Valakos & Rossetto
[2024] FedCFamC2F 890
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Valakos & Rossetto [2024] FedCFamC2F 890
File number(s): MLC 2220 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 28 June 2024 Catchwords: FAMILY LAW – property – late service of affidavit prejudicial to other party – reliance on affidavit not permitted – trial directions mean what they say. Division: Division 2 Family Law Number of paragraphs: 9 Date of hearing: 27 and 28 June 2024 Place: Melbourne Counsel for the Applicant: Ms Bolton Solicitor for the Applicant: Pearsons Lawyers Pty Ltd Counsel for the Respondent: Mr Kaufman Solicitor for the Respondent: Massi Ahmadzay and Associates ORDERS
MLC 2220 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VALAKOS
Applicant
AND: MR ROSSETTO
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS BY CONSENT THAT:
1.Within 60 days of the date of the date of these Orders (“the due date”) the Applicant pay to the Respondent the sum of $140,000 (“the payment”) to be paid into his solicitor’s trust account.
2.Contemporaneously with the payment pursuant to Order 1 herein, the Respondent shall do all acts and things necessary to withdraw the caveat (…) on the property located at B Street, Suburb C (“the Suburb C property”), at his expense.
3.That in the event that the Applicant defaults on the payment, or part thereof, pursuant to Order 1, by the due date then within a further 30 days the Applicant do all such acts and things and sign all such documents to cause the Suburb C property to be sold altogether out of court (“the sale”) within three months of the due date.
4.For the purposes of the sale of the Suburb C property:
(a)The Applicant have sole conduct of the sale process, including the appointment of real estate agent and conveyancer; negotiation with the real estate agent with respect to the sale process, reserve price for the Suburb C property, and all other aspects of the sale process.
5.That interest shall accrue on the payment or any part thereof not made by the due date at the rate prescribed for the time being in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
6.Upon completion of the sale the Suburb C property the proceeds of sale be applied as follows:
(a)firstly, to pay all the reasonable costs, commissions and expenses of the sale;
(b)secondly, to discharge any encumbrance affecting the real property;
(c)thirdly, to the Respondent in the sum of the payment or any part thereof which remains outstanding plus interest as calculated in accordance with paragraph 5 hereof; and
(d)lastly, the balance remaining to the Applicant to be paid to her solicitors.
7.Pending the sale of the Suburb C property, or the payment of the settlement sum pursuant to Order 1 herein:
(a)The Applicant shall be solely responsible for and shall indemnify the Respondent against all outgoings with respect to the property including but not limited to mortgage repayments, the rates, utilities and taxes;
(b)The parties shall be restrained from further encumbering the Suburb C property; and
(c)The parties hold their respective interest in the property upon trust pursuant to these orders.
8.The Applicant retain for her sole use and benefit:
(a)The Suburb C Property;
(b)The balance of all bank accounts standing in her sole name;
(c)Any motor vehicle registered in her sole name;
(d)Her personal possessions, including household contents; and
(e)Her Superannuation entitlements.
9.The Respondent retain for his sole use and benefit:
(a)The payment pursuant to Order 1 herein;
(b)The balance of all bank accounts standing in his sole name;
(c)Any motor vehicle and motorbike registered in his name or in his possession;
(d)Motor Vehicle 1 in his possession;
(e)The interest in the estate of Ms D;
(f)His personal possessions including household contents; and
(g)His Superannuation entitlements.
10.That unless otherwise specified in these Orders, the Applicant and Respondent each be solely liable for and indemnify each other in relation to all debts and liabilities of any nature, in their names or attaching to any item of property, including Capital Gains Tax, which they are to retain or to which they are untitled hereunder.
11.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(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 these orders;
(b)Subject to any other order. monies standing to the credit of the parties in any joint bank accounts in their joint names are to be distributed to the Applicant and the account will be closed;
(c)Each party forego 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 to which that party is entitled pursuant to these orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed
12.That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Federal Circuit and Family Court of Australia at Melbourne be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such document in the name of such party.
13.All extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
It's 10.30 on the second day of the trial, and I am asked to determine whether or not to grant leave for the applicant wife, Ms Valakos (‘the Wife’), to rely upon an affidavit served on counsel for the respondent husband, Mr Rossetto (‘the Husband’), this morning.
Background
The parties married in 2003 and had a relationship prior to that. It is in issue whether the relationship prior to marriage was one of cohabitation or merely a romantic or what could be called boyfriend-girlfriend relationship from 1999. The date of separation or the end of the marriage is an issue. One party alleges that it was in 2008 and that the parties thereafter were separated under one roof together with their children now aged 21, 18 and 16. From the Wife’s first affidavit, the issue of the drug use of the Husband during the relationship and the issue of violence during the relationship were well and truly ventilated and alive. The Husband has engaged with those allegations in his trial affidavit, and the Wife has engaged with his response in a reply affidavit filed 20 June 2024.
Affidavit sworn and not served
In addition to that, one of the parties relies upon an affidavit of their adult daughter, now 21, that demonstrates, on its face, strong feelings of loyalty to one parent and antipathy to the other. It turns out that back on 20 June 2024, not that it was that long ago, an affidavit was sworn from the parties’ eldest son but not served or filed. I am satisfied that at that point, a decision was made that that affidavit would not be relied upon.
This morning, the previously undisclosed affidavit, I'm told of 26 paragraphs, was served on counsel for the Husband. Counsel has not yet had the opportunity to take instructions. It will be necessary to interrupt the flow of the trial for that to occur. The matter was set down for two days. The morning of yesterday was taken up (sensibly) with an attempt by the parties to compromise their respective positions, and to, with some skill, entice me to give a preliminary indication. I spent some time discussing what I understood to be common ground or events incontrovertibly demonstrated by contemporaneous records, but I was unable to assist the parties with a preliminary view because:
(1)I had not formed a preliminary view; and
(2)the extent of factual findings necessary to be able to form a preliminary view; and
(3)a view about those factual matters in dispute was simply not possible when neither party had been cross-examined or in ordinary terms “tested” in their evidence.
The intention to rely upon the affidavit of the oldest son is said to have arisen from evidence that the Wife had given when being cross-examined by the Husband’s counsel. It is said that that affidavit has particularity about two events, one being an observed drug deal and, the other being an incident that was referred to where one party's head was “leaning into” the other party.
It is complained that the late reliance on the affidavit is prejudicial to the Husband. I am satisfied that that is prejudicial to him.
The trial directions mean what they say. They can be varied if it is necessary in the interests of justice. But I am not satisfied, in the interests of justice, that I should permit the very late filing of the further affidavit. I do acknowledge that it would be very difficult for the Husband to now raise a ‘Jones v Dunkel’ issue in regard to that witness, if that was ever intended to be raised. But I am not going to enter into whether or not it would have been valid had it been raised.
POSTSCRIPT
The proceedings later resolved by consent orders.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 10 July 2024
0
0
0