Vang & Chung
[2023] FedCFamC1F 441
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vang & Chung [2023] FedCFamC1F 441
File number: SYC 1433 of 2020 Judgment of: CAMPTON J Date of judgment: 29 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – REVIEW – Where the wife seeks to review orders made by a judicial registrar for the parties to obtain single expert evidence as to the value of two real properties – Where the wife’s application is in reality for the implementation of the orders under review to be delayed until the hearing of her separate application for the husband to account or pay to her half of the rental income received on one of those properties – Where the proceedings have been on foot for more than three years, and requires progression as quickly and efficiently as possible – Application for review dismissed – Order for the parties to equally share in the valuation costs varied – Husband’s application for costs of the Application for Review dismissed. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, Pt 10.6, rr 1.04, 7.02, 10.27, 14.05, 14.07
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 29 May 2023 Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Ms Burke, Broun Abrahams Burreket ORDERS
SYC 1433 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANG
Applicant
AND: MR CHUNG
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
29 MAY 2023
THE COURT ORDERS THAT:
1.The time for the wife to file an Application for Review of Orders 3 to 10 made by a judicial registrar on 17 April 2023 be extended to 15 May 2023.
2.The wife’s Application for Review filed 15 May 2023 be dismissed.
3.Pending further order, Order 8 made on 17 Aril 2023 be varied such that:
(a)The husband shall pay in the first instance the cost of the single expert real property valuation of the Suburb F property, in the sum of $3,500 plus GST; and
(b)The wife shall pay in the first instance the cost of the single expert real property valuation of the Suburb K property, in the sum of $1,250 plus GST.
4.The husband is at liberty to make such further application as he is advised to seek that the wife contribute a greater share to the valuations of each of the Suburb F and Suburb K properties, at such future time as he considers appropriate.
5.Each of the parties are directed to Pt 10.6 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) identifying when a party is in default of an order or direction in a the proceedings, and the orders available to the Court in the event of default as prescribed by r 10.27.
AND THE COURT NOTES so that it is clear, in the event either of the parties are in default of the orders made today, they ought to be aware of the possible consequences of such default.
6.The Application in a Proceeding of the wife filed 15 May 2023 remains listed for directions before a judicial registrar on 29 June 2023 at 10.00 am.
AND IT IS NOTED THAT the husband is on notice as to the rules requiring him to file a Response to the Application in a Proceeding and any affidavit evidence prior to that listing.
7.The husband’s oral application for costs is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Vang & Chung has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine the Application for Review filed by the wife 15 May 2023, seeking to review Orders 3–10 inclusive made by a judicial registrar on 17 April 2023. Those orders are as follows:
3.Within 21 days the [husband] is to propose to the [wife], experts to undertake real estate valuation as follows:
(a)The names of three (3) proposed valuers together with their CV, estimated costs of valuation and estimated time to complete the inspection and report/s; and
(b)A draft joint letter of instruction.
4. Within seven (7) days of receipt of the panel, the [wife] shall:
(a)Nominate one (1) of the proposed valuers to undertake the valuation/s; and
(b)Provide any response in relation to the draft joint letter of instruction.
5.In the event the [wife] fails to nominate a valuer within seven (7) days of receiving the list of proposed valuers and/or a response to the draft joint letter of instruction, the [husband] shall nominate the valuer.
6.The valuer shall be engaged by way of joint letter of instruction within seven (7) days of having been selected.
7.That the parties shall comply with any reasonable request of the valuer to provide information and documents to complete the report within seven (7) days of request.
8.The parties shall equally share the costs of the valuer.
9.The parties are at liberty to provide a copy of these orders to the valuer.
10.The [husband] shall prepare an affidavit of the valuer annexing a copy of the valuer's report, and to file and serve the affidavit of the valuer.
The husband opposes the relief sought by the wife on review, insofar as it purports to disturb the integrity of those orders.
BACKGROUND
The substantive proceedings are as to property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), initiated by the wife by filing an Initiating Application on 3 March 2020, in what was then the Federal Circuit Court of Australia. The wife seeks substantive relief, cast broadly, seeks that the husband pay her an amount to achieve 20 per cent of the “net asset pool”.
The husband by way of his Response to an Initiating Application filed 6 May 2020 applies for the wife’s Initiating Application to be dismissed.
The proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia on 15 December 2022. It was asserted that the case involves “international issues” that are “complex” as to asset structures, that there are “complex valuation issues” and issues as to the interests of an estate.
The wife was born in 1989 and is currently 33 years of age. The husband was born in 1988 and is currently 34 years of age.
The wife contends the parties commenced cohabitation in early 2015, were married in 2017 and separated in 2017 (about two months later). An order for divorce was made on 22 October 2019. There are no children of the relationship.
The wife in support of her Application for Review relies upon her affidavit filed on 15 May 2023 and a Financial Statement filed on 9 April 2021, being sworn more than two years ago. The husband in course of submissions identified his Financial Statement filed on 17 December 2020.
The wife in her affidavit makes contentions as to limited financial and homemaking contributions made during the short relationship of the parties and gives evidence as to the husband spending significant periods of time during the relationship outside Australia.
The last balance sheet filed by the parties is dated 14 December 2022. It records the husband being the legal owner of a property at Suburb F, with a mortgage contended in favour his father being at a value greater than the property, such that the Suburb F property has a negative value. The same document records that the wife has a property at Suburb K, being all but consumed by the value of its mortgage.
