Flora and Flora

[2012] FamCA 493

FAMILY COURT OF AUSTRALIA

FLORA & FLORA [2012] FamCA 493

FAMILY LAW – PROPERTY – the meaning of “service” in s 13C(1)(c) – whether it is appropriate to order parties to participate in a particular service

Family Law Act 1975 (Cth)
Sections 10B;  10F;  10F(a);  13A(1)(b);  13C(1);  13C(1)(b);  13C(1)(c);  13C(4)
Part IIIB

Rakete & Rakete [2012] FamCA 267

APPLICANT: Ms Flora

RESPONDENT: Mr Flora

FILE NUMBER: SYC 2833 of 2011

DATE DELIVERED: 27 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 27 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Diana Perla & Associates

SOLICITOR FOR THE RESPONDENT: Pearson Family Law

Orders

1. Within 28 days both parties file and serve an affidavit setting out evidence about:

   1.1.Their employment history since the time they commenced to live together;

   1.2.Any evidence about their current earning capacity;

   1.3.Evidence about any attempts the parties have made since separation to obtain employment.

2. The parties shall attend the Sydney Family Law Settlement Service on a date, or dates, to be fixed by the Dispute Resolution Legal Officer of the Law Society of NSW and to attend upon a family dispute resolution practitioner to carry out the mediation and conciliation in this case.

3. The mediation not take place until after the parties have:

   3.1.complied with order 1;

   3.2.received a valuation as at 1995 that has been commissioned to be provided by Mr F in respect of the property at B Street, Suburb C;

   3.3.received an updated report from Mr M in accordance with the letter of instruction that the court has been informed will be imminently sent to him by agreement.

4. Not less than 14 days before the date appointed for the mediation each party shall send to the other and to the nominated family dispute resolution practitioner an Outline of Case Document setting out:

   4.1.the party’s contention as to contribution based entitlements and the significant factors relied on,

   4.2.the party’s contention as to any adjustment sought pursuant to s 75(2) and the factors in the relevant section relied on,

   4.3.a draft of the order sought to give effect to the entitlement asserted and a schedule setting out the effect of the order sought.

5. The parties shall enter into an agreement to mediate and conciliate with the nominated family dispute resolution practitioner based upon that family dispute resolution practitioner’s standard agreement and in the event of disagreement that the parties and the family dispute resolution practitioner have liberty to apply to the court for further directions.

6. The parties shall, at least 7 days before the date appointed for the mediation and conciliation, supply to the nominated family dispute resolution practitioner and to the other party all documents requested by the family dispute resolution practitioner to be provided to the family dispute resolution practitioner and to the other party.

7. The husband shall pay to the Law Society of NSW (in respect of the appointed mediation and conciliation arranged by that service):

   7.1.prior to the nomination of the family dispute resolution practitioner pursuant to Order 9 below, the sum of $1,980 being the whole of the costs and administrative fees for the mediation (“the costs and fees”); and

   7.2.within 21 days of a receipt of a request for payment from the Law Society of NSW, the total of any additional moneys for the hire of rooms for the mediation (if applicable),

   with the trial judge to characterize the payment at hearing.

IT IS REQUESTED THAT:

1. The Associate forthwith:

   8.1.forward a copy of these orders to the nominee of the President of the Law Society of NSW (“the Law Society”) and to the Dispute Resolution Legal Officer (“the DRLO”), and

   8.2.provide to the Law Society and to the DRLO the contact details contained in the Notice of Address for Service of each party.

2. The Law Society nominate a family dispute resolution practitioner to conduct the mediation and conciliation.

3. The nominated family dispute resolution practitioner contact the parties to appoint a date, time and venue for the mediation and advise the DRLO of the same.

4. The DRLO inform the Court of the date of mediation.

IT IS FURTHER ORDERED THAT:

1. The wife’s oral application pursuant to s 13C(4) Family Law Act 1975 (Cth) be dismissed.

2. If the matter does not resolve at the conclusion of the mediation and conciliation, either party has liberty to relist the matter before me on 14 days notice for further directions for the preparation of a final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Flora & Flora 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 SYDNEY

FILE NUMBER: SYC 2833 of 2011

Ms Flora

Applicant

And

Mr Flora 

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. The parties have competing applications for alteration of property interests before the Family Court.

2. The parties have been invited to attend the Sydney Family Law Settlement Service. The husband has indicated that he wishes to avail himself of that opportunity. The wife has not agreed to attend and resists any order being made that she attend that service. In the event that the court intends to make such an order, the wife has asked that reasons be given.

