ENSLOW & PAGE

[2012] FamCA 218

FAMILY COURT OF AUSTRALIA

ENSLOW & PAGE [2012] FamCA 218

FAMILY LAW - PROPERTY – Application filed by wife for a property settlement pursuant to the provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

FAMILY LAW - PRACTICE AND PROCEDURE – Procedural directions re appointment of single expert and medical evidence

Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

APPLICANT: Ms Enslow

RESPONDENT: Mr Page

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 487 of 2011

DATE DELIVERED: 19 March 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 19 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turnbull

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

COUNSEL FOR THE RESPONDENT: Mr Howroyd

SOLICITOR FOR THE RESPONDENT: Bennett Howroyd

Orders

1. These proceedings be adjourned for Directions Hearing before a Registrar at 9.30am on 2 May 2012.

   IT IS NOTED

2. The parties will have available on 2 May 2012:-

   (a)a minute of order and/or a list of issues for the appointment of a single expert or experts in relation to the valuation of the property of the parties;

   (b)a list of the issues in dispute;

   (c)the matter will be adjourned to a further conciliation conference once the valuations are obtained;

   (d)I have not as yet determined if this matter be transferred to the Federal Magistrates Court or remain in the Family Court.

   IT IS DIRECTED

3. Each of the parties file and serve any medical reports from treating practitioners with regard to the issues of mental health on or before 12.00 noon on 1 May 2012.

4. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 487 of 2011

Ms Enslow

Applicant

And

Mr Page

Respondent

REASONS FOR JUDGMENT

1. This is an application for a property settlement commenced by Ms Enslow on 23 June 2011 in the Family Court.  The application was served on 18 July 2011, and was returnable on 18 August 2011.  These proceedings are proceedings under the de facto provisions of the Family Law Act 1975 (Cth).

2. The respondent filed a notice of address for service on 18 August and a response to the initiating application on 6 September.  A direction was made in relation to the filing of affidavits, and the applicant filed an affidavit on 8 November 2011 and the respondent filed his affidavit today.  Both parties have now filed financial statements, albeit that the financial statement of the applicant is somewhat old at this stage.

3. The matter was referred to me on the basis that it ought to have been filed in the Federal Magistrates Court, rather than the Family Court.

1. Mr Turnbull, for the applicant, says the matter should remain in this Court on a number of bases:-

   (1)That there are significant items personally which would be better suited, having regard to the single expert rules of this court. 

   (2)That there are significant issues of fact. 

   (3)That application is supported by counsel for the respondent, who says that the matter will run for three or four days.

   (4)That there is high conflict, and that there are some mental health issues in respect of his client, although it seems that there are some issues of mental illness with regard to the respondent, although there is no evidence at this stage from medical practitioners.

2. I am not entirely convinced at this stage that this matter is one that ought to remain in this Court.  The question of the valuation of chattels is not altogether that difficult, and is undertaken in both courts from time to time.  There is high conflict and, certainly, allegations made by each of the parties, which are on their face, somewhat disturbing, but the matter will only run three to four days.

3. What I propose to do, is not transfer the matter at this stage, but not indicate that it ought not to be transferred.  I will be directing the parties to file evidence in relation to mental health issues, and in that regard, I note that counsel for the respondent is quite satisfied that his client is able to give proper instructions.

4. That the parties consider the appointment of a single expert in relation to the various items of realty and chattels.  I will send the matter back to a registrar for mention in about six week’s time.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 19 March 2012.

Associate:     

Date:              19 March 2012