Vaile and Labrum and Ors

Case [2019] FCCA 2867

FEDERAL CIRCUIT COURT OF AUSTRALIA

VAILE & LABRUM & ORS [2019] FCCA 2867

Catchwords:
FAMILY LAW – Parenting and property application – where husband has long history of illicit drug abuse – where husband incarcerated on several occasions, including for offences of violence – where parties’ relationship of brief duration produced child for whom applicant has had sole care and responsibility – where respondent has had no contact and provided no support to child – where applicant had negligible property are commencement of relationship – where parties agreed that an adjustment of property interests is just and equitable – contributions – where respondent’s family pooled resources for property development activities – where respondent’s assets inextricably tied in with family resources – where respondent’s mother and siblings apply, by consent, to be joined to proceeding – where added respondent’s advance proposal for final adjustment of property interests – where applicant and added respondent’s consent to proposed orders –  where respondent husband submits proposed orders are ‘within the range’ – respondent husband fails, despite repeated opportunity, to file trial affidavit, financial statement, outline of case or to identify asset pool – applications for adjournment, joinder of parties, for proceeding to be heard on an undefended basis and for leave to withdraw from proceeding – applicable principles – final orders made for adjustment of property interests.

FAMILY LAW – Practice and procedure – application for adjournment – appointment of litigation guardian – application for joinder – application by counsel to withdraw – application to proceed on undefended basis – failure to comply with directions regulating conduct of trial – failure to file trial affidavit, current financial statement, outline of case or engage at trial as to asset pool – applicable principles – where first respondent husband participates in trial, cross-examines, consents to joinder and makes submissions – where scope of undefended hearing is limited – proceeding conducted on an undefended basis.     

Legislation:

Administration and Probate Act 1958 (Vic), ss.70K(1), 70ZG(1), 90A

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.80, 81, 106A

Family Law Rules2004 (Cth), rr 11.01, 11.02
Federal Circuit Court Rules 2001 (Cth), r 25.12
Victorian Bar Practice Rules, rr 2, 15, 16, 98, 103

Cases cited:

A and Z [2006] FamCA 179
Abbott and Abbott [1995] FamCA 5
Atkinson and Atkinson (1997) FLC 92-728
CDV17 v Minister for Immigration and Border Protection [2019] FCA 726
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Chang and Su (2002) FLC 93-117
Dey v Victorian Railways Commissioners(1949) 78 CLR 62
DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10
F and S [2005] FamCA 44
Gallo v Dawson (1990) 93 ALR 479
In the marriage of Krebs(1976) FLC 90-117
Jackamarra v Krakouer (1998) 195 CLR 516
Lanceley and Lanceley [1994] FamCA 94
McMahon and McMahon (1976) FLC 90-128
Sali v SPC Ltd [1993] HCA 47
Stanford v Stanford (2012) 247 CLR 108
Tate v Tate[2000] FamCA 1040

Zane & Allan[2008] FamCAFC 115

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AGLC
Vaile and Labrum and Ors [2019] FCCA 2867
Case
[2019] FCCA 2867
Decision Date

CaseChat Overview and Summary

This case concerned parenting and property adjustment applications before Judge A Kelly. The applicant wife sought orders against the respondent husband, who had a history of drug abuse and incarceration, and had provided no contact or support for the parties' child. The wife had minimal property at the commencement of the relationship, which was of brief duration. The respondent husband's family, who were joined as added respondents by consent, proposed a final adjustment of property interests, to which the applicant wife and the added respondents consented. The respondent husband indicated the proposed orders were within an acceptable range, despite failing to file essential trial documents and engage meaningfully with the asset pool.

The court was required to determine the appropriate property adjustment orders, considering the parties' contributions and the just and equitable outcome. Procedural issues also arose, including applications for adjournment, the appointment of a litigation guardian, the joinder of parties, counsel's application to withdraw, and the application to proceed on an undefended basis due to the respondent husband's non-compliance with court directions. The court had to assess whether to proceed on an undefended basis given the respondent husband's limited participation.

The court reasoned that despite the respondent husband's history and lack of engagement, he did participate in the trial by cross-examining and consenting to the joinder of his family members, and made submissions. Therefore, the scope of an undefended hearing was limited. The court ultimately made final orders by consent of the applicant wife and the added respondents, and with the respondent husband's indication that the orders were within an acceptable range. These orders included the wife retaining a specific property, the husband paying a sum of $120,000 to the wife, and provisions for the sale and distribution of proceeds from another property to facilitate these payments and reimburse the added respondents. The court also made orders regarding the husband's obligation to execute documents for the sale of property, appointing a solicitor to execute them in his name if he failed to do so. All other extant applications, including parenting orders sought by the fourth respondent, were dismissed.