POWER TO MAKE AN ORDER THAT THE PARTIES PARTICIPATE IN THE SERVICE

1. The power to make an order that the parties participate in the service is to be found in s 13C(1)(b) and (c) Family Law Act (“FLA”) which is contained in Part IIIB FLA. The question arises as to what s 13C(1)(c) FLA means. Section 13C(1) is in the following terms:

   A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:

   (a) that one or more of the parties to the proceedings attend family counselling;

   (b) that the parties to the proceedings attend family dispute resolution;

   (c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.

2. In Rakete & Rakete [2012] FamCA 267, Kent J discussed this issue by way of obiter and said at paragraph 63:

   Whilst the Court obviously has power to make Orders by the consent of the parties, including Orders as to mediation, I consider that it is far from clear that, absent the parties’ consent, the Court has power to order them to attend mediation, other than a mediation conducted by a “family dispute resolution practitioner” within the meaning of the Act.

3. In that case, his Honour was dealing with a possibility that the parties might attend an individual mediator who may or may not be a family law dispute resolution practitioner.

4. As His Honour indicated, there can be no doubt that s 13C(1)(b) FLA gives the court power, in proceedings for alteration of property, to order the parties to the proceedings to attend family dispute resolution.

5. Family dispute resolution is defined in s 10F(a) FLA as something that is conducted by a family dispute resolution practitioner.

6. At paragraph 70 of Rakete & Rakete, Kent J said:

   No specific argument was addressed to me as to whether the Court’s power to order mediation extends to a power to order the parties to attend mediation with a mediator who is not also a “family dispute resolution practitioner”. Whilst it may be arguable that private mediation is a “service” within the meaning of s 13C(1)(c), it seems to me that if mediation is “family dispute resolution” within the meaning of s 10F, it is “family dispute resolution” within the meaning of s 13(1)(b) and that “service” in sub-paragraph (c) must be something different, and is to be read and interpreted with the words, “…participate in an appropriate course, program or other service”.

7. I agree with Kent J when he said that the word “service” in s 13C(1)(c) must mean something different from what is meant by “family dispute resolution”.

8. In my view, it must follow from a reading of s 13C(1) FLA that s 13C(1)(c) is talking about something which is not necessarily “family counselling” or “family dispute resolution”, as those terms are defined in the FLA (s 10B FLA and s 10F FLA).

9. Private mediation can of course be provided both by persons qualified as family dispute resolution practitioners and those who do not have that qualification. “Family dispute resolution” can only be provided by the former.

10. His Honour said it may be arguable that private mediation that is provided by someone who was not a family dispute resolution practitioner, is a “service” within the meaning of s 13C(1)(c) FLA. This argument would interpret the word “service” as meaning an act of assistance. It is fair to say, that Kent J is of the view that an interpretation of “service” as meaning an act of assistance is “far from clear” and I would agree that that is a grey area.

11. The word “service” has a range of meanings. In the context of s 13C(1)(c) FLA, it might be argued that “service” does not simply mean an act of assistance but rather something which is a system supplying a need. This latter meaning sits more easily with the other words “course” and “program” in s 13C(1)(c) FLA. It also sits more easily with a relevant Object in Part IIIB FLA, namely s 13A(1)(b) FLA which is in the following terms:

    (b) to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed” [emphasis added]

12. In this case, what I am considering is ordering that the parties attend the Sydney Family Law Settlement Service which is a service being provided jointly by the Law Society of NSW (“the Society”) and the Bar Association of NSW (“the Association”).

13. The Society and the Association have established a mediation panel of barristers and solicitors who are experienced family law practitioners and who are willing to mediate and conciliate family law property matters. They have agreed to do so at a particular fee. The members of the panel have been selected by their respective professional bodies (the Society or the Association). The service is coordinated by the Dispute Resolution Legal Officer who is nominated by the President of the Law Society of NSW. There is a structure around what is being provided by the service. The service has at least 20 practitioners on its panel who are, in fact, qualified as family dispute resolution practitioners and the remaining practitioners are experienced family law practitioners who are also experienced in mediation.

14. The Sydney Registry of the Family Law Courts has accepted the invitation from the professional bodies to take advantage of the service being offered. Parties involved in a significant number of property matters in this court and the Federal Magistrates Court have consented to orders that they participate in the service. I find that what is being offered can be described as an “appropriate…service” within the meaning of s 13C(1)(c) FLA and accordingly there is power to order a party to that service.

