Crees and Crees

[2017] FamCA 745

FAMILY COURT OF AUSTRALIA

CREES & CREES [2017] FamCA 745

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing – application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 12.10A, 12.10A(1), 12.10A(4)

APPLICANT: Ms Crees

RESPONDENT: Mr Crees

FILE NUMBER: MLC 12563 of 2016

DATE DELIVERED: 21 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

SOLICITOR FOR THE RESPONDENT: WMB Lawyers

Orders

1. The wife’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.

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 Crees & Crees 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 12563  of 2016

Ms Crees

Applicant

And

Mr Crees

Respondent

REASONS FOR JUDGMENT

1. By an Application in a Case filed 14 August 2017, pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”), the wife seeks the expedition of the listing of the final hearing in respect of the parties’ competing applications for property orders. The wife relies upon her summary of argument filed 14 August 2017. Although no submission was filed on behalf of the husband in respect of the application for priority, Notation A to the orders dated 2 August 2017 indicates the intention of the parties to jointly seek an expedited final hearing.

2. The parties commenced cohabitation in 1988 and married in 1992.  Separation occurred in 2015.  Whilst there is no agreement between the parties as to the value of their asset pool, it is substantial and based on the husband’s estimation, valued at in excess of $27 million, excluding superannuation. The parties agree that superannuation is valued at approximately $2 million.

3. The application for a priority hearing was prompted by the parties’ inability to agree on the distribution of the proceeds of sale of the former matrimonial home. The proceeds of sale are approximately $8.4 million and represents the largest single asset of the parties.  The wife seeks to retain the whole of the sale proceeds and the husband seeks that they be divided equally. The wife’s position is that the husband’s entitlements will be largely satisfied from other assets and if he were to receive half the proceeds of sale, he would retain assets significantly greater than his entitlement.

4. Pursuant to orders made by consent on 2 August 2017, the parties agree that the proceeds of sale be held in a joint interest bearing account and that each is entitled to a sum of not more than $500,000 by way of partial property settlement to be used to pay for a deposit on a principal place of residence.

5. The wife seeks an expedited final hearing as she wishes to purchase a property in which she will live with the parties’ adult children. Specifically, the wife is interested in a property she anticipates will be listed for sale in October 2017.  That property is valued at approximately $4 million and will require significant renovations.

6. As such, the wife submits that an expedited final hearing is required as she cannot commit to the purchase of a new property until she has finalised her property proceedings and has access to funds. The wife submits that currently she has no income and a limited borrowing capacity.

Legal principles

1. Pursuant to r 12.10A(1) of the Rules, a party may apply to expedite the first day before a Judge. As set out in r 12.10A:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

   (b)  whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

   (c)  whether the applicant is suffering financial hardship that:

   (i)  is not caused by the applicant; and

   (ii)  cannot be rectified by an interim order;

   (d)  whether the continuation of interim orders is causing the applicant or a child hardship;

   (e)  whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

   (f)  whether the case involves allegations of child sexual, or other, abuse; and

   (g)  whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Discussion

1. In support of her application for an expedited hearing the wife submits that:

   ·She has acted reasonably and without delay; and

   ·There is no prejudice to the husband.

2. It is not contentious and I am satisfied that the wife has acted reasonably and without delay in the conduct of the proceedings.  The parties have attended private mediation both prior to initiating proceedings and in the course of the proceedings, and there was no delay in the filing of material.  In addition, the wife’s application for an expedited hearing was made without delay and filed on 14 August 2017, less than two weeks after orders were made on 2 August 2017 which noted the parties’ intention to seek expedition.

3. The husband supports the expedition of the final hearing and there is no prejudice to him.

4. Rule 12.10A(1)(d) of the Rules provides that the Court may take into account whether there is a relevant circumstance that persuades the Court to give a case priority to the possible detriment of other cases (emphasis added).

5. The circumstances relied upon by the wife in support of her application for priority are that she cannot purchase a new property until she has available funds, she has no income and that she has a limited borrowing capacity. I am not satisfied that such circumstances justify an expedited hearing. I do not consider the inability of the wife to purchase a new property to be a “relevant circumstance” within the meaning of r 12.10A(4) of the Rules. Whilst r 12.10A(4)(c) of the Rules allows the Court to consider whether the applicant is suffering financial hardship, the term “financial hardship” implies parlous financial circumstances; that is not the circumstance that presents itself in this case.

6. The wife has access to $500,000 to pay for a deposit on a home. The husband concedes that it is appropriate that there be an equal division of the proceeds of sale of the former matrimonial home; that would provide the wife with $4.2 million with which to re-house herself and the parties’ adult children.   It is perhaps more accurate to state that she simply may not have enough funds available to her to commit to the purchase and repayments on the property she desires at this time.

7. Rule 12.10A(4) of the Rules is not exhaustive and the Court is permitted to consider other circumstances that may be relevant in determining whether to expedite the matter and as such, I am not confined to a consideration of financial hardship alone. Nonetheless, I do not consider that having insufficient funds available to purchase the property that the wife desires is a relevant circumstance that persuades me to give this case priority. Further, even were priority granted in this case, the matter would not be listed for the first day of hearing until November 2017 (or later), with a final hearing likely in early 2018. This does not resolve the wife’s issue of having access to funds to purchase a property in October 2017.

8. The Rules make it clear that the Court needs to balance whether the benefit that will be afforded to these parties by granting priority outweighs the detriment that will be caused to other cases similarly awaiting hearing. Some of the cases awaiting hearing involve serious allegations of family violence and child abuse and where it is alleged that children are at risk of harm. Against this backdrop, I cannot justify affording this case priority.

Conclusion

1. Having regard to the above matters, I will dismiss the wife’s application for an expedited hearing and the matter will remain in the list of cases awaiting allocation to a judicial docket.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 September 2017.

Associate: 

Date:  21 September 2017