…between wife and husband’s trustee in bankruptcy, without husband’s consent
In Faldyn & Badenoch (No 2) [2022] FedCFamC1A 204 (8 December 2022), Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, dismissed with costs an appeal from final property orders made by Judge Taglieri.
The orders were made by consent between the wife, her father and the husband’s trustee in bankruptcy, in the husband’s absence. The orders pertained to a short marriage and about $200,000 of sale proceeds.
The orders were made at a case management hearing, at which all parties (including the husband) appeared. The matter was stood down to facilitate property settlement discussions, where the husband was invited to attend when the matter resumed at 3pm. The husband failed to appear upon resumption and orders were made in his absence.
The husband appealed, arguing that he was denied procedural fairness as to the orders; and further argued that he had a right to be heard in respect of “concealed assets” that he said were not disclosed by the wife.
Aldridge J said (from [29]):
“The appellant could have been under no doubt that the purpose of the matter being stood down was so that not only could settlement discussions take place, but it was also anticipated that they would be successful and consent orders could be placed before the Court later that day. (…)
[33] The appellant was afforded the opportunity to present his case at the time the consent orders were made. …
[34] There was no denial of procedural fairness … (…)
[44] Both s79(11)(c) and s79(11)(d) [of the Family Law Act 1975 (Cth) (the Act)] applied … [T]he appellant was not entitled to ‘make a submission to the court in connection with any vested bankruptcy’ without the leave of the court (s79(12)). …(…)
[47] … [Section] 79(12) of the Act prevents the bankrupt party from making submissions unless he or she has leave or unless there is property of the bankrupt that has not vested, or at the least, there is non-divisible property that can be retained by the bankrupt pursuant to s116 of the Bankruptcy Act.
[48] There is no suggestion of any such property here, so that the only division of property that can occur is that between the respondents and the Trustee, on which the appellant, absent leave, has no right to be heard. … (…)
[59] … [O]n the facts of this case, there is no basis whatsoever, for the appellant to pursue a claim under s79 of the Act against any concealed assets. …”
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).
Share this article