Shala & Shala (No 2) [2025] FedCFamC2F 478 (14 April 2025)

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are property proceedings in which the parties make competing claims about a financial agreement made on or around 28 February 2018 and revised on or about 20 February 2020[1] (the financial agreements").
2. By Application in a Proceeding filed 18 February 2025, the Applicant Ms Shala ("the wife") sought two outcomes. First, transfer of these property-related proceedings to Division 1 of the Federal Circuit and Family Court of Australia in the Melbourne Registry ("the transfer application"), and, in the alternative, my recusal and disqualification from presiding over the proceedings.
3. The recusal application was heard and then dismissed on 27 February 2025. The transfer application was listed for hearing on 9 April 2025 ("the transfer hearing"), at which each party represented themselves.
4. The wife indicated at the transfer hearing that, although she pressed her application for transfer to Division 1 in Melbourne, in alternative, she applied for transfer to Division 1 in Hobart.
5. The Respondent Mr Shala ("the husband") opposes transfer of the proceedings to Division 1 in Melbourne or Hobart, and says the proceedings have been ongoing for too long and need to be finalised in Division 2 of the Court.
6. I received in evidence the wife's affidavit filed 18 February 2025[2] and an email from the husband to Chambers dated 9 April 2024[3] for the purpose of considering the transfer application. I also heard oral submissions from both parties at the transfer hearing, although they strayed from what was relevant to the transfer application.

1. I have a discretionary power to transfer these proceedings to Division 1 of the Court,[4] or to another venue of Division 2.[5]
2. Whether I should transfer to Division 1 requires me to have regard to any rules of court, the resources of each division of the Court, and the interests of the administration of justice.[6]
3. The Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) identify at Rule 3.01 what non-exhaustive considerations the Court should evaluate when deciding whether to exercise the discretionary power to transfer. They are as follows:

(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Circuit and Family Court (Division 1) on one or more of the points in issue;

(b) the financial value of the claim;

(c) the complexity of the facts, legal issues, remedies and procedures involved;

(d) whether the proceeding, if transferred, is likely to be dealt with:

(i) at less cost to the parties; or

(ii) at more convenience to the parties;

(iii) earlier.

(e) the availability of a judicial officer specialising in the type of proceeding to which the application relates;

(f) the availability of particular procedures appropriate for the class of proceeding;

(g) the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns;

(h) the wishes of the parties.

1. Of these considerations, only those referred to in (a), (b), (c), (d) and (h) of Rule 3.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) are potentially relevant in this case and there is limited evidence provided by the wife and husband about those considerations.
2. The wife relies on evidence about the number of witnesses she will call and where they reside, the complexity of the issues for the Court to determine, and inferentially the length of the hearing.[7]
3. The wife's evidence fails to state that she resides in Tasmania and that all the real property subject to the proceedings, which represents the majority of the value of the parties' assets, is in Tasmania.[8]
4. The husband disputes that the wife will call the witnesses to which she refers in her affidavit and says that their evidence is irrelevant to the validity of the financial agreement(s). Further, he submits that the matter is not complex. However, it was apparent that his submissions about why the matter is not complex relied on many facts that are disputed by the wife.
5. The husband succinctly stated his grounds for opposition to transfer in writing in the email of 9 April 2025 as follows:

1. The length of time that these proceedings have taken has been very long and should be finalized immediately with that any delays the transfer of proceedings will add to the delay of decision and outcomes. 2. As [Judge Taglieri] is aware that the application was started by the [wife] in Hobart therefore I see no reasons to transfer the application to Melbourne apart from tactics of delay by the [wife]

1. All the assets in question are in Hobart and the fact of the matter is that there are all listed in these agreements

1. Neither the applicant know myself reside in Melbourne. 2. I have no tension of attending the proceedings in person whether it be it in Melbourne or in Hobart no matter where the proceedings are I will continue to appear through AVL or telephone systems. 3. My plea to the court is to continue with the proceedings being listed in Hobart and aim to finish the proceedings as soon as possible.

