Claridge and Claridge

[2007] FamCA 409

FAMILY COURT OF AUSTRALIA

CLARIDGE & CLARIDGE [2007] FamCA 409

FAMILY LAW - PROPERTY - Adjourn proceedings for interim financial relief and for sole use and occupation of a property – Orders made for disbursement of some funds but no other determination of the matter on its merits

Family Law Act 1975
Crime (Family Violence) Act 1987

APPLICANT: Mr Claridge

RESPONDENT: Mrs Claridge

FILE NUMBER: MLC 648 of 2007

DATE DELIVERED: 30 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.R. Atkinson

SOLICITOR FOR THE APPLICANT: Meerkin & Apel

COUNSEL FOR THE RESPONDENT: Mr D.E. Whitchurch

SOLICITOR FOR THE RESPONDENT: Dimitra Iatrou & Associates

Orders

1. That the further hearing of the Husband’s application in a case filed on 19 January 2007 be adjourned and the Wife’s response to an application in a case filed on 23 February 2007 to 26 June 2007 at 10am as a matter estimated to take up to half a day.

2. That each party do all acts and things necessary by way providing documents and information to facilitate a report being prepared by Mr W of M Company or such other accountant as may be agreed between the parties by not later than 14 June 2007 such report to be funded pursuant to paragraph 5(e) of this Order and be as to the value of the Husband’s business interests (operated as D Pty Ltd and P Pty Ltd) and the Husband’s income stream.

3. That the parties and their legal practitioners attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Melbourne Registry on 19 June 2007 at 2:15pm to be conducted by Registrar Riddiford.

4. That the parties provide to Registrar Riddiford prior to 19 June 2007 a copy of the single expert report provided for in paragraph 2 of this Order.

5. That the parties do all acts and things necessary to cause the following liabilities or payments to be made from the funds currently invested on their behalf in interest bearing trust deposit under the control of Meerkin & Apel Solicitors of South Yarra:-

   (a)The taxation liability together with interest thereon owing by P Pty Ltd which stood at $53,257.25 as at 1 February 2007 without taking into account input credits;

   (b)The borrowings in respect of the K investment owing to ANZ Bank in the sum of approximately $17,000.00;

   (c)The sum of $30,000.00 to ANZ Bank as prepayment of instalments on the mortgage affecting the property at X;

   (d)Land tax and rates owing in respect of the property at B as invoiced with such invoices being presented to the proper officer of Meerkin & Apel Solicitors and a copy sent to the party not producing same;

   (e)$20,000.00 or such other sum as may be agreed between the parties (and that agreement evidenced in writing) for the cost a single expert’s report of the value as to the Husband’s business and activities including the Husband’s income, the business operating as D Pty Ltd and P Pty Ltd;

   (f)such other liabilities as may be agreed between the parties from time to time to be paid.

6. That each party be and is hereby restrained from causing any draw downs to be made in relation to the mortgage facility over the X property and each party do all acts and things necessary for the payment of $30,000.00 provided for in the previous paragraph of this Order to be applied as periodic instalments due from time to time and not as a reduction of capital.

7. Each party must exchange at least 14 days before the Conciliation Conference 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.

8. That each party exchange a market appraisal or valuation of any asset in dispute no later than 14 days before the conciliation conference.

9. That there be liberty to apply.

10. That the Wife have leave to file the affidavit sworn by her on 27 April 2007.

11. That both parties file and serve any further affidavit material upon which they seek to rely in relation to the determination of interim issues by not later than 12 noon Monday 18 June 2007 and at the same time deliver an extra copy of any such material to the Registrar’s Section of the Court so that it will be available to Registrar Riddiford prior to the conference on 19 June 2007.

12. That my reasons for judgment be transcribed and when transcribed the original be placed on the court file and a copy be sent to each of the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 648 of 2007

MR CLARIDGE

Applicant

And

MRS CLARIDGE

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me as the adjourned return date of the husband's application in a case filed on 19 January 2007 in which he seeks child-related orders as well as payment out of various liabilities and the right to rent out an investment property at X.  The wife has responded to that with a form 2A filed on 23 February 2007 seeking certain child-related orders and other interim financial relief including a litigation funding order. 

2. Since the proceedings were instituted the husband has changed legal practitioners from Choen Woolf & Weinberg to Meerkin & Apel.  I am advised that is in fact the same firm but there has been a merger. 

3. Since the proceedings were instituted the wife and children have taken up occupation of the X property and the husband asserts that his income has more than halved and that he has debts of a very pressing nature which require immediate repayment. 

4. Due to the realisation of assets there is some $270,000 in interest-bearing account under the control of Meerkin & Apel as stakeholders for the parties.  The matter was ready to proceed before me at approximately 4:40pm this afternoon but clearly there was insufficient time to dispose of the matter. 

5. With some reluctance, the parties agreed to some disbursements being made from the invested funds and they are reflected in orders which I will make by consent.  Those orders also provide for the funding of a single expert witness to assess the value of the husband's business interests and his income.  That may go some way to curing what I perceive, on reading the documents, to be an absence of explanation as to the reduction of the husband’s income from something like $212,000 per annum to $100,000 per annum.

6. The wife wants a sole use and occupation order in relation to the X property.  I am not prepared to grant that today.  It is a matter of some complexity.  The husband alleges that he had very frequent care of the children prior to the wife unilaterally going into the X property.  Now he says that he goes there and stays some nights with the children and the wife stays in Melbourne during those nights or some arrangement like that.  I am not prepared to press the parties into any resolution of that matter today and there is insufficient time for me to do that matter justice. 

7. Also, there were Crimes (Family Violence) Act 1987 proceedings.  No order was made but the husband gave an undertaking and I find that another complicating factor.  The issue of the wife’s sole occupancy will have to await determination in late June in the judicial duty list with any other competing financial matters. 

8. There will be a conciliation conference with Registrar Riddiford prior to that time and the parties should have the accounting evidence available for that. 

9. These comments are really more a progress report on the matter.  I do wish to make clear, however, that there has been no determination on the merits of the competing applications today and they are to be determined in late June, being the date to which the matter is adjourned. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  8 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CLARIDGE & CLARIDGE