Crafter and Crafter & Ors

[2009] FamCA 1200

FAMILY COURT OF AUSTRALIA

CRAFTER & CRAFTER AND ORS [2009] FamCA 1200

FAMILY LAW – PROPERTY SETTLEMENT – interim – application by the wife seeking partial property settlement – order for the sale of certain shares and payment of sale proceeds to the wife

FAMILY LAW – PRACTICE AND PROCEDURE – continuation hearing – case management

APPLICANT: Ms Crafter

FIRST RESPONDENT: Mr Crafter

SECOND RESPONDENT: M Crafter

THIRD RESPONDENT: W Crafter

FOURTH RESPONDENT: D Pty Ltd

FIFTH RESPONDENT: P Crafter

FILE NUMBER: ADC 142 of 2007

DATE DELIVERED: 7 September 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 7 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K Tredrea

SOLICITOR FOR THE APPLICANT: Jo-Ann Milen & Associates

COUNSEL FOR THE RESPONDENT: Mr J McGinn

SOLICITOR FOR THE RESPONDENT: Lindley Solicitors

COUNSEL FOR 2^ND TO 5^TH RESPONDENTS: Mr G Stevens

SOLICITOR FOR 2^ND TO 5^TH RESPONDENTS: Stokes Legal

Orders

1. By way of partial property settlement:

   a.   that the parties do all things and sign all necessary documents required to sell the Commonwealth Bank of Australia shares, the Telstra Corporation Limited shares and the Babcock and Brown Environmental Investments Limited shares owned by the husband and the husband and the wife jointly;

   b.   that the net proceeds of sale of the said shares be paid to the wife’s solicitor’s trust account on behalf of the wife.

2. That within 5 weeks of the date hereof the husband file and serve his further affidavit of evidence in chief.

3. That the husband have leave to issue a subpoena to F Surgery requiring production of the wife’s medical records held at that surgery with such subpoena to be returnable before a Registrar at 9:30am on 13 October 2009.

4. That within 14 days of the date hereof the husband have leave to serve on the wife a requirement to answer specific questions in relation to her current partner and his financial circumstances.

5. That the Application in a Case filed by the wife on 21 July 2009 and the Response filed by the husband on 2 September 2009 be dismissed and removed from the active pending cases list.

6. That further consideration of the case be adjourned to 9:00am on 6 November 2009.

IT IS NOTED that publication of this judgment under the pseudonym Crafter & Crafter and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 142 of 2007

MS CRAFTER

Applicant

And

MR CRAFTER

First Respondent

M CRAFTER

Second Respondent

W CRAFTER

Third Respondent

D PTY LTD

Fourth Respondent

P CRAFTER

Fifth Respondent

ex tempore reasons

1. This is a continuation hearing of this matter.  I am pleased to say that it has advanced sufficiently that I can look at preparation for trial and that is what I have considered today.  Initially though I have further heard an Application in a Case filed by the wife on 21 July 2009 and seeking a partial property settlement.  That was adjourned to today to allow time to see if an agreement could be reached.  Unfortunately, no agreement could be reached and I now have before me today a response filed by the husband on 2 September 2009.

2. The response was marginally out of time.  I have read the documents and understand why.  Thus I do not propose to do anything about that or dwell on that.  I am satisfied that it is all properly before me and everyone has had ample time to consider the issues.  In any event, that application has proceeded before me today and I have heard argument about it and in the end result I have decided not to make the order sought which was for the sale of a particular piece of property. 

3. I reached that decision on the basis that there are shares which the parties have, whether they are solely owned or jointly owned, which the husband says can be sold to provide funds to the wife to at least go some way to meet her costs.  There is an issue as to what the net proceeds of the sale of the shares will be. It will be a maximum of $36,000 but it may be as low as $29,000 or $30,000.

4. In any event, that is the option that I propose to adopt at this stage, given that I was told that there was an arrangement between the wife’s solicitor and the wife about the wife’s solicitor’s costs and that what is being talked about is the counsel fees that the wife has incurred and will incur.  It is obvious on both the husband’s and the wife’s cases, that if this matter still proceeds to trial as it seems it is, they will both need further funds to meet their respective costs. 

5. Now, whether the respective solicitors and counsel are prepared to await the outcome of the matter is a matter for them.  It is not for me to require that or take it any further now but unfortunately this may not be the last such application that I hear in this case for that reason. In any event I hope sense prevails, and given that both parties are really in the same boat, namely further costs, it would be helpful if some agreement can be reached between them about it but if not, obviously I will hear any application that either party wishes to make about it in the future.

6. Further, as I have said as well the third parties are not necessarily out of this equation. The third parties want to see that all the assets in this case are maintained, but as parties, they are subject to the same principles as the husband and the wife are in terms of costs. In any event that may be for the future.  For the moment I propose to proceed on the basis that the shares will be sold and the wife will have those proceeds to meet her costs initially by way of partial property settlement. 

7. In terms of the preparation of the matter for trial all the affidavits are in save and except the husband seeks leave to file a further affidavit in relation to some particular matters raised in one or other of the affidavits of the other parties, and the husband needs to file an updated financial statement.  The husband also seeks leave to issue a subpoena and to ask certain questions of the wife and I propose to give that leave.

8. I note in terms of experts that the only expert to be called will be Mr C, and he will be available for cross-examination.  Mr Tredrea has indicated that his client certainly wants to cross-examine Mr C.  Mr McGinn’s initial position was he did not want to cross-examine Mr C but upon reflection that may change and I will proceed on the basis that Mr C will need to be available for cross-examination by both the husband and the wife.  There is also a report, a medical report, of Dr O, which is being relied upon by the wife.  She also needs to be made available for cross-examination.

9. I have also noted that with the company, N Company, it is agreed that that company does not need to be separately represented and that company will abide the event. Although I raised this issue in the early stages of this matter, given that everyone has agreed with that course, I am not going to cavil with that.

10. Given all that, in terms of the time required for the trial, obviously there are difficulties in making a precise assessment, but it may be as little as five days or it may last 10 days. Thus at this stage I am proceeding on the basis that we need 10 days for this case.  Unfortunately though, I am not in a position to list a 10 day case yet. 

11. I have indicated and I confirm it will be in the New Year, and February is a likely month but my docket does not stretch that far yet and thus the matter needs to come back before me on a continuation hearing when I will be in a position to give the parties a firm date for the commencement of the trial and also obviously check the matter and compliance and also look at the subpoena that is about to be issued and the questions that are to be put to the wife.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 September 2009.

Associate