SWEENEY & SEGOVIA

[2019] FamCA 1023

FAMILY COURT OF AUSTRALIA

SWEENEY & SEGOVIA [2019] FamCA 1023

FAMILY LAW – PROPERTY – Application for leave to amend orders sought during the proceedings – leave granted.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Ltd & ANU (2009) 239 CLR 175

APPLICANT: Mr Sweeney

RESPONDENT: Ms Segovia

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 6482 of 2016

DATE DELIVERED: 18 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 18 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black

SOLICITOR FOR THE APPLICANT: MBA Lawyers

COUNSEL FOR THE RESPONDENT: Ms Bertone

SOLICITOR FOR THE RESPONDENT: Whitehead Payne

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Sweeney & Segovia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6482 of 2016

Mr Sweeney

Applicant

And

Ms Segovia

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I have what is, in essence, an application made on behalf of Ms Segovia to amend the orders sought, as previously particularised in the Response filed on her behalf, to seek instead orders as particularised in the document provided to me this morning by Ms Bertone who appears on her behalf. 

2. That application is opposed by Mr Sweeney for the reasons enunciated by Ms Black who appears on his behalf. 

3. This Court is, of course, not a court of formal pleadings.  In litigation here, the parties are required to file an application or a response document in which they set out the orders that each seeks.  The purpose of that, in part at least, is to inform that which is in contest between them, to identify that which is not the subject of contest, and so that each party can approach the litigation knowing what it is that the other party seeks by way of relief.

4. All of these things occur, though, in the context of the obligation cast upon Courts exercising jurisdiction under the Family Law Act 1975 (Cth) in property settlement proceedings to consider whether it is just and equitable to make orders and, if such determination is made, to determine those orders which are just and equitable in the circumstances of each particular case. That in one sense then, it seems to me, distinguishes the type of proceedings that are “property settlement” or “property adjustment” proceedings under the Family Law Act 1975 (Cth) from those types of proceedings which otherwise be regarded as falling within the subset of “civil proceedings” in other jurisdictions.

5. Here, as I have already adverted to, Ms Bertone, on behalf of Ms Segovia, seeks to amend the orders sought such that, if made they would result in the sale of property owned solely by Mr Sweeney in the United States of America and the payment out to Ms Segovia of funds realised from that sale. 

6. It is particularly relevant to note that the proposed orders sought to be advanced on behalf of Ms Segovia do not seek the sale of land in the United States in which, on Mr Sweeney’s own evidence, he has a 50 per cent interest.  Therefore, the proposed orders do not seek to effect the rights of the co‑owner of the land in the United States of America.

7. As already noted, Ms Black, on behalf of Mr Sweeney, opposes Ms Segovia being able to move the Court to consider the orders contained in the document provided by Ms Bertone this morning.  She does so given the stage at which the trial has reached.  That stage is that Mr Sweeney has been cross-examined and excused but Ms Segovia is yet to be cross-examined at all. 

8. Reference to that which has preceded this morning makes clear that, after the conclusion of Mr Sweeney’s cross‑examination at the end of the first day of the hearing, Ms Bertone adverted to the possibility of seeking to amend the orders sought on behalf of Ms Segovia to attach or call on, or to cause to be dealt with, at least some of the property owned by Mr Sweeney in the United States of America.  The finalised Minute following that foreshadowed course of action is that which was provided this morning.

9. As I understand the submissions made by Ms Black on behalf of Mr Sweeney, his opposition to me permitting Ms Segovia to advance the orders set out in the Minute as being orders which the Court might ultimately determine to be just and equitable, rests upon the assertion, in essence, that it is unfair to him to permit her to do so: that is, to seek now orders different to those which are contained in her Case Outline filed on her behalf on 13 December 2019.

10. It was submitted generally that Mr Sweeney would be prejudiced by such a course; but I do not regard the submissions to contain any particularisation of the manner in which it is said he would be prejudiced.

11. Until yesterday morning, the orders that Mr Sweeney sought, as set out in the Case Outline filed on his behalf on 13 December 2019, included that he retain property which included: “all assets owned by the husband in the United States of America.”[1]    

    [1] Husband’s Case Outline filed 13 December 2019 at paragraph 21(d).

12. Further, a Balance Sheet filed in his case on 22 November 2019 asserted certain values for the townhouse owned by him in the United States of America and land in the United States of America in which he said he has a 50 per cent interest.  The Balance Sheet reflects that which is contained in Mr Sweeney’s affidavit of evidence-in-chief filed on 4 November 2019. 

13. Reference to the Balance Sheet informs that the parties proffered different values for the assets held by Mr Sweeney in the United States of America.  Insofar as the townhouse is concerned, he advocated that it be valued, for the purpose of the proceedings, at $122,000.00(AUD), whilst Ms Segovia advocated that it be valued for the purpose of these proceedings $318,541.00(AUD).  Insofar as Mr Sweeney’s 50 per cent interest in land in the United States is concerned, he advocated that it be attributed a value of $90,000.00(AUD) for the purpose of these proceedings, whilst Ms Segovia advocated that it be taken as having a value of $340,750.00(AUD) for the purpose of this proceeding. 

14. As I indicated at the start of the trial, there is no expert evidence to support either assertion as to the value of this property.  I also note, though, that no objection has been taken by Counsel who appeared on behalf of either party to my receiving their clients’ respective evidence as to value. 