The wife makes substantive contentions as to substantial disclosure failures by the husband as to his relevant financial circumstances, his assets, liabilities and resources.
The proceedings have been on foot for some three years. During that time, the parties been yet to participate in a financial conciliation conference. The orders made by the judicial registrar on 17 April 2023 echo a potential for a mediation to occur in the near future.
The orders made on 17 April 2023 attempt to progress the litigation in a manner consistent with r 1.04 of the the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) by way of single expert valuation expert evidence being obtained, in an effort to crystalise at least part of the property pool available for adjustment. The orders made on that date reflect the purpose of ch 7 of the Rules, as identified in r 7.02 therein.
LEAVE TO FILE THE APPLICATION FOR REVIEW
An Application for Review is required to be filed within 21 days of the making of the orders under review (see r 14.05(1) of the Rules). Hence the wife was required to file her Application for Review by 8 May 2023. She filed the Application for Review one week late, on 15 May 2023.
Rule 15.06 of the Rules permits the Court to extend the time for filing fixed by the Rules, on its own motion or on application of the parties. The husband quite properly did not take objection to the wife’s application made orally for leave to extend the time for her to file her Application for Review, and in the circumstances I will grant that leave.
THE REVIEW
Rule 14.07 of the Rules sets out the power of the Court on review from an order of a judicial registrar is to be exercised by way of an original hearing.
The gravamen of the wife’s application is in reality to delay the implementation of the orders made on 17 April 2023 until her Application in a Proceeding also filed on 15 May 2023 is heard and determined. That Application in a Proceeding is listed for directions before a judicial registrar on 20 June 2023, and having regard to the relief sought therein, is likely to be listed before a senior judicial registrar for hearing at some other time in the future.
By way of the Application in a Proceeding filed on 15 May 2023, the wife seeks orders for the husband to either account to her or pay to her 50 per cent of the rental income derived from the Suburb F property. It is her contention that the value of that rental income is in the range of $260,000 per annum. The wife has not identified the source of power pursuant to which her orders sought, and is yet to engage in the relevant considerations to ground discretion to achieve such relief. It is therefore problematic to weigh the prospects of success of her application to receive what she says will be in the range of $130,000 per annum and, or the foundation that may exist to delay the process of obtaining expert valuation evidence.
The husband’s solicitor advises and I accept that no application for a stay of the orders made on 17 April 2023 was sought or achieved. Against that background, the husband’s solicitor advises and I accept that the husband provided to the wife the name of three proposed experts to value the Suburb F and Suburb K properties, together with their estimated costs for the valuations and a draft letter of instruction within the time proscribed by the orders made on 17 April 2023, and the wife did not nominate her selection from those experts proposed. In those circumstances, the husband nominated Mr XX as the expert to undertake a valuation of each of the Suburb F and Suburb K properties, at a total cost of $4,750 exclusive of GST. The solicitor for the husband identified that the total cost comprises $1,250 for the Suburb K property and $3,500 for the Suburb F property, each exclusive of GST.
It is the wife’s broad contentions in her affidavit filed 15 May 2023 that she does not have the financial resources to contribute equally to the costs of the single expert opinion in compliance with Order 8 made on 17 April 2023. Her Financial Statement, albeit filed more than two years ago, records that she was in receipt of an income of just under $2,000 per week and had $52,000 in the bank. She has advised the Court, and I accept for the purpose of this determination, that she has used most of her savings to meet the costs of various different solicitors engaged by her in these proceedings, and that she now receives $2,000 income per fortnight and not per week.
The husband’s most recent Financial Statement was filed more than two years ago. He is currently resident in Country YY. The Court has no updated particulars as to his financial circumstances. His solicitor asserts that he does not work.
CONCLUSION
Cast against a background of uncertainty as to the merits of the wife’s Application in a Proceeding filed 15 May 2023, and as to when that application will be heard and determined, the Court is left with little alternative other than to ensure the proper progression of the litigation as quickly and efficiently as possible.
Having regard to the property positions of each of the parties at law, as identified in the balance sheet filed on 14 December 2022, and so as to avoid any further delay in the litigation, orders will be made dismissing the wife’s Application for Review filed on 15 May 2023. Order 8 made on 17 April 2023 shall varied pending further order, such that the husband will be responsible for and pay in the first instance the valuation costs of the Suburb F property and the wife shall pay in the first instance the valuation costs of the Suburb K property. The husband shall have capacity to make such further application as he is advised for the wife to make further contribution to the cost of the valuations later in the litigation.
COSTS
The husband makes an application for costs expended in the hearing of the Application for Review at scale.
The quantum of the costs sought by the husband is de minimis when cast against the value of his real property as recorded in his Financial Statement filed on 17 December 2020 and the balance sheet filed on 14 December 2022. The husband contends that he is out of work and resides in Country YY. As recorded above, I have no other evidence as to the current financial circumstances of the husband or of the wife.
I accept that the Application for Review has been largely unsuccessful, but that alone in the context of this matter, is not a justifying circumstance to warrant an order for costs.
In the circumstances, I will not depart from the ordinary position that each party bear their own costs of the litigation. The husband’s oral application for costs is dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 29 May 2023
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