Anolick and Anolick

[2018] FamCA 321

FAMILY COURT OF AUSTRALIA

ANOLICK & ANOLICK [2018] FamCA 321

FAMILY LAW – PROPERTY – Interim Application – Application for adjournment of application in a case – refused.

APPLICANT: Mr Anolick

RESPONDENT: Ms Anolick

INDEPENDENT CHILDREN’S LAWYER: Mr D Piekarski

FILE NUMBER: MLC 5060 of 2012

DATE DELIVERED: 18 January 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 18 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson QC

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: Rickards Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Piekarski

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED:

1.Pursuant to Rule 15.49 of the Family Law Rules, the wife have leave to file and serve an affidavit of Mr V of V & Co Pty Ltd in relation to the value of:-

a.      R Street, Suburb S in the State of Victoria; and

b.      T Street, Suburb U in the State of Victoria;

and to rely on such evidence at trial.

2.Mr V and Mr W (of X Valuations) confer in relation to their respective views of the value of the properties referred to in paragraph 1 herein and prepare a Memorandum setting out the matters upon which they agree and disagree, and in relation to matters of disagreement, why their opinion is to be preferred.

3.The husband pay to the wife by 4.00 pm on 22 January 2018 the sum of $13,500 and the wife be responsible for meeting the expenses set out in paragraph 1(c) of the Application in a Case filed 22 December 2017.

4.The Application in a Case of the wife filed on 22 December 2017 as to maintenance and the Application in a Case filed on 13 December 2017 as to expert evidence by Mr V be otherwise dismissed.

IT IS FURTHER ORDERED BY THE COURT:

5.That there be leave to the wife to withdraw her Application in a Case filed 22 December 2017 in relation to expert evidence by Mr Y.

6.That there be no order as to costs.

IT IS DIRECTED:

7.That my reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

8.The minute of consent orders as amended be marked Exhibit “A” and remain on the Court file.

AND IT IS NOTED:

A.      That this matter remains fixed for final hearing before me on 5 March 2018.

B.The husband undertakes to continue to meet the $13,400 per month family maintenance currently paid until final orders are made in these proceedings, provided that the matter proceeds to trial in March 2018, unless otherwise released from the obligation to do so.

C.The payment referred to in paragraph 3 of this Order is in addition to the monthly payment of $13,400 monthly payment referred to in the wife’s affidavit filed 22 December 2017.

D.For case management purposes, the next court event is the listing on 29 January 2018 immediately following the private mediation to which the parties have agreed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anolick & Anolick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5060 of 2012

Mr Anolick

Applicant

And

Ms Anolick

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

1. The wife’s application in a case filed 22 December 2017 comes before me today as the only one of three applications that requires my determination. Some of those applications have already been resolved by consent. Orders have been made in terms of the minutes provided to the Court, and the minutes were marked Exhibit A. What remains is the wife’s application for leave, pursuant to rule 15.49 of the Family Law Rules to adduce evidence from an expert witness, Mr Y, of Y & Co., who is not the single expert witness already retained by the parties. These reasons are in relation to an oral application by counsel for the wife, Mr Thompson to adjourn that part of the wife’s application to a later date.

2. Mr Thompson says that there is some confusion about whether the matter was listed before me today for mention or for hearing.

3. When the matter was before me on 30 November 2017, Mr Thompson of counsel foreshadowed that his client would be seeking to adduce expert evidence other than by the single expert witness.  I did not know at the time, and it was not explained, why that had not already been done.  Nonetheless, he foreshadowed the application.  The application to which I have referred was filed on 22 December 2017.  The first order sought was “that this matter be listed as a matter of urgency”.  This matter was already been set down for final hearing before me to commence on 5 March 2018.  When the application was received in the registry on 22 December 2017, my associate saw that it was already currently listed for mention before me on 10 January 2018 at 9 am to check for compliance.  She informed the parties by email sent at 8.34 am on 22 December 2017, as follows:

   In regards to all communications received in this matter, I advise that the telephone mention currently listed for 10 January 2018 at 9.00 am will be vacated. 

   I note that a case application has been filed by the wife and listed to date of 10 January 2018.

   To enable the case application to be dealt with at the same time as checking on compliance and ensuring the matter is still on track for the mediation on 29 January 2018, and final hearing in March 2018, the matter will be listed on 17 January 2018 at 9.00 am in Court.  Parties are required to attend Court that day.

4. My chambers received the following communication from the solicitor for the wife at 9.18 am on 22 December 2017, and, omitting formal parts, I quote:

   I am not sure if you have received the details of our counsel’s availability from the case coordinator.  A list of available dates was supplied to the Court. 

   Graeme Thompson, counsel for the respondent, has been involved in this matter for some time and has the background knowledge of the application made by the wife.  He is not available until the following day. 

   Is it possible to postpone the hearing of the application to the following day, namely, 18 January 2018?

5. Notably, reference by both correspondents is to the matter being heard, and not being mentioned.  My chambers responded at 11.16 am on 22 December in the following terms, omitting formal parts:

   I acknowledge receipt of your communication, which I now copy to the other parties in reply. 

   If you are able to obtain consent from the other parties to your request, the matter will be listed on 18 January 2018, instead of 17 January 2018. 

   Please send that written consent request and it will be referred to her Honour for relisting. 

6. The relisting of the matter to today was confirmed by email sent on 10 January 2018.  The application, when filed, was not endorsed as being for mention only.  It was supported by two affidavits, one of which was sworn by the solicitor apparently with conduct of the matter.  At paragraph 15 of the solicitor’s affidavit, reference is made to the fact that counsel for the wife advises that:

   He will be on vacation from 15 December 2017 to 23 January 2018.  The Court is requested to list the wife’s application in a case taking into account these dates.

7. Most importantly, though, there is no indication anywhere that the matter is listed only for mention.  The mention which was to have occurred on 10 January was a mention for a compliance check.  The mention was consolidated into today’s hearing of the wife’s application in a case and that is what before me today.  The application in a case bears the usual reference to what must be done in relation to an application when it is received.  That is on the last page of the application and it requires any respondent to file a response with the Court and any affidavit evidence in support.  In this case, the respondent has elected not to do so; the respondent’s lack of response does not prevent the application proceeding today. 

8. A few matters emerge.  One is that hearings are not set for the convenience of counsel.  The matters raised by the solicitor for the wife border on the audacious.  That is now water under the bridge.  It should not happen again and I am pleased to see that Mr Thompson has, contrary to the earlier indication of his availability today, been able to be retained. 

9. Counsel for the wife, Mr Thompson, has made an oral application to adjourn the wife’s application to adduce evidence from Mr Y.  He concedes that the application was brought somewhat prematurely, having regard to the material in support of it.  However, it is an application that the wife brings.  It is the wife’s intention to make a proper application in the next 14 days and that is why she wants the adjournment.  So whilst Mr Thompson frames this as an application for an adjournment, he will not come back to court with the same application as is before me today. What he really seeks is an opportunity to bring further evidence for this application.  In my view, that is not appropriate.  He can prosecute the application which is before the Court now. I note that this date was allocated, as the wife’s request, urgently.  The application for the adjournment is refused. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 18 January 2018.

Associate: 

Date:  14 May 2018