Tifft & Tifft
[2024] FedCFamC1F 564
•23 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tifft & Tifft [2024] FedCFamC1F 564
File number: SYC 9218 of 2023 Judgment of: CAMPTON J Date of judgment: 23 August 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife commenced proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) in the Federal Circuit and Family Court of Australia (Division 2) – Where the matter was transferred to Division 1 and placed in the Major Complex Financial Proceedings list – Where the husband has filed an Amended Response to an Initiating Application, Application in a Proceeding, and a supporting affidavit seeking orders pursuant to Pt VII of the Act – Where there is no original jurisdiction in this Court to commence upon incorporating by amendment a parenting cause pursuant to s 50 of the Federal Circuit and Family Court of Australia Act 1975 (Cth) – Orders for the filing of each of the Amended Response to an Initiating Application, Application in a Proceeding, and affidavit in support to be voided. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60I, 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 50
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7
Cases cited: Gilford & Cavaco (2024) FLC 94-183; [2024] FedCFamC1A 55 Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 23 August 2024 Place: Sydney Counsel for the Applicant: Mr Richardson SC Solicitor for the Applicant: Mills Oakley Lawyers Solicitor for the Respondent: Lander & Rogers ORDERS
SYC 9218 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TIFFT
Applicant
AND: MR TIFFT
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.The husband’s filing of his Amended Response to an Initiating Application, his Application in a Proceeding, and his affidavit, each on 30 July 2024, is voided.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Tifft & Tifft has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
By way of an Initiating Application filed on 4 December 2023 Ms Tifft (“the wife”) commenced this proceeding in the Federal Circuit and Family Court of Australia (Division 2) seeking orders adjusting property between she and Mr Tifft (“the husband”) pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). By way of a Response to an Initiating Application filed in that forum on 9 February 2024, the husband sought different orders as to an adjustment of property.
The wife was born in 1973 and is currently 50 years old. The husband was born in 1973 and is currently 51 years old. The parties commenced cohabitation in 2002, married in 2004, and separated on a final basis in March 2023.
The wife has one child from a previous marriage, who is now an adult. There is one child of the marriage between the parties, X, who was born in 2011, currently 13 years old.
On 24 April 2024 the matter was listed for interim hearing. The parties entered comprehensive consent orders by way of partial property settlement, injunctive orders regulating their conduct in the management of their property interests, including for the disposal of a trading entity, B Pty Ltd and the sale of two commercial properties, as to the obtaining of single expert evidence as to valuation pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and directing them to attend a private mediation after the production of the single expert valuation evidence.
On 30 April 2024 the proceeding was transferred to Division 1 for inclusion in the Major Complex Financial Proceedings list. Orders were made as to the filing of financial questionnaires and the preparation of a joint collaborative working draft balance sheet. The matter was listed for case management on 9 July 2024 for the possible making of trial directions and allocation of trial dates.
On 9 July 2024 the proceeding was administratively adjourned to enable the parties to continue to implement the orders made 24 April 2024 as to the sale of property interests and to complete the process of obtaining ch 7 single expert valuation evidence.
A draft joint collaborative draft balance sheet was filed on 15 August. The parties are yet to obtain the ch 7 valuation evidence as to their interests in the Tifft Family Trust (“the Trust”). It appears the parties agree that the Trust forms part of their property amenable to adjustment for the purposes of a final s 79 order. The Trust has assets that includes corporations and unit trust interests together holding the trading enterprise that is currently to be sold by way of the 24 April 2024 orders. The Trust is engaged in negotiations with a potential purchaser of the trading enterprise subject to an extension of an exclusivity period. The ch 7 single expert valuations are expected to be available by the end of September 2024.
The parties agree that the value of their property is in the range of $25 – $30 million. They have arranged for a private mediation with Ms C scheduled in 2024.
Against that background the husband filed on 30 July 2024 an Amended Response to an Initiating Application, an Application in a Proceeding, and an affidavit in support thereof, seeking final and interlocutory orders pursuant to Pt VII of the Act to regulate the parenting of the child, X. The parties engaged in the relevant pre-action procedures in anticipation of litigation as to parenting in late 2023 and obtained a s 60I certificate from a Family Dispute Resolution Practitioner.
Notwithstanding the considered approach of the parties to matters touching upon the parenting of their daughter, the appellate division of this Court has determined that there is no jurisdiction for them to amend a s 79 cause in Division 1 to incorporate and commence a parenting cause. By way of the judgment delivered by the appellate division in Gilford & Cavaco (2024) FLC 94-183 at [51]–[53], any parenting application between these parties would need to be separately commenced in Division 2 (s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”)). The FCFCOA Act has mandated a single point of entry for family law proceedings and bestowed upon Division 2 Judges control of the allocation of proceedings between this Court and Division 2.
The husband was invited to make submissions today as to why, in the above circumstances, the filing of his Amended Response, Application in a Proceeding and affidavit seeking to commence a parenting cause in this forum should not each be voided. He conceded that consent, if it be forthcoming from the wife, cannot create jurisdiction. He could not engage with the correctness, or otherwise, of the determination on this subject matter as made by the appellate division.
In the circumstances, notwithstanding the intentions of the parties to progress their parenting dispute, the purported filing of the husband’s Amended Response to an Initiating Application, his Application in a Proceeding, and his affidavit in support thereof on 30 July 2024 will be voided. This will not foreclose the husband from commencing relief as he is advised pursuant to Pt VII of the Act in Division 2. It will be matter for that Court, having regard to the structure of the FCFCOA Act, as to whether this Court will be invited to determine the whole of the dispute between these parties arising from their marriage and its breakdown.
For all of these reasons, orders are made as set out herein. Other orders will be made listing the s 79 dispute for trial.
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: 23 August 2024
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