Shamon, the fourth respondent, to bifurcate an aspect of the final hearing as it relates to financial matters. The fourth respondent is the husband’s father. He is legally represented.
The application is supported by the following parties:
(a)The husband, Mr Shamon; and
(b)The husband’s brother and second respondent, Mr B Shamon
The third and fifth respondents have not filed documents or appeared when this matter has been before the Court (although they have had notice of the proceedings).
The wife, Ms Shamon, expressed herself “agnostic” to the application.
The independent children’s lawyer (“the ICL”) supports the application to the extent that it may shorten the period for which Legal Aid NSW is required to fund her participation in the final hearing (which deals with both property and parenting issues).
The fourth respondent claims that, notwithstanding the fact that the property 1 M Street, Suburb P NSW is registered in the name of the husband, it is held by the husband on trust for him.
The fourth respondent also claims that, notwithstanding the fact that the property at H Street, Suburb J NSW is registered in the name of S Pty Ltd – a company whose sole director and shareholder was the husband (and since a date post-separation is now the husband’s sister, Ms C Shamon, the third respondent) – it is held by that company as to 50 per cent on trust for him.
The wife disputes these contentions.
THE LAW
The Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) (“the Rules”) provide for bifurcation of proceedings, expressed in the Rules as an application for a separate decision.
Rule 1.06 expressly identifies the determination of separate issues as a procedure that may be utilised by the Court to achieve the overarching purpose of just and efficient administration of proceedings: r 1.04 of the Rules.
Rule 10.10 provides:
10.10 Application for separate decision
(1) A party may apply for a decision on any issue, if the decision may:
(a) dispose of all or part of the proceeding; or
(b) make a trial unnecessary; or
(c) make a trial substantially shorter; or
(d) save substantial costs.
(2)An application under this rule must be made by filing an application in accordance with the approved form.
Rule 10.11 sets out a series of orders that can be made under r 10.10.
The question of whether to permit the hearing of a separate question is a discretionary case management decision. The discretion is to be exercised having regard to the matters set out in the Rules and any other relevant considerations.
In Ghose v CX Reinsurance Company Ltd & Ors [2010] NSWSC 110 the Court was concerned with consolidation, as opposed to bifurcation, under the Uniform Civil Procedure Rules 2005 (NSW) but the principles discussed by Austin J remain relevant. His Honour observed at [27]:
…the Court’s essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of the litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to Court. I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings.
Consideration
In circumstances where the application is not actively opposed the task of determining the application is simplified. I am satisfied that the interests of the fourth respondent should be determined by a separate decision for the following reasons:
(a)Counsel for the fourth respondent indicated that his client was likely to seek credit findings (presumably against the wife) in respect of the separate issue, as did the solicitor for the wife. Accordingly, it may not be appropriate for this issue to be heard and determined by the same judge who will hear the ultimate final property adjustment and parenting hearing as between the husband and wife;
(b)If this issue is dealt with as a separate decision, the ICL will not need to be present for those three to four days of hearing which the fourth respondent estimates will be required to determine this issue;
(c)None of the parties actively opposed this being dealt with as a separate issue;
(d)If the separate issue were to be resolved in a manner which found in favour of the fourth respondent, the question of the matrimonial asset pool as between the husband and wife would be further clarified which may assist in resolution; and
(e)The fourth respondent indicated in his affidavit material that he is elderly and in ill health having suffered a medical episode in 2005, was admitted to hospital in mid-2022 with a medical condition and continues to suffer which is impacted by his medical episode.
In all of those circumstances it is appropriate that the claim set out in the Points of Claim filed by the fourth respondent be separately determined.
In light of the submissions about credit findings, the matter will be heard and determined by the Honourable Justice Curran on dates and times to be allocated. The parties will be notified when that matter is before her Honour for case management.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 19 January 2023
SCHEDULE OF PARTIES
SYC 2375 of 2021 Respondents
Fourth Respondent:
MR R SHAMON
Fifth Respondent:
MS G SHAMON
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