Simone & Astoria
[2023] FedCFamC2F 766
•23 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Simone & Astoria [2023] FedCFamC2F 766
File number(s): PAC 5244 of 2020 Judgment of: JUDGE STREET Date of judgment: 23 June 2023 Catchwords: FAMILY LAW – Property – where there are concurrent related proceedings – application for transfer of proceedings to Division 1 – application for transfer declined Legislation: Family Law Act 1975 (Cth) s 45
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 9.05
Division: Division 2 Family Law Number of paragraphs: 5 Date of hearing: 23 June 2023 Place: Sydney Solicitor for Applicant: Hills Family Law Centre Solicitor for First Respondent: Sim & Co Legal Services Solicitor for Second Respondent: Karen L Haga & Associates ORDERS
PAC 5244 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SIMONE
Applicant
AND: MS ASTORIA
First Respondent
MR ASTORIA
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
23 JUNE 2023
THE COURT ORDERS THAT:
1.The Court declines to transfer the proceedings to Division 1.
2.The applicant file and serve their consolidated trial affidavit, and any other affidavit evidence on which they wish to rely, on or before 28 July 2023.
3.The respondents file and serve their consolidated trial affidavit and any other affidavit evidence in which they wish to rely on or before 25 August 2023.
4.The parties file and serve an agreed balance sheet, identifying items in dispute, on or before 15 September 2023.
5.The applicant file and serve a case outline on or before 29 September 2023.
6.The respondents file and serve a case outline on or before 13 October 2023.
7.Leave is granted to the parties to issue more than five (5) subpoenas.
8.Leave is granted to the parties to have photocopy access to the documents produced under subpoena, subject to any proper notice of objection.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
On 1 October 2020 property proceedings involving three parties were commenced and on 6 April 2023 were fixed for a five day hearing date in November 2023. The Court made similar directions in related property proceedings PAC 6450/2022 involving 2 of the same parties to be heard at the same time. The Court directed the parties to file a timetable within fourteen days. That was not done. On 16 June 2023 the Court relisted the matter for directions to fix a trial timetable.
The Court received by email the morning of 23 June 2023 a proposed order for the transfer of the proceedings pursuant to s 45(2) of the Family Law Act 1975 (Cth) to Division 1 by the first respondent. No proper application in proceedings for transfer or affidavit supporting such an application has been filed.
The two sets of proceedings have been fixed for a five day final hearing since April 2023. The inconvenience that would occur and be occasioned by seeking to vacate the hearing date and to transfer the matter when the property pool is alleged by Mr B to only in the order of $1,600,000 or $1,900,000 is obvious. It is apparently substantially the same property pool in issue in the overlapping proceedings. Mr B suggested there were issues of complexity and referred to there being issue about the value of the property pool. Possible differing valuations evidence does not reflect an issue of complexity. Overlapping property issues in two proceedings to be heard concurrently do not reflect an issue of complexity. It is not apparent to the Court there is any complex issue that could warrant the transfer of these proceedings, already fixed for hearing, to Division 1 which is a separate and a superior Court.
The Court has taken into account the principles that apply in relation to s 43 of the Family Law Act 1975 (Cth) and the principles in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). It would be contrary to those principles to, at this stage of the proceedings, engage in the process of seeking permission through the protocol that applies to have the proceedings transferred to Division 1. The Court is not satisfied it is in the interests of justice to transfer the proceedings given the fixed hearing date and a transfer would not promote the convenience of the parties. There is no proper reason why the proceedings should be so transferred. The Court has also taken into account the relevant provision under r 9.05 under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). There was no timely application for transfer as required under the rules and there is no matter in r 9.05(5) that weighs in favour of transfer.
There is no issue identified in these proceedings or the two sets of proceedings that warrants such a transfer. A transfer would not be in the interests of the administration of justice given the five day hearing date that has been fixed. It is for these reasons the Court refused to make any transfer order and the Court has made procedural trial orders in both matters which are substantially the same given the failure of the parties to agree upon a trial timetable.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 23 June 2023
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