Todaro & Todaro (No 2)
[2025] FedCFamC1F 384
•4 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Todaro & Todaro (No 2) [2025] FedCFamC1F 384
File number(s): SYC 7612 of 2021 Judgment of: CAMPTON J Date of judgment: 4 June 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where both parties have a history of non-compliance with orders and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where both parties allege disclosure failures of the other – Where the husband contends prejudice in the preparation of the matter for trial occasioned by the delay in the single expert evidence pursuant to ch 7 of the Family Law Act 1975 (Cth) being provided – Where the husband seeks adjournment of the trial or that the trial dates be vacated – Where the husband’s mother proposes to file an Application in a Proceeding for the husband’s mother to intervene in the proceedings – Case management principles considered. Legislation: Family Law Act 1975 (Cth) ch 7, ss 78, 79, 95, 96
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 10.27
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 4 June 2025 Place: Sydney Counsel for the Applicant: Mr Dura SC Solicitor for the Applicant: Willis & Bowring Solicitors Counsel for the Respondent: Ms Dellidis SC Solicitor for the Respondent: Gibson Howlin Lawyers Solicitor for the Proposed Intervener: Ms Stock, Solari & Stock Lawyers ORDERS
SYC 7612 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TODARO
Applicant
AND: MR TODARO
Respondent
MS B TODARO
Proposed Intervener
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
4 JUNE 2025
THE COURT ORDERS THAT:
1.The oral application of the husband to adjourn the trial listed before Altobelli J to commence on 16 June 2025 is refused and dismissed.
2.The time for the wife to file her trial affidavit material pursuant to the orders made on 29 November 2024 are extended to 30 May 2025.
3.The time for the husband to file his trial affidavit material pursuant to the orders made on 29 November 2024 are extended until close of business today 4 June 2025.
4.Order 6 made on 14 May 2025 as to the filing of the joint balance sheet on or before 12 June 2025 is discharged.
5.Order 10 made on 29 November 2025 is varied so that the wife provide the husband with the updated version of the draft joint collaborative balance sheet by 6 June 2025.
6.Order 11 made on 29 November 2025 is varied so that the husband is to make additions to that draft joint collaborative balance sheet on or before 11 June 2025.
7.Order 14 made on 12 November 2025 is varied so that the wife file and serve the final version of the draft joint collaborative balance sheet on or before 12.00 pm on 13 June 2025.
8.Each of the husband and the wife file their outline of case pursuant to Order 22 made on 29 November 2024 on or before 12.00 pm on 13 June 2025 and that such outline of case document additionally includes a final minute of order sought by each party at trial.
9.In the event either party fails or neglects to comply with these orders the substantive relief by way of application or response of the party in default is struck out and the other party who is not in default will have leave to have their substantive relief determined on an undefended basis.
10.The listing of the proceeding for trial before Justice Altobelli scheduled to commence on 16 June 2025 is confirmed.
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 a pseudonym Todaro & Todaro has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J
These are proceedings for the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), commenced nearly five years ago by Ms Todaro (“the wife”) filing an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) on 19 October 2021. Mr Todaro (“the husband”), by way of a Response to an Initiating Application filed on 21 January 2022, sought different orders adjusting property between he and the wife.
The husband and the wife married in 2000 and separated in 2019.
The proceedings have had a chequered and chronic history throughout their conduct in Division 2, including repeated contentions as to disclosure failures made by the parties against each other. Orders were made on 10 March 2022, more than three years ago, as to the preparation of single expert evidence pursuant to ch 7 of the Act as to the valuation of real properties.
The matter has been listed on no less than 33 occasions. The court file records multiple occasions upon which challenges have been encountered by the parties in progressing the matter for trial in Division 2.
On 9 October 2024, the proceeding was consensually transferred to this Court upon the basis that there was some complexity in the financial arrangements between the parties, being whether two discretionary trusts were the property of the husband amenable for adjustment pursuant to s 79 of the Act because it was said that the hearing of the matter would take in excess of four days.
The matter was listed before me on 29 November 2024. Extensive trial directions were made at that time including requiring the parties to:
(a)file their primary affidavit trial material on or before 18 April 2025;
(b)prepare a draft, joint, collaborative, working balance sheet to be filed on or before 6 June 2025; and
(c)file and serve documents as to contended issues for trial, factual findings sought, a joint chronology as to non-controversial facts, and case outline documents.
The proceedings were allocated for trial before Altobelli J over five days commencing on 16 June 2025.
On 5 December 2024 orders were made directing the matter to be listed before Altobelli J on 16 May 2025 for the purposes of ensuring that the parties had complied with trial directions and that the matter was ready for hearing.
On 12 December 2025, the trial dates initially listed to commence on 30 June 2025 were rescheduled to 16 June 2025. The directions made on 29 November 2024 were also confirmed.
On the joint application of the parties to the chambers of Altobelli J on 14 May 2025, orders were made extending the time for compliance with the filing of trial material to 26 May 2025 and as to the filing of the joint balance sheet by no later than 12 June 2025. Implicitly, the parties submitted to Altobelli J at that time that the matter would be prepared for trial within those extended timeframes.
Notwithstanding that implicit submission, correspondence was forwarded to the chambers of Altobelli J on 30 May 2025 recording that neither party had, by that time, filed their trial material; that the 21 real properties to be the subject of updated valuations by the ch 7 single real property expert, Mr D, had been delayed; and that the parties had only received 12 of the 21 valuations, with nine remaining outstanding. The letter further identified that the husband’s shadow expert required time to review the outstanding updated valuations, ask clarifying questions, and for the husband to then reconsider his position.
