Property adjustments following the breakdown of a relationship can be incredibly challenging for all parties involved. To streamline the process and avoid increasing costs and delays, active case management in the Family Law Court of Australia is crucial.
In the recent case of Borja & Charmchi [2024], however, the case was wrongly assessed as being too complex, which resulted in unnecessary procedural issues, increased delays and costs for the parties.
Further discussion of this case sheds light on how such issues can arise. It also explains transfers between divisions of the Family Court of Australia and clarifies expected procedures.
Here at Rowan Skinner and Associates Lawyers, we are Family Law experts and have a complete understanding of how Court processes function. Our team is here to guide you through the Court system and ensure your case is handled with precision and care.
Facts of Borja & Charmchi [2024]
In this case, the parties were seeking a property adjustment under Section 79 of the Family Law Act 1975 (Cth). This section allows for the adjustment of property interests between parties following the breakdown of their marriage or de-facto relationship. The aim is to ensure a just and equitable division of assets. Contributions made by each party throughout the relationship, and any future needs of the parties are factors taken into consideration.
However, the journey to property adjustment in Borja & Charmchi was far from straightforward. The procedural issues that arose played a significant role in delaying the final resolution of the matter.
The Procedural Issues
The matter began on 2 July 2021, when the case was assigned to a judge in Division 2 of the Family Court. Initially, the case was scheduled for a final hearing over three days, set to begin on 11 July 2023. This timeline, however, was impacted by a series of procedural developments that caused considerable delays.
Transfer to Division 1
On the second day of the hearing (12 July 2023), the Judge transferred the matter to the Division 1 Court. However, this Court typically handles more complex family law trials and appeals.
The Judge did so because he found that the case was taking longer than expected to resolve. The first day of the hearing was primarily spent exploring settlement negotiations, while the second day saw the parties requesting an adjournment due to time constraints and the need to file further evidence.
The Judge was also influenced by the wife’s oral application for a transfer of proceedings to Division 1. The wife cited the complexities of the matter as reason for her request. She believed the Court should assess the parties’ contributions on an asset-by-asset basis and reliance on expert medical evidence. She also argued that some of the property in question, which she claimed was held in trust for her adult children, should be quarantined from the matrimonial property pool.
A Delay in Resolution
After the Judge’s decision, the case was then scheduled for hearing in Division 1 on 12 August 2024. This was more than a year after the initial final hearing in the Division 2 Court was held.
During this hearing, Justice Campton noted that the matter had not been subject to active case management in Division 2. He held that the complexities identified earlier in the proceedings were inaccurate. He also found that the volume and content of evidence had been overstated, leading to an unnecessary transfer of the matter to Division 1.
The Lessons Learned
The Family Court of Australia (FCFCA) Act allows for transfers from Division 2 to Division 1. This is at the discretion of a trial judge, which must be exercised carefully and cautiously. In Borja & Charmchi, the transfer ultimately resulted in a lengthy delay for the parties involved. This caused unnecessary distress and prolonged the legal process.
While Section 79 of the Family Law Act 1975 (Cth) provides a framework for property adjustment, Borja & Charmchi highlights the importance of effective case management. It also underscores the need for judges to critically evaluate the matter before transferring a case between court divisions. This ensures that delays are minimized and that the parties’ interests are protected.
If you require advice on a family law property settlement from an Accredited specialist in Family Law, contact us today for a no-obligation discussion about your matter. We service clients in Melbourne Northen Suburbs such as Clifton Hill, Northcote, Thornbury, Alphington, Carlton, Fitzroy, Kew and Heidelberg.
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.