ALLAN & ALLAN
[2011] FMCAfam 704
•22 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALLAN & ALLAN | [2011] FMCAfam 704 |
| FAMILY LAW – Property. FAMILY LAW – Costs. |
| Family Law Act 1975, s.79 |
| Applicant: | MR ALLAN |
| Respondent: | MS ALLAN |
| File Number: | SYC 3419 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 June 2011 |
| Date of Last Submission: | 22 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Johnston |
| Solicitors for the Applicant: | Johnston Vaughan Solicitors |
| Counsel for the Respondent: | Mr Ladopoulos |
| Solicitors for the Respondent: | Theodore Solomon & Co |
ORDERS
The Application is adjourned to 31 August 2011 for further mention at 10:00 am
The Respondent is to pay the Applicant’s costs thrown away as a result of the adjournment in the sum of $3,000.00.
IT IS NOTED that publication of this judgment under the pseudonym Allan & Allan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3419 of 2010
| MR ALLAN |
Applicant
And
| MS ALLAN |
Respondent
REASONS FOR JUDGMENT
There are two applications brought by the Applicant Husband. One is for exclusive occupation of the former matrimonial home; the other is for an order for costs.
The evidence appears to me that the Applicant has not lived in the former matrimonial home since 7th December 2009. There have certainly been apprehended violence order proceedings in the Local Court, and on the most recent occasion, an application was dismissed without admission by the defendant, being the Applicant in this case, to give certain consents, and certain undertakings, including not to enter the property except in the company of police or in accordance with an order or direction of the Family Court, or meaning, in my belief, this Court exercising its jurisdiction under the Family Law Act in accordance with a written agreement between the parties. That would appear to be in force until this Court makes final orders.
On the Applicant’s evidence, he wants to get into the property to do it up for sale at the best possible price. The Court must consider the balance of convenience; if the Applicant’s application is granted, then it would follow that the Respondent would have to move out.
The Applicant deposes in his affidavit of 17th August 2010 at paragraph [19]:
The situation is that I am 70 years old, and I would like to move on with my life. The wife is also of old age and ill health. I am also of ill health. I would like to be given the opportunity to sell my home so that I can have the ability to buy my own apartment, and I am of an age where I do not want to be involved in litigation too long because of my advanced years.
He goes on to say in paragraph [20]:
I also need the opportunity to go into the property once the property is placed on the market in order to prepare the property internally so that any patch up jobs or painting work and any furniture removal or any other relevant matter needs to be addressed so that the property can be allowed to be sold, because in its current state of repair, it has not been cleaned and not looked after, and it will have an adverse impact on the sale price.
In my view, the fate of the former matrimonial home is essentially a matter for the final hearing, and whilst I am conscious of the fact that the Applicant is living in an apartment where he is less than comfortable, and there is certainly evidence that he suffers from ill health, the fact is that on his own evidence, the Applicant quite properly concedes that the Respondent is suffering from ill health as well.
I am not satisfied that the balance of convenience justifies an order for exclusive occupation in these circumstances in favour of the Applicant, and that application is therefore refused.
There is, however, an application for costs, and that is on the basis that the hearing of the matter has been adjourned because the Respondent has not prepared the case in such a way that the case can properly proceed.
In reply, it is submitted that the fault is not all one way but that the Applicant too has not prepared the case as well as he might. Whilst there is some force in that, I am firmly of the belief that the bulk of the fault is on the Respondent’s side and that it is the Respondent who has not assisted to a great extent in getting this matter ready for hearing, and the issue of valuations is one that is very much in point.
The evidence about the beneficial ownership of the mosque building is a matter, in my view, that can be resolved at the final hearing. A valuation of the former matrimonial home, to my mind, is vital, and whilst there has, I am told, been some agreement, I consider that there needs to be - if there is not agreement, a memorandum setting out that a valuation by a single expert is to take place, naming the single expert and requiring each party to cooperate with the single expert valuer, whoever he or she may be, in order that that valuation may be prepared.
It does not appear to me that it would be beneficial for the Applicant to accompany the valuer upon any inspection, much as he might like it, and I would not be making an order to that effect, and without an order the Applicant would otherwise be in breach of the undertaking given to the Local Court. The question of the valuation of real estate in Bosnia is one which to my mind can be resolved by the filing and the serving of an affidavit to which the appropriate documents are annexed and of course translated into the English language.
In my view, this is a matter where the Court should make an order for costs in favour of the Applicant. I am of the view, however, that it would be better and to do justice between the parties for the Court to make a fixed costs order. I agree that it is not entirely one-sided, but as I said, the bulk of the costs or the bulk of the dereliction of duty perhaps is on the part of the Respondent.
In my view, the sum of $3,000.00 is appropriate, which I am prepared to accept is considerably less than the solicitor-client costs that the Applicant would have to meet.
What needs to be done is for counsel and their instructors to prepare a minute of orders setting out the steps to be taken to file at the Court the appropriate valuations of all the items that are in dispute. I will allow time for that to be done this afternoon. Once I have made those orders, and there will need to be an accurate estimate of the time that will be taken, the matter will be brought back to Court for mention before me. Once I am satisfied that the matter is ready to be listed for hearing and I am given an accurate account of the length of time that will be needed, including the number of witnesses required for cross-examination, then and only then will I allocate hearing dates. I will allocate sufficient days for the matter to be heard, and I will allocate the first available convenient dates to the parties.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM.
Date: 14 July 2011
0
1