The matter was re-listed before me today for case management in circumstances where Altobelli J is outside the jurisdiction. For the purposes of the re-listing, the following notation was directed to the parties:
A. At the listing on 4 June 2025 the parties will be requested to make submissions as to why the Court ought not on its own motion dismiss both the substantive Amended Initiating Application and the substantive Response to an Initiating Application pursuant to r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Ms Stock, solicitor, has appeared today on behalf of the husband’s mother, Ms B Todaro, foreshadowing a proposal to file an Application in a Proceeding to seek to intervene in the proceedings. That Application in a Proceeding has not been filed. The substantive relief prosecuted by the wife, as contained in her Amended Initiating Application filed on 28 November 2024, seeks declaratory relief that the two discretionary trust structures are the property of the husband amenable to adjustment pursuant to s 79 of the Act, but does not seek any orders adjusting those trust interests. The extent of the wife’s relief is that the husband, in proceedings as between he and the wife, be declared the beneficial owner of each trust, I assume pursuant to s 78 of the Act. It is against that background that, should she file an application to intervene in the proceedings, the husband’s mother may encounter challenges in achieving the double threshold mandated by r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Additionally, the failure of the husband’s mother to seek to intervene in the proceedings over the past four and a half years may generate other considerations, should the application be filed and prosecuted.
The wife indicates today that she filed her trial material on 30 May 2025. The husband filed his financial statement and an affidavit from his accountant yesterday, on 3 June 2025. He indicates that he will file his trial affidavit today.
The wife seeks to maintain the hearing dates and resists any application that her substantive relief be struck out on the Court’s own motion pursuant to r 10.27 of the Rules. The wife identifies that the parties undertook a third mediation event with Mr E of counsel on 2 May 2025 and assures the Court that the matter can be prepared for hearing.
The husband opposes the striking out of his substantive relief by way of r 10.27 of the Rules. In the event he is successful in opposing that determination, he makes an oral application today to adjourn the trial or vacate the trial dates. The husband contends that he has been subjected to a fundamental prejudice in the preparation of the matter for trial occasioned by the delay in the ch 7 single expert providing his outstanding opinions as to the updated values of relevant real properties.
It seems uncontroversial that the ch 7 single expert provided the identified nine outstanding updated opinions to the parties, either yesterday or today, and that one opinion remains outstanding.
It is the husband’s case that he is likely to take issue with six of the opinions of the ch 7 single expert, or potentially more. He identifies that the disputes going to the ch 7 single expert’s updated opinion as to the value of a number of properties are substantial when considered against the value of the pool of property available for adjustment. The husband further identifies that his adversarial real property valuation expert, Mr F, is currently encountering some health challenges that will also hamper his instructions as to the preparation of the matter for trial.
Rule 10.27 of the Rules provides as follows:
10.27 Orders on default
(1) If a party is in default, the court may do any of the following:
(a) order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party;
(b) set aside a step taken or an order made;
(c) order that a step in the proceeding be taken within the time limited in the order;
(d) order costs;
(e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f) make any order that is to take effect if the party does not take a step ordered by the court in the proceeding in the time limited in the order;
(g) proceed on the non‑defaulting party’s evidence together with:
(i) if considered appropriate by the court—such evidence as the defaulting party has filed; and
(ii) such evidence as tendered during cross‑examination by the defaulting party; and
(iii) submissions by either party limited to the matters that are the subject of evidence;
(h) in exceptional circumstances—proceed on the non‑defaulting party’s evidence without hearing from the defaulting party.
(2) The court may make an order of the kind referred to in subrule (1), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
As identified earlier in these reasons, each of these parties have received a number of indulgences in the progression of this matter on the litigation pathway and ensuring the readiness of the matter for trial. Section 95 and s 96 of the Act mandates that when considering and applying the practice and procedures of this forum, including the Rules, I am required to have regard to the overarching purpose to facilitate the just resolution of disputes according to the law as quickly, inexpensively, and efficiently as possible. I am required to have regard not only to the impact of any orders on individual litigants but on other stakeholders seeking access to the Court’s judicial and administrative resources. The question as to whether the Court should exercise a function pursuant to r 10.27 of the Rules and whether a trial should be adjourned or vacated are quite separate matters.
The time has come for these parties to assume responsibility for how they conduct this litigation. They are on notice that in the event they are unable to comply with their obligations as litigants as prescribed by the Act and the Rules, the provision of judicial resources of this forum in the event of continuing default will no longer be available. If it prejudices their rights, then so be it. The efficient disposal of the Court’s overall caseload and the determination of these now antique proceedings in a timely manner are integral spokes in the wheel of modern case management, directed not only to the fairness and finality of the affairs of these parties but to all court stakeholders. The High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 provides authority for courts to take into account case management principles when exercising discretions in procedural applications, even to the prejudice of a party in a particular proceeding. The High Court has made it clear that parties are not entitled to consume unlimited public resources in the pursuit of their own interests.
In the circumstances, I propose to allow these parties one final opportunity to comply with their obligations as litigants. I propose to make orders as to:
(a)extending the time for the wife to file her trial affidavit and financial statement to 30 May 2025;
(b)extending the time for the husband to file his financial statement and his trial affidavit material until close of business today, 4 June 2025; and
(c)a self-executing order that in the event either party fails to comply with the directions to be amended as to the preparation of the matter for trial, that the relief of the party in default be struck out on a self-executing basis.
Cast against that background, I refuse the husband’s application for an adjournment of the trial or vacation of the trial dates for the reasons identified earlier in these reasons. It will be a matter for the husband to progress the inquiries he proposes by way of Mr F, his adversarial real property valuation expert, and to make such application as he considers appropriate regarding evidence other than by a ch 7 single expert. As identified earlier in these reasons, it will be a matter for the husband’s mother to make such application as she is advised when she is advised.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 10 June 2025
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