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

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

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.
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.
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flora and Flora

Details

AGLC: Flora and Flora [2012] FamCA 493
Case: [2012] FamCA 493
Decision Date: 27 June 2012

CaseChat Overview and Summary

In *Flora and Flora*, Watts J made orders concerning the procedural steps required for the parties to prepare for mediation and a potential final hearing. The dispute involved financial matters arising from the parties' relationship.

The court was required to determine the necessary steps for the parties to gather evidence and engage in a structured dispute resolution process. This included the exchange of financial information, obtaining property valuations, and preparing detailed outlines of their respective cases for mediation. The court also addressed the appointment of a family dispute resolution practitioner and the associated costs.

Watts J ordered both parties to file and serve affidavits detailing their employment history, current earning capacity, and efforts to obtain employment since separation. The parties were also directed to attend mediation facilitated by a practitioner nominated by the Law Society of NSW. Crucially, mediation was contingent upon the parties complying with the evidence-gathering orders, obtaining a specific property valuation, and receiving an updated report from a Mr M. Prior to mediation, each party was to provide the other and the mediator with an Outline of Case Document, detailing their contentions regarding contributions, any s 75(2) adjustments sought, and draft orders. The husband was ordered to pay the initial costs and administrative fees for the mediation. The wife's oral application pursuant to s 13C(4) of the *Family Law Act 1975* (Cth) was dismissed. If the matter did not resolve at mediation, either party had liberty to relist the matter for further directions for a final hearing.

Orders

Orders of the court

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.

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.

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.

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.

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.

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.

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:

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.

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

10.

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.

11.

The DRLO inform the Court of the date of mediation.

IT IS FURTHER ORDERED THAT:

12.

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

13.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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