15. The circumstances were such that, as reference to the transcript of the proceedings would reveal, I raised at the very outset of this hearing the prospect that, given the state of the evidence, there might be no other option but for the Court to make an order for the sale of that property. 

16. Obviously, certain issues relating to the obligation to accord procedural fairness arise in relation to the land in the United States of America because Mr Sweeney’s co‑owner is not a party to the proceedings, and has, I conclude, no notice that there would be any order sought in relation to it. 

17. That, however, seems to me not to make a difference, because none of the proposed orders sought to be advanced on behalf of Ms Segovia seek to effect the co-owner’s interests: no orders are sought for the disposition of Mr Sweeney’s 50 per cent interest in the land.  All that is sought, if permission is given to Ms Segovia to seek that such orders be made, is that the value of that property be taken into account for the purpose of determining that amount of money Ms Segovia should be paid from the nett sale proceeds of the townhouse owned solely by Mr Sweeney.

18. Any thought that Mr Sweeney did not appreciate that the property he owns in the United States of America would be considered in the proceedings is further ameliorated by the fact that both the townhouse and his 50 per cent interest in the land in the United States were specifically referred to him in his trial affidavit filed 4 November 2019 at paragraph 119 as forming part of “the property pool available for distribution in this matter.”  It is also clear from reference to that aspect of his affidavit that his evidence is that he is the owner of the townhouse property and that he owns and has a 50 per cent interest in the land. 

19. That a party might seek different orders to those sought as particularised in either an application or response document is certainly not unique in proceedings.  There is always the prospect that evidence may emerge that causes a party’s legal advisers to seek to amend to seek orders on behalf of a client that differed from those sought at the commencement of the proceedings.

20. The question here really then is whether this should be permitted at this stage of the proceedings.  I think it should be. 

21. Nothing in Aon Risk Services Australia Ltd & ANU,[2] a case in which there was a successful appeal against a decision in relation to an application to amend a Statement of Claim, persuades me otherwise. 

    [2] (2009) 239 CLR 175.

22. I have arrived at this conclusion because, as noted, there was never an issue between the parties that Mr Sweeney’s property in the United States of America was properly to be included as property of the parties in and for these proceedings.  Secondly, Mr Sweeney positively sought an order that he retain that property.  Whilst, until yesterday, Ms Segovia’s case was accepting of that proposition, that is no longer the situation; and I infer that that position has been reached because it has been concluded on her behalf that, subject to the opportunity to make orders that deal with the property owned solely by Mr Sweeney in the United States of America, the Court would not be in a position to make orders which are just and equitable in the circumstances of this case.

23. Thirdly, unlike other forms of civil litigation, the Court here is required, once it has determined it to be just and equitable to make orders to adjust the interests of parties in property, to determine and make those orders which are just and equitable.  It is not uncommon that orders asserted, including those asserted jointly by parties, are not accepted by a Court in the exercise of discretion as being just and equitable in any particular circumstance.  It is clear, therefore, that the Court is not bound by the parties’ proposals in considering and arriving at a determination of those orders which are just and equitable – provided, of course, that the obligation to afford parties procedural fairness is discharged.

24. The circumstances of this case, where Mr Sweeney’s own evidence about his access to funds drawn against the former matrimonial home prior to its sale, the consequences of his actions in that regard vis-à-vis the quantum of property now available in Australia to be considered and his use of those funds, are such that it could not sensibly be suggested that it could not and would not have been reasonably foreseeable that, at some stage in the proceedings, Ms Segovia might seek to move the Court to make orders that deal, in some way, with  the property owned by him in the United States of America – and, particularly, the property owned by him solely – so as to ensure that orders which are just and equitable can be made.

25. Whether the orders now sought on behalf of Ms Segovia are ultimately determined to be orders which are just and equitable is a completely different issue.  The only matter that I am deciding at present, and that I have decided in favour of the permitting of Ms Segovia to be heard, is that she be able to be heard to seek that orders be made in those terms. 

26. Obviously, the trial is not at a position at which I am considering whether the orders which I intend to permit her to be able to seek are, in fact, orders which are just and equitable in all the circumstances of the case.

27. Of course, therefore, it follows that Mr Sweeney will be afforded the opportunity, through submission at the appropriate time in the hearing, to be heard about whether such proposed orders are just and equitable or not; whether any aspect of them is just and equitable or not; or whether those orders which are just and equitable in the circumstances of this case are those orders which, at present, he advocates for – being those orders which Ms Segovia previously sought as outlined in her Case Outline document filed on 13 December 2019.

28. Ms Black, on behalf of Mr Sweeney, also submitted that if, contrary to her client’s position, Ms Segovia was to be permitted to seek orders in the terms now proffered, Mr Sweeney should be afforded an opportunity to give additional evidence. 

29. I do not consider that I am in a position to determine, in discharging my overriding obligation to ensure fairness to both of the parties to the proceeding, whether to accede to such application or not, without the benefit of an appreciation of the evidence which Mr Sweeney would seek to give in the circumstances which now exist:  namely, circumstances in which Ms Segovia is to be permitted to be heard to seek orders as contained in the Minute provided by Ms Bertone this morning.

30. Given that conclusion, I intend then to stand the matter over to 1.15 pm so as to afford to Ms Black the opportunity to be able to particularise the evidence she anticipates that Mr Sweeney would give if permitted to give further evidence at this stage of the proceedings.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 December 2019.

Associate:

Date:  18 December 2019