Ford and Ford

[2008] FamCA 276

FAMILY COURT OF AUSTRALIA

FORD & FORD [2008] FamCA 276

FAMILY LAW – PROPERTY SETTLEMENT – Adjournment of proceedings
FAMILY LAW – PROPERTY SETTLEMENT – Superannuation
FAMILY LAW – PROPERTY – Value of Property – Expert evidence

Family law Act 1975 (Cth)

APPLICANT: Mr Ford

RESPONDENT: Mrs Ford

FILE NUMBER: MLF 3432 of 2005

DATE DELIVERED: 13 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The applicant husband appeared in person

SOLICITOR FOR THE RESPONDENT: The respondent wife appeared in person

Orders

IT IS ORDERED:

(1)That the Conciliation Conference appointed for today with Registrar Riddiford be vacated.

(2)That pursuant to Rule 12.06 the parties and their practitioners on the record (if any) attend upon Registrar Riddiford on 23 April 2008 at 9.15 a.m. for the purpose of making a genuine effort to reach agreement on matters in issue between them and, in the absence of being able to resolve all matters, to identify what issues remain unresolved and to isolate the evidence relevant to those issues and at the direction of or with the assistance of Registrar Riddiford to complete any table of assets or balance sheet.

(3)That within seven days the husband complete a Form 6 Superannuation Information Form and send it to an appropriately qualified person for the purpose of having his superannuation interest valued as at the date of his request for valuation and, if possible, as at 10 June 2008.

(4)That by not later than 14 April 2008 the husband file and serve a valuation of his superannuation interest and at the same time send a copy of that valuation to Registrar Riddiford in anticipation of the Conciliation Conference which will be convened on 23 April 2008.

(5)That compliance by the parties with paragraph 5 of the Orders made on 25 January 2008 (pursuant to which they must file an updated financial statement which is duly completed in all respects) be extended to 14 April 2008.

(6)That compliance by the husband with paragraph 6 of the Orders made on 25 January 2008 (pursuant to which he is required to file and serve certain correspondence in relation to the employment of the child S) be extended to 14 April 2008.

(7)That the requirement by the parties, but principally the wife, to obtain a valuation by an appropriately qualified person of the former matrimonial home at D be extended to 15 April 2008.

IT IS NOTED that publication of this judgment under the pseudonym Ford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3432 of 2005

MR FORD

Applicant

And

MRS FORD

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me having been listed by Registrar Riddiford who, at 9.15 am today, was to convene a Conciliation Conference with the applicant husband and the respondent wife pursuant to paragraph 4 of Orders made by me on 25 January 2008. That order provided in particular:-

   That pursuant to Rule 12.06 the parties and their practitioners on the record attend upon Registrar Riddiford on Thursday 13 March 2008 at 9:15am for the purpose of making a genuine effort to reach agreement on matters in issue between them and in the absence of being able to resolve all matters to identify what issue remain unresolved, to isolate the evidence relevant to those issues and at the direction and / or with the assistance of Registrar Riddiford, to complete any table of assets or balance sheet. 

2. Shortly after midnight this morning the court has recorded receipt of a facsimile transmission from the husband.  It is dated 12 March 2008.  I mark it Exhibit C1 and direct that it remain on the court file.  The receipt time is 12.40 am today.  Registrar Riddiford became aware of the facsimile this morning.

3. Omitting formal and irrelevant parts the letter from the husband requests an adjournment of the conference in the following terms-:

   I write to you today to request a short adjournment of proceedings in the matter of [Ford and Ford].

   This matter was set down for conciliation before Registrar Riddiford at 9 a.m. on Thursday13 March 2008.

   At this point, a number of issues from both parties are still outstanding including financial statements and a valuation on the former matrimonial home.  The above issues are yet to be attended to fully and will not be completed by the time the conference time arrives.

   I have had an open and frank discussion with the other party, [the wife], this evening. She agrees with the notion of adjourning the matter and has suggested a date of 23 April 2008 for returning or mentioning this matter again.

   I realise this is late notice and I apologise for that, but there seems to be little point in proceeding where the above matters have not been finalised.

   Should you require any further information or would like to discuss this matter further, please contact the undersigned. […] or […].”

4. The matter was last before me on 25 January 2008 when I made a number of orders to prepare the matter for the final hearing which will take place on 10 June 2008 and commence at 10.00 am.  There is an estimate that the hearing will take four days but the matter should proceed whether or not the hearing is of shorter or longer duration. As matters currently stand this case will not be adjourned simply because the matter may take more than four days.

5. The parties have been in proceedings in this court for the last three years.  Those proceedings have largely concerned children.  However the parenting issues are now resolved and what remains in issue are property matters.

6. The property matters have a moderate degree of complexity about them. Accordingly on 25 January 2008 I made Orders which addressed certain outstanding issues.