Orders

Orders of the court

1.

The applicant (wife) retain for her sole use and benefit the property comprised in J Street, Suburb K, in the State of Victoria.

2.

By 4.00pm on 31 December 2019, the 1st respondent (husband) pay to the wife the sum of $120,000.

3.

By consent of the applicant and 2nd respondent, the said sum of $120,000 may be paid in the first instance to the applicant by the 2nd respondent.

4.

If the said sum of $120,000 is paid by the 2nd respondent to the applicant, the 2nd respondent is at liberty to recoup that sum from the net proceeds of sale of the known as and situate at L Street, Suburb M, in the State of Victoria (L Street, Suburb M property) in accordance with paragraphs (5)-(6) of this Order.

5.

The 1st respondent husband forthwith do all things and sign all documents necessary so as to authorise the 2nd, 3rd, 4th and 5th respondents to:

(a) complete construction of the 2 dwellings on the L Street, Suburb M property;

(b) complete the subdivision of the L Street, Suburb M property; and

(c) sell the land and dwellings comprised in the L Street, Suburb M property;

on such terms and conditions as the respondents may reasonably decide (and at the expense of the 2nd, 3rd 4th and 5th respondents), save that in default of agreement, such terms and conditions of sale be determined by the President for the time being of the Real Estate Institute of Victoria.

6.

Upon completion of the sale of the rear dwelling comprised in the L Street, Suburb M property and proposed subdivision, the proceeds of that sale be applied as to:

(a) payment of all costs and commissions of sale;

(b) payment of the debt secured by caveat … lodged by National Australia Bank in relation to its unregistered mortgage;

(c) reimbursement to the 2nd respondent of the said sum of $120,000 paid on behalf of the 1st respondent husband;

(d) payment of the residue to the 2nd respondent.

7.

Upon completion of the sale of the front dwelling comprised in the L Street, Suburb M property and proposed subdivision, the proceeds of that sale be applied as to:

(a) payment of all costs and commissions of sale;

(b) payment of $661,000 to the 4th respondent in discharge of the mortgage registered in her name over the L Street, Suburb M property; and

(c) payment of the residue to the 3rd respondent.

8.

Upon payment or recovery of the said sum of $120,000 and completion of the settlements of the sale of the L Street, Suburb M property, paragraph (4) of the interim Order made on 20 August 2019 be discharged.

9.

Declare that the distributions referred to in paragraphs (6) and (7) of this Order herein are made in complete satisfaction and extinguishment of any debt or alleged debt owing by the applicant wife and/or 1st respondent husband to the 2nd, 3rd, 4th and 5th respondents or any of them.

10.

If within 7 days of any written request to do so the 1st respondent husband fails to execute any document and/or do anything as may reasonably be required of him pursuant to paragraph (5) of this Order, pursuant to section 106A of the Family Law Act 1975 (Cth), Aaron van der Heyden, solicitor of Tisher Liner FC Law, 333 Queen Street, Melbourne, is appointed to execute all such documents in the name of Mr Labrum and do all things as may be required so as to give validity and operation to this Order.

11.

Contemporaneously with receipt of the said sum of $120,000 pursuant to paragraphs (2)-(4) of this Order, the applicant wife shall remove any caveat which has been registered by or on her behalf over any property registered in the name of the 1st respondent husband.

12.

As between the applicant wife and 1st respondent husband, unless otherwise specified in this Order and save for the purposes of enforcing any monies due under this or any subsequent Order:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of this Order;

(b) each party be liable for and indemnify the other in relation to any personal debt and credit card in their names;

(c) each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;

(d) insurance policies remain the sole property of the owner named thereon;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property, any claim, suit or debt in relation to or arising from any item of property to which that party is entitled pursuant to this Order; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

13.

By 4.00pm on 31 October 2019, the applicant file and serve any submission respecting the costs of this proceeding (not more than 3 pages).

14.

By 4.00pm on 28 November 2019, the respondents file and serve any submission respecting the costs of this proceeding (not more than 3 pages).

15.

Any application for costs be decided on the papers.

16.

All extant applications, including the 4th respondent’s application for parenting orders concerning X born … 2014, be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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