Bradshaw and Milinovic

[2007] FamCA 464

FAMILY COURT OF AUSTRALIA

BRADSHAW & MILINOVIC [2007] FamCA 464

FAMILY LAW – PROPERTY - Straightforward property case transferred to Federal Magistrates Court where it should be allocated an early hearing of 3 days duration – Refusal to entertain interim financial issues for anything other than holding orders given indication of an early date for final trial.

Family Law Act 1975

APPLICANT: Ms Bradshaw

x

RESPONDENT: Mr Milinovic

FILE NUMBER: MLC 4643 of 2007

DATE DELIVERED: 14 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.I. Strum

SOLICITOR FOR THE APPLICANT: Caroline Counsel Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr G.P.L. Thompson

SOLICITOR FOR THE RESPONDENT: Stephen Farmer & Associates

Orders

UPON THE UNDERTAKING of the husband, Mr Milinovic, given through his Counsel that, save in the ordinary course of business and pending the resolution of property proceedings, that he will not:-

(a)       Sell or dispose of any shares or option he has in any company;

(b)       Issue further shares in any company but not limited to:-

(i)ACN … P/L;

(ii)A P/L;

(iii)SI P/L;

(iv)SA P/L;

(v)T P/L.

IT IS ORDERED:

1. That the undertaking given by the Husband this day be marked exhibit “A” and remain on the Court file.

BY CONSENT IT IS ORDERED:

1. That there be orders in terms of the Minutes of Consent Orders, paragraphs 1 to 6 signed by the parties and dated 14 May 2007 (“the Minute”).

2. That the valuers being Mr P of W Company, H Company and C Company be appointed as single expert witnesses within the meaning of the Family Law Rules 2004.

3. That the wife have leave to orally amend her application for final orders to seek a transfer to her of the husband’s interest in the former family home being the property at O in the state of Victoria AND I DIRECT that the wife file and serve an amended application in those terms by close of business on 16 May 2007.

4. That I hereby reserve for the parties and their legal practitioners the appintment of a Conciliation Conference with a Registrar of the Family Court of Australia at the Melbourne Registry on 2 July 2007 at 2:15pm.

5. Each party must exchange by 22 June 2007 the following documents if relevant and not already exchanged:

   (a)the party’s three most recent taxation returns and assessments;

   (b)any superannuation documents for each superannuation interest of the party, including:

   (i)the completed Superannuation Information Form;

   (ii)for a self-managed superannuation fund, the trust deed and the last three financial statements;

   (c)for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

   (d)for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 any Business Activity Statements for the 12 months ending immediately before the first court date;

   (e)for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s memorandum and articles of association;

   (f)for any trust, the trust deed;

   (g)for any partnership, the partnership agreement;

   (h)a market appraisal of any item of property in which a party has an interest;

   (i)All documents containing evidence about:

   (i)the financial matters mentioned in the party’s Financial Statement (Form 13) and the Conciliation Conference Document completed by the party for the conference;

   (ii)financial contributions made at the commencement of cohabitation;

   (iii)any inheritances, gifts or compensation payments received during cohabitation;

   (iv)any purchase or disposal of property in the 12 months prior to and since separation;

   (v)any increase or reduction of liabilities since separation; and

   (vi)the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value.

6. That each party exchange a market appraisal or valuation of any asset in dispute no later 22 June 2007.

7. That the husband pay to Westpac Banking Corporation the sum of $3000 to the credit of the account number … styled in the name of the husband and the wife by close of business on 17 May 2007 such payment to be taken into account by the learned trial Judge subject to the discretion of the learned trial Judge.

8. That in respect of any times that this matter remains in this Court, the operation of the Family Law Rules 2004 be suspended insofar as is necessary to enable counsel for the parties to contact and to have discussions with any single expert witness(s) in this case PROVIDING THAT counsel for the parties have first agreed with one another as to the format of such discussions.

9. That all extant applications be transferred to the Federal Magistrates Court of Australia.

10. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the Court file.

11. That all exhibits remain on the Court file. 

12. That all interim applications be dismissed. 

IT IS DIRECTED:

1. That the Minute be placed upon the Court file and marked “Exhibit B”.

2. That the solicitors for the Applicant Wife do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 2 days.

3. That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.

BY CONSENT IT IS ORDERED

1. That the parties jointly appoint Mr P of M Company to value:

   (a)       The Milinovic Family Trust;

   (b)       ACN … Pty Ltd;

   (c)       SA Pty Ltd;

   (d)       SI Pty Ltd;

   (e)       A Pty Ltd;

   (f)       T Pty Ltd;

With the costs of the valuation to be borne equally by the parties, and the expert report to be released by mid June 2007.

1. That C company be jointly appointed by the parties to value the property at O with the cost of the valuation to be equally shared by the parties.

2. That the parties jointly appoint H Companyto value:

   (a)Lamborghini Countach owned by the Husband;

   (b)Ferrari 348 Spider registration no … registered in the Husband's name;

   (c)Ferrari 360 Spider registration no … registered in the Husband's name;

   (d)Ferrari 430 Spider registration no … registered in the Husband's name;

   (e)Range Rover registration no … registered in the name of SI Pty Ltd;

   (f)Harley Davidson registration no … registered in the name of the Husband.

