Woodham & Woodham
[2021] FedCFamC1F 348
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Woodham & Woodham [2021] FedCFamC1F 348
File number(s): MLC 13213 of 2019 Judgment of: BENNETT J Date of judgment: 9 November 2021 Catchwords: FAMILY LAW- FINANCIAL – competing claims for final alteration of property interests - where the value of assets is small and the issues are defined
FAMILY LAW- PRACTICE & PROCEDURE – where court adopts principles of Fast Track Hearing as articulated in the Chief Justice’s Central Practice Direction for family law case management]
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 9 November 2021 Place: Melbourne (via MS Teams) Solicitor for the Applicant: Kordos Lawyers Solicitor for the Respondent: Sebastian Rubera & Assoc ORDERS
MLC 13213 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WOODHAM
Applicant
AND: MR WOODHAM
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
9 NOVEMBER 2021
BY CONSENT THE COURT ORDERS THAT:
1.That the Woodham Super Fund comprising preserved, restricted non-preserved, unrestricted non-preserved components including the tax-free component and the taxable component (“the Totality of the Benefits”) shall be divided so that a sum $184,838. totality of the benefits shall be transferred to the Applicant to the exclusion of the Respondent and the parties shall do all acts and things and sign all necessary documents for the Respondent to transfer the sum $184,838 of the Respondent’s share to the Applicant and the Respondent shall indemnify the Applicant with respect to all claims, debts and demands relating to the Applicant’s entitlements and transfer of entitlements in the Woodham Super Fund pursuant to these Orders.
2.That in accordance with paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth) there be a Superannuation split between the parties whereby the Respondent will transfer the sum $184,838 (“the sum”) in the Woodham Super Fund to the Applicant.
3.That pursuant to the provisions of Order 2 and 3 herein, the base amount of $184,838 the totality of the benefits is allocated as required by s.90XT(1)(a) of the Family Law Act 1975, to MS WOODHAM in the Woodham Super Fund.
4.That whenever a splittable payment with the meaning of Section 90XT(1)(a) of the Act becomes payable to or on behalf of MR WOODHAM from his interest in the Woodham Super Fund the trustee shall pay to MS WOODHAM the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and make a corresponding reduction in the entitlement MR WOODHAM would have had but for these Orders.
5.That Orders 1, 2, 3 and 4 have effect from the operative time.
6.That the Operative time is 14 business days from the date of the making of these Orders.
7.That Orders 1, 2, 3, 4, 5 and 6 bind the Trustee of the Woodham Super Fund.
8.That the Trustee of the Fund has been accorded procedural fairness in relation to the making of Orders 1, 2, 3, 4, 5, 6 and 7 and these Orders in relation to Superannuation Split and the Respondent in his capacity as Director of the Fund:
(a)acknowledges that the Fund has received procedural fairness in respect to these Orders; and
(b)shall forthwith do all acts and things required pay the sum to be paid from the fund to a superannuation fund of the Applicant’s choice no later than 14 days from the date of the making of these Orders.
IT IS FURTHER ORDERED BY THE COURT, BY CONSENT, THAT:
9.This matter be fixed for final hearing before me on 2 December 2021 at 10.00 am estimated to take 1 day and, subject to any further order, the trial be conducted as follows:
(a)on the evidence as currently filed and relevant to the issues to be determined;
(b)where the issues to be determined are:
(i)the apportionment of liabilities, being $28,814 in arrears of school fees;
(i)which party is entitled to retain the corporate trustee and the discretionary trust (which it is agreed has no current value);
(ii)a division of the proceeds of sale in the sum of $70,000.
(c)without cross-examination;
(d)with a joint memorandum of agreed facts;
(e)on written submissions being up to 10 pages per party setting out the relevant contentions of fact and law and oral submissions of not more than one hour for each party; and
(f)with short form reasons for judgment.
IT IS FURTHER ORDERED THAT:
10.Pursuant to Rule 12.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the parties’ practitioners file and exchange costs notifications 7 days before the final hearing.
11.My reasons for decision this day be transcribed and when settled be placed on the Court file and a copy provided to the parties.
IT IS DIRECTED:
12.That the minute of consent orders be marked Exhibit “A” and remain on the Court file.
13.That the husband’s proposed minute of orders be marked Exhibit “B” and remain on the Court file.
AND IT IS NOTED that neither party contemplates the need for expert evidence or to re-visit the split of superannuation interests provided for herein.
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 the pseudonym Woodham & Woodham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex temporeBENNETT J:
This matter comes before me with the parties having gone to their second alternative resolution event before Judicial Registrar Ferreira, the first having taken place on 19 October 2021, and the second taking place today. The parties have been able to agree to a division of their superannuation interests, and I have made orders in those terms. The superannuation order is an interim order in the property proceedings but, I am told, that it is not envisaged that either party will seek any further adjustment in relation to superannuation interests.
