Wasem & Nasser (No 4)
[2024] FedCFamC2F 257
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wasem & Nasser (No 4) [2024] FedCFamC2F 257
File number(s): PAC 6078 of 2020 Judgment of: JUDGE STREET Date of judgment: 16 February 2024 Catchwords: FAMILY LAW – PROPERTY – part-heard hearing adjournment application – outstanding damages issues where property not yet sold- adjournment granted Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 6 Date of hearing: 16 February 2024 Place: Sydney Solicitor for the Applicant: Ms K Rutkowska of Ark Law Family Law Solicitor for the First Respondent: Ms J Alim of Marsdens Law Group Counsel for the Second Respondent: Mr B Geddes KC Solicitor for the Second Respondent: Bransgrove Lawyers Third Respondent: No Appearance Counsel for the Fourth Respondent: Mr J Neal Solicitor for the Fourth Respondent: Lander & Rogers Counsel for the Fifth Respondent: Mr J Neal Solicitor for the Fifth Respondent: Lander & Rogers ORDERS
PAC 6078 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WASEM
Applicant
AND: MS NASSER
First Respondent
B PTY LTD
Second Respondent
C PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Order 2 made on 14 September 2023 is vacated.
2.Order 1 made on 18 September 2023 is vacated.
3.The balance of the part-heard final property hearing is fixed to commenced at 10:00am on 30 July 2024 to 2 August 2024 in person at Garfield Barwick Commonwealth Law Courts Building, 1-3 George Street, Parramatta.
4.Leave is granted to any witness or expert to give evidence by video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
5.Directs the second respondent file and serve an affidavit in relation to the sale value of the property, if that occurs, within seven (7) days of the sale.
6.Leave is granted to the parties to provide any supplementary submissions, if they wish, referrable to the consequence of the sale value of the property.
7.Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were originally commenced on 13 November 2020 as involving parenting and property issues between the applicant father (“the father”) and the respondent mother (“the mother). Final parenting orders were made on 30 November 2022. The property proceedings including s 106B of the Family Law Act 1975 (Cth) (“the Act”) issues and cross claims became part heard in September 2023, following which orders were made fixing the matter to be heard on 19 to 23 February 2024. The third respondent has filed an application in a proceedings on 12 February 2024, seeking to vacate the hearing date.
The affidavit in response identifies that steps are now being taken to realise the property. That property was the subject of encumbrance by the applicant after the commencement of these proceedings. There is an outstanding contempt application as to the creation of that encumbrance. The third respondent contends that that realisation will have an impact on the potential relief, depending upon the view taken as to how the damages should be quantified in relation to the s 106B claim and how damages should be quantified under the cross claims. The affidavit contends that the realisation of the property, now in progress, will also have a potential assistance to whatever discussions might be able to take place.
The adjournment was opposed on behalf of the first respondent, the mother, by Ms Alim, who contended that the mother’s position was one of lack of substantial assets and a desire to bring the matter to an end. All parties desire to bring the matter to an end. It is apparent that the current intended hearing date in February would necessarily do so because of the damages issues. Mr Neal, on behalf of the fourth and fifth respondents, also proposed that the time set aside in February be used to take some further evidence, but implicit in his submissions, was the real risk that there may still need to be a further adjournment because of the potential problems in respect of the realisation of the property and damages. It was suggested that the Court was in a position where it had evidence as to valuation. The sale of the property will crystallise certain alleged heads of loss and clearly has the potential to have a material impact, upon how damages might be quantified and the content of final orders. It further has an obvious impact in relation to the possibility of the parties being able to achieve a consensual outcome. Multiple adjournments for part heard hearings that cannot conclude the proceedings are not in the interests of the administration of justice.
The Court is persuaded that it is in the interests of the administration of justice to adjourn the part-heard hearing. The Court finds that the matter is unlikely to conclude on the current hearing dates and prior to sale of the property due to the impact of the various issues of alleged loss and damage both under s 106B of the Act and in relation to the cross claims. It is for these reasons that the Court has made the orders pronounced, vacating the hearing date, refixing the matter for hearing for four days and making an order about affidavit evidence as to the sale of the property from the second respondent and further submissions by any of the parties within seven days prior to the new part-heard hearing dates. There was a suggestion by Mr Neal that it would be appropriate to make orders relating to further expert evidence. The Court does not accept that further expert evidence is required in the context of the case that is part-heard, but if a party seeks to adduce further evidence, obviously the timeliness of that will impact on the likelihood of the Court permitting it to be received into evidence, subject to the relevant objections that might be raised.
The Court is not persuaded that it is appropriate to make any further directions in respect of expert evidence, given the part-heard nature of the hearing at this stage. Mr Neal foreshadowed that the possibility that the Court might be in a similar position when the matter comes on for intended hearing at the end of July. That is a risk that is not without substance. However, the new dates in August 2024 are the earliest possible hearing date that the Court can provide, mindful of the issues raised also by the second respondent.
It is for these reasons the Court makes the above orders.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 4 March 2024
SCHEDULE OF PARTIES
PAC 6078 of 2020 Respondents
Fourth Respondent:
MR ATTIA
Fifth Respondent:
D PTY LTD
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