With the costs to be shared equally by the parties.

1. That both parties produce all documents reasonably requested by the other party, within 14 days of the receipt of the request.

2. That until further order the wife continue to have the sole use and occupation of the former matrimonial home situate at O save that:

   (a)The husband be permitted to attend upon reasonable prior notice to and with the prior written agreement of the wife;

   (b)The husband be permitted to attend at the inspection of the said property by the jointly appointed valuer pursuant to paragraph 2 hereof.

3. That the parties attend a conciliation conference at a date to be appointed after 1 July 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4643 of 2007

MS BRADSHAW

Applicant

And

MR MILINOVIC

Respondent 

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list in the context of competing applications for alteration of property interests following the breakdown of a relatively short marriage.  

2. These reasons set out the basis upon which I have ordered that the husband pay $3,000 off the mortgage affecting the former matrimonial home and transferred the proceedings to the Federal Magistrates Court where, I understand, that the matter can be accorded a final hearing of 3 days duration by Federal Magistrate Riethmuller in mid-July 2007. 

3. The parties have negotiated the basis upon which their three categories of assets can be valued. 

4. There are to be valuations conducted by appropriately qualified persons in their capacity as single expert witnesses of:-

   a)the husband's business interests;

   b)the former family home at O (where the wife still resides)

   c)the husband's expensive prestige cars. 

5. All of the valuations will be available by mid-June 2007.

6. The parties agree that this is a matter that can be contained within two to three days.  I have reserved a conciliation conference before Registrar Riddiford on 2 July 2007, and, as best I understand the matter, this can be listed before Riethmuller FM in the Federal Magistrates Court in Melbourne on 18, 19 and 20 July 2007 for a hearing over those three days.  Once His Honour is seized of the matter, it will be for His Honour to actually appoint the conciliation conference as part of that court’s preparation of the matter for final hearing. 

7. The wife makes application for the husband to pay one half of the mortgage instalments in relation to the former matrimonial home.  That would amount to about $600 per week on an ongoing basis and there are some arrears as well.  She says that she cannot afford more than half of the instalments herself.  The home is occupied by the wife at the moment.  She has sought and obtained sole use and occupation of the property.  The mortgage affecting the property secures about $743,000.00 and the parties are jointly and severally liable for that amount and the servicing of that amount.  

8. Until the end of March the husband was paying $600 a week by way of payments from the mortgage, which covered one half of the instalments, which he has now stopped.  I am satisfied that he wants to force a sale of the property.  

9. The wife seeks to retain the former matrimonial home in a final alteration of property interests.  With leave, she has amended her Form 1 application orally today to seek to do so.  Still, she says that she cannot afford to meet the payments in the interim.  It is not surprising that the husband questions the wife’s capacity to assume ownership of the home as part of an overall adjustment of property interests if she cannot manage to meet the existing mortgage commitment now.  It is a good question. 

10. These are interim proceedings and no party’s evidence has been tested in cross examination.  That said, it does not appear that the recurrent weekly salary to which the wife deposes in her financial statement, of $1,700+ per week, is reconcilable with her evidence that her salary is $133,000 per annum inclusive of a bonus.  Neither am I comfortable with the husband’s income position as be swears to it.  It is contended through his counsel that he simply does not even have $3,000 and will have to borrow it.  That appears to me to be far fetched.  No doubt his veracity in that regard will be tested at some stage. 

11. This case has all of the hallmarks of parties jockeying for tactical advantage.  The wife would be content to remain in the home, deny the husband use of his capital and have him pay $600 per week as a contribution to the mortgage.  On the other hand, the husband wishes to force a sale of the home so says that he will not pay however preposterous that may seem.  I am not critical of tactical manoeuvres.  However, today I have a necessitous parenting matter ready to return to court, it is late in the day and I do not assess this case as one which I can responsibly spend the balance of the day hearing.  

12. I will order $3,000 be paid by the husband as a finite and limited contribution to mortgage payments.  That is not to say that he may not be required to pay more whilst a decision is formulated but it will not be by me today.  These parties need a final hearing expeditiously, I do not wish to provide either party with a reason to seek to avoid or delay a final determination. 

13. I express these reasons now because the transfer of the matter to the Federal Magistrates Court and the manner in which I have required each counsel severely curtail and limit their submissions is based on my understanding that  this matter will be determined at a hearing which is to commence on 18 July 2007.  If for any reason a final hearing cannot be achieved within that time frame, then it would be appropriate the matter to be looked at again on a further interim basis. 

14. I expect that the learned Federal Magistrate will convene a telephone mention to ready this matter for trial.  Those directions cannot be given now because His Honour’s chambers are in Ballarat. 

15. In the unlikely event that this matter is transferred back to this court some stage down the track, the practitioners for the parties may contact my Associate to arrange for the matter to be listed for directions before me if they perceive that would be of some advantage to their clients.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  23 May 2007