15. In the event that I am wrong in making that finding, then the order in this case will be constructed so that the Dispute Resolution Legal Officer is requested to select a family dispute resolution practitioner to carry out the mediation and conciliation. As Justice Kent has pointed out, there can be no doubt there is power for the court to order parties to attend such a practitioner (s 13C(1)(b) FLA).

EXERCISE OF DISCRETION

1. In the substantive dispute, the husband seeks an overall adjustment in his favour of 75/25 percent of the current pool of assets. He makes that application on the basis that he seeks a finding that the assets should be adjusted as to 80/20 percent in his favour on the basis of the contributions and he concedes a 5 percent adjustment to the wife for s 75(2) considerations. The wife on the other hand seeks a 50/50 division of the assets overall. She asserts that the assets should be divided 70/30 in the husband’s favour based on contributions but that there should be a 20 percent adjustment in her favour for s 75(2) considerations.

2. Relevant to the s 75(2) argument, I have ordered today that the parties, within 28 days, file and serve an affidavit setting out the history of their employment during the period of time that they were together and since separation, evidence about their current earning capacity, and evidence in respect of what attempts both parties have made getting employment since the separation.

3. The parties have attended a conciliation conference with an experienced Registrar which was unsuccessful. However, at that time material that is relevant to one of the two central issues in the case was not available. That material related to the husband’s arguments about initial contributions that he made in 1995 and what allowance should be made by way of adjustment given those initial contributions. At the time of the conciliation before the Registrar, the single expert Mr M, had not provided an opinion about the value of the husband’s initial contributions. The parties tell me that they have agreed on a further letter of instruction to go to Mr M so that he might give a further opinion about the value of the husband’s initial contributions.

4. The lawyer for the wife asserted that the parties and the Registrar knew at the conciliation conference that the husband had made significant contributions initially. I am prepared to infer however that the quantification of those contributions by way of opinion from the single expert may assist in focusing both parties on what might be an appropriate weighing of those initial contributions against the other contributions that have been made since 1995.

5. The other reason that the wife did not wish to agree to any order to attend the service was because she said she had limited funds to run the litigation to the conclusion of a final hearing. In part answer to that, the husband has indicated that he will fund the cost of the parties attending the service by way of paying the fee of $1,980 on the basis that such payment by him is to be adjusted at the final hearing as the trial judge saw fit. The wife, in the alternative, makes an application under s 13C(4) FLA for the husband to pay the wife’s costs of attending the service and I shall deal with that application separately.

6. I noted in discussion with the parties that this is the type of case that is not beyond the realms of being able to be settled. If that happened, there would be a substantial saving in legal costs on both sides and the wife would save some of the money she has earmarked to conclude the litigation. In any event, it seems likely that preparing for and attending upon the Family Law Settlement Service will have the effect of significantly narrowing the areas of dispute. If the matter does not resolve, either party has liberty to relist the matter before me on 14 days notice for further directions for the preparation of a final hearing so that what areas there are left for a determination can be expeditiously resolved.  It does not seem to me that by the end of the process that I have asked the parties to embark upon, that there will be a large area of factual dispute. There may be an argument about how the law should be applied, although I think with the assistance of an experienced mediator and conciliator, that gap might be able to be closed.

7. Pursuant to s 11E FLA, I have considered seeking the advice of a family consultant about the services appropriate for the parties’ needs but given this is purely a property dispute and given the nature of the service proposed, I do not propose to seek that advice.

8. I find it is appropriate to order that the parties participate in the Family Law Settlement Service.

ORDER SOUGHT BY THE WIFE UNDER s 13C(4) FLA

1. The wife further makes an application under s 13C(4) FLA for an order that all of the wife’s costs for her attending the service, including the costs of preparation by her lawyers and attendance by her solicitor and barrister, be paid for by the husband.

2. Section 13C(4) FLA provides the court may make any other order it considers reasonably necessary or appropriate in relation to an order under s 13C(1) FLA.

3. It is an agreed fact that as a result of a prior order, the wife has $60,000 currently in her solicitor’s account earmarked for the purposes of conducting this litigation. That fund is sufficient to enable the wife to immediately engage her lawyers in any way she thinks is efficient to prepare for, attend and participate in this service. I will therefore not be making an order as sought by the wife pursuant to s 13C(4) FLA.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 27 June 2012

Associate:  

Date:  27.6.2012