Finlay and Finlay
[2008] FMCAfam 78
•31 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FINLAY & FINLAY | [2008] FMCAfam 78 |
| FAMILY LAW – Property – wife discontinued her application – husband seeks to proceed on his cross-application – joint valuation ordered. |
| Family Law Act 1975 |
| Applicant: | MS FINLAY |
| Respondent: | MR FINLAY |
| File number: | ADC 2293 of 2007 |
| Judgment of: | Kelly FM |
| Hearing date: | 31 January 2008 |
| Date of last submission: | 31 January 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 31 January 2008 |
REPRESENTATION
| Applicant in Person: | No appearance |
| Counsel for the Respondent: | Ms D.E. Morosini |
| Solicitors for the Respondent: | Di Morosini and Co |
ORDERS
NOTING the wife appears to have discontinued her application and the husband seeks to proceed on his cross-application for property settlement.
That the parties do all things necessary to jointly instruct Mr W to undertake valuations of the parties’ real estate interests, including any value attributed to leasehold interests, farming plant and equipment.
That the parties share equally in the costs associated with the valuation PROVIDED that the husband meet the costs incurred in the first instance, with the wife’s contribution to be adjusted at the time of final settlement.
That the parties jointly sign a letter of instructions to Mr W PROVIDED that if the wife fails to sign such letter within fourteen (14) days of same being provided to her that it shall be sufficient for the letter of instructions to be forwarded to Mr W signed only by the solicitors for the husband.
The matter is adjourned to 22 May 2008 at 9.30am for mention.
Liberty to the wife to participate by telephone link.
IT IS NOTED that publication of this judgment under the pseudonym Finlay & Finlay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2293 of 2007
| MS FINLAY |
Applicant
And
| MR FINLAY |
Respondent
REASONS FOR JUDGMENT
In this matter I note that the court has endeavoured to telephone the wife on two or three occasions across this morning between 10.00 am and 10.40am. The wife’s phone has been engaged.
The wife filed an Application for property settlement on 7 May 2007. The husband filed his Response on 28 May 2007. On 4 September 2007 the wife’s solicitors filed a Notice of Ceasing to Act. On 24 September 2007 the wife filed a Notice of Address for Service, on which she has written “I withdraw all proceedings with the Court re settlement”.
The wife has made it clear in her subsequent communication with Ms Morosini and with the Court that she wishes to discontinue her proceedings and does not want any further court intervention. However, Ms Morosini's client, the husband, still wishes to proceed with his response, seeking orders for property settlement.
The wife did attend by telephone for the last directions hearing on 5 November 2007. The attitude of both parties was clear at that time. She is aware of today's hearing and was given liberty to participate by telephone link, therefore she is aware that the Court would be calling in to contact her today.
Notwithstanding the wife is choosing not to participate or is not available for today's hearing, I am satisfied it is appropriate to proceed to make the orders sought by the husband to enable valuation evidence to be obtained. One way or another, the issue of a property settlement between these separated parties is still before the Court by virtue of the husband’s Response and it needs to be resolved. Valuation evidence is a necessary step in that regard and should be attended to.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Kelly FM.
Associate:
Date: 8 February 2008
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