The parties are represented by experienced solicitors, and have in the past had the benefit of experienced family law counsel. Today they say that they cannot resolve everything by agreement but neither party can afford to go any further in the proceedings. I can offer them a final hearing in six or so months but I am assured that neither will be able to prepare their case any more than it is now prepared and that the personality of each party does not equip either to represent themselves well. In short, to allocate a regular hearing in the ordinary course would be of illusory benefit and, having regard to the parties’ pressing liability for private school fees and the fact that their respective entitlements will be wholly absorbed in legal costs, would be injurious to each.
I am told, and accept, that each party’s legal costs exceed by tens of thousands of dollars any alteration of property interests to which he/she could be entitled. The parties are not in a unique position but in this case both practitioners ask that I tailor the hearing process so that it is cost effective and immediate. In terms of immediate, they seek only half to one day. In terms of process, the parties agree to forgo their entitlement to cross examination, to adduce further evidence and for elaborate reasons for decision.
On 1 September 2021 the Chief Justice published Central Practice Direction – Family Law Case Management which gives expression to a more proportionate and cost effective and efficient way for the court, practitioners and self-represented litigants to manage cases in Division 1 and Division 2 of the Court. The purpose of the Direction is to reduce unnecessary cost and delay in family litigation and facilitate proceedings being conducted with the least possible acrimony in order to minimise harm to children and families. Sadly, in this case the father’s relationship with the children is seriously fractured and the adolescent girls are significantly aligned with the wife.
The Direction records the expectation of the court that the parties and their lawyers will think about the best way to conduct their cases in accordance with the overarching purpose which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As with this case, the parties and their lawyers should expect that the Court will engage with them in a dialogue to achieve the overarching purpose.
Paragraphs 5.48 to 5.50 of the Direction, describe a Fast Track Hearing to which the court in its discretion may allocate a case. The matters which are to inform the assessment of whether a matter is suitable for a Fast Track Hearing are enumerated to include whether:
(a)the parties have been unable to resolve the matter despite making a genuine effort to do so;
(b)the parties have clearly identified the issues in dispute between them;
(c)the issue or issues to be determined are discrete or are of limited scope;
(d)reports from experts have been obtained and any relevant requisitions and conferences have been held with those experts;
(e)the parties agree that the matter may be determined:
(i)on the basis of affidavit evidence without the need for cross examination, and
(ii)on the basis of written submissions of no more than 10 pages setting out the relevant contentions as to law and fact or oral submissions not exceeding one hour in respect to each party;
(f)the parties will be in a position to present their case on the provision of 28 days' notice of the hearing date; and
(g)the parties consent to the use of short form reasons for judgment.
The parties in these proceedings meet all of the above criteria.
The practitioners identify the remaining issues to be an apportionment of liabilities, which is principally a debt owing to B School, in the sum of $28,814. The next issue is who is to retain the discretionary family trust structure, including the corporate trustee of it. To date, the husband has had control of the corporate trustee of the discretionary trust. For the purpose of this hearing, neither party attributes a dollar value to the trust structure and there will be no valuation evidence, however clearly to one or both of the parties, there's some amenity attached to the corporate trust structure. And the wife seeks that control of the entity pass to her, whereas the husband seeks that it remain with him.
The next and final issue is what happens to the then remaining proceeds of sale of the former matrimonial home, which the practitioners calculate will be less than $70,000.
The nub of the matter is that the husband has spent, he says, $125,000 in legal costs which have been significantly funded by his parents and he says he will have to repay that debt to his parents. The applicant wife has spent something in the vicinity of $117,000 in costs up to October 2021. She has no funds out of which to pay those costs other than the proceeds of the judgment in this hearing. So whatever either party gets by way of property settlement will be eaten by legal costs and, presumably, each will still have a liability for some balance of unpaid costs.
The parties consent to there being no cross-examination in the forthcoming hearing and their evidence being confined to the affidavit material that they have filed, and any agreed facts. At the moment, there are agreed facts set out as recitals A to L in a document, which is on the Court file. I will mark that exhibit B and direct that it remain on the Court file.
The parties agree to provide written submissions of no more than 10 pages setting out the relevant contentions as to law and fact and augmented by oral submissions which will not exceed one hour each in relation to each party.
I propose to conduct the hearing in the spirit of the Fast Track Hearing list. I was prepared to take the matter tomorrow, however, one of the parties isn't available. I will request that my associate release a series of dates to the parties by Thursday morning at the latest, and they can choose one of those dates.
I asked the parties and practitioners to recognise that it is easy to say now that he/she wants the proceedings to be finalised without undue formality, as quickly and with as little expense as possible. However, a party may regret having cut corners or not having tested evidence in cross examination if the award (share of property) to which he/she is found to be entitled is less than they think they should have received. Particularly, in a jurisdiction where the assets are finite and most litigants receive an entitlement which is less than they feel they deserve (before costs). I am assured that the parties will wear a quick but principled result.
Finally, I am persuaded that there are no significant deficiencies in discovery or the observance of each party’s duty of disclosure and that each party would be equivalently disadvantaged by proceeding to a full blown hearing.
I am satisfied that it is appropriate and in the interest of justice to adopt a trial plan as agreed to by the parties through their practitioners and will order accordingly.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 9 November 2021. Associate:
Dated: 14 January 2022
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