1. The wife seeks a final order that the assets of a company, C Pty Ltd, be deemed property of the parties.[9] Other companies in which the parties have an interest were identified during the interlocutory proceedings and are subject to restraining orders. The companies may become the subject of orders that the parties ultimately seek depending on the outcome of the discrete issue to be determined first and separately, being the validity and enforceability of a financial agreements(s) said to have been entered into on 28 February 2018 and whether they should be set aside.[10]
2. By reference to the court record, the wife has been represented by three different solicitors and she is now representing herself. Although she stated earlier in these proceedings that she intended to make application for representation under the cross-examination ban scheme,[11] that is no longer her position, and she says she will be privately represented. However, there is no evidence about when that will be so.
3. The husband was initially legally represented around the time of the interlocutory hearing in June 2023. He has been representing himself since then.
4. An order was made on 14 February 2024 pursuant to s 102NA of the Family Law Act 1975 (Cth) relating to the husband. He does not yet have a lawyer appointed under the cross-examination ban scheme and I am aware that there is a shortage of legal practitioners who are prepared to act pursuant to funding under the cross-examination ban scheme. It is impossible to say when a lawyer may be appointed to act for him.
5. The legal principles relevant the question of whether the enforceability of financial agreement(s) are not necessarily complex, [12] but as was conceded by the husband during his submissions the facts relevant to the circumstances in which the agreements were made are strongly disputed.
6. I am satisfied that this is a complex proceeding given the nature of the evidence likely to be relied upon by the parties, the allegations they make about the other, the potential number of witnesses, and the prolix history of their dispute involving disputed facts about the circumstances in which the financial agreements were made. Further, the complexity arises because of the apparent bitterness and combativeness between the parties, which is demonstrated by the way they conduct themselves in court.
7. It is also possible that the Court may have to make orders affecting companies if the orders sought by the wife are ultimately made. This is relevant to the remedy consideration in Rule 3.01(c) of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) because only Division 1 of the Court has powers in relation to matters under the Corporations Law.[13]
8. If the wife is to call the witnesses referred to in her affidavit, I accept that the hearing of the discrete question will take over one week, not even allowing for the witnesses that the husband is likely to call.
9. I do not have direct evidence about the comparative capacity of judges in each division of the Court or of Division 1 in Melbourne or Hobart to hear this matter, except that usually timeframes for hearings in Hobart are shorter based on my experience.
10. It is highly unusual to seek a transfer to the Melbourne Registry when neither party resides there, and the parties' property is mostly in Tasmania. Questions of cost and convenience do not support transfer to the Melbourne registry.
11. I generally accept the tenor of the husband's submissions at [14] of these reasons, and they weigh against transfer to the Melbourne registry.
12. The application for transfer has been made very late and the logic or bona fides of it being made is not apparent.
13. The proceedings do not obviously involve issues of general importance because the facts relating to the agreements are unique to the parties and the financial value of the parties' property appears to be relatively modest.[14]

1. Ultimately, I am persuaded to transfer the proceedings to Division 1 of the Court in Hobart because the findings and considerations discussed at [15] to [27] of these reasons plainly cause the balance of relevant considerations to weigh in favour of transfer to Division 1, but not Melbourne. I am satisfied that transfer to Division 1 in Hobart is consistent with the interests of the administration of justice.
2. Due to the volume of work in Division 2 of the Court, it has less capacity to deal with hearings that are likely to be drawn out and for which the evidence likely to be adduced is obscure, voluminous and complex as they are in these proceedings, particularly because the parties have been and continue to be self-represented.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

[1] Amended Initiating Application filed 6 March 2023; Response to Final Orders filed 1 June 2023.

[4] Section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

[5] Section 184 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

[6] Section 149(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

[7] Affidavit of the wife filed 18 February 2025 at [12] to [17].

[8] Notice of Address for Service of the wife filed 22 November 2024; Financial Statement of the wife filed 1 February 2023; Financial Statement of the husband filed 1 June 2023.

[9] Amended Initiating Application filed 29 May 2023.

[10] Order 3 of the Orders made 7 October 2024.

[11] Affidavit of the wife filed 17 February 2025 at [19].

[12] Eg Graham & Squibb [2019] FamCAFC 33.

[13] Section 1337 of the Corporations Act 2001 (Cth).

[14] Perhaps in the region of $3,000,000 based on their Financial Statements filed 1 February 2023 and 1 June 2023.