7. Pursuant to paragraph 5 of the Order each party was to file and serve an updated financial statement which was duly completed in all respects.  The wife had previously complained that the husband had left blank some parts of the form that he was required to complete. I accepted that submission as correct.  Looking at the records of the court today it is apparent that neither party has complied with the order that they file an updated financial statement by 18 February 2008, or since then.

8. I also ordered that by 8 February 2008 the husband provide certain documents in relation to the employment of the parties son S who is seventeen years old and who has resided with the husband for some time.  S is included as a dependent of the husband for the purpose of the calculation of the husband’s child support liability vis-a-vis  the children who reside in the care of the wife.  However, it was common ground that S has been independently employed for some time and in receipt of remuneration such that to take S into account as wholly dependent upon the husband may produce an unjust result.  The order which I made reads as follows:-

   6.That on or before Friday 8 February 2008 the husband file and serve (under cover of a cover sheet identifying the name and number of these proceedings) an original letter from each of the employers of the child [S] born 30 August 1990 being:-

   (a)[M Council];

   (b)      [G Company]:

   such letters to provide details of the date of [S’s] commencement in their employ, the total remuneration which [S] has been paid to date and his current income on an ongoing basis.

   It appears to be relevant for the Court be informed at the final hearing of the rate of remuneration received by and the period for which it has been paid. Compliance with this part of my order would also afford the wife an opportunity to test the information by the issuance of third party discovery or subpoena. Looking at the records of the court today, the husband did not file the required documents by 8 February 2008 and has not filed them since that day.

9. The next matter about which I made orders was the valuation of the former matrimonial home.  That is the home in which the wife and the children currently reside and which is an asset divisible between the parties in a final alteration of property interests. Orders were made at an earlier court hearing for the property to be valued and those orders were never complied with.  On 25 January 2008 I made the following orders:-

   7.That the parties do all acts and things necessary to obtain to valuation by an appropriately qualified person of the property at [D] to be completed and released to each of the parties by not later than Monday 3 March 2008.  That the valuation be conducted by an appropriately qualified person in the employ of [B] Property Valuers and the cost of the valuation be paid, at first instance, by the parties from monies held in trust for them by Mantello & Mantello Lawyers of […].” 

   and

   8.That for the purpose of putting into effect the previous order for valuation of the former matrimonial home:-

   a)The wife be solely responsible for arranging an inspection of the property by the valuer by not later than 15 February 2008; and

   b)This order stands as the parties’ joint authority to Mantello & Mantello Lawyers for the proper cost of the valuation to be dispersed to [B] Valuers upon production of the an invoice for same.

10. I am informed by Registrar Riddiford that no valuation has been conducted in relation to the home. That is also evident from the letter received at the court.  I am unclear as to why no valuation has been obtained. 

11. My recollection is that Mantello & Mantello Lawyers held monies on behalf of the parties and that the wife was asserting that the mechanism to have some of those monies released was quite complex.  What the wife told me did not make sense commercially or logically.  If a firm of solicitors holds money on trust for the parties the stake holder is required to release the funds upon the request of the parties subject only to a lien for monies owing and unpaid.  In any event the valuation of the property has not been conducted.

12. I also ordered that by 18 February 2008 the wife file and serve any amended response in which she sets out the final orders she seeks and that by 7 March 2008 the husband file and serve any amended application upon which he seeks to rely. The order of the filing of documents was reversed (so that the respondent wife had to file before the applicant husband) because it appeared sensible to me for the husband to know what the wife was seeking by way of child support relief and spousal maintenance and any superannuation splitting order prior to having to responding to it. Neither party has complied with that order.

13. As indicated the Conciliation Conference was to be convened by Registrar Riddiford at 9.15 a.m. this morning.  By not attending Court when they should have the parties have secured that cancellation of the conference without any consideration of the merits of doing so.  The issue is whether I am prepared to provide the parties with any further conference and, if so, whether it can be on the date they seek.

14. There is some facility for parties to make a request for a court event to be adjourned administratively.  This is not one such case.  The parties should have attended the conference today.  The court allocated time for these parties that could have been spent on other matters where the parties (and any practitioners involved) display some interest in having their matter determined.  In the present case there is no explanation (let alone a reasonable or acceptable explanation) as to why the very many matters that the parties were required to attend to prior to today have not been attended to at all. 

15. In the present case, there are certain matters which must be done prior to the matter being able to be determined at a final hearing.  However, the valuation of the former matrimonial home is not necessarily one of them.  The wife has protested that it is too difficult for her to make arrangements with the valuer to inspect the property.  I do not accept that is so.

16. If by 10 June 2008 at 10.00 am there is no evidence in relation to the valuation of the former matrimonial home the trial can proceed on the basis that that the former matrimonial home property will be sold and any orders I make will refer to a division of the net proceeds of sale on a proportional basis.

17. The same can not be said of the husband’s superannuation interest.  He has been a member of a public service based superannuation scheme for some time.  There is a valuation of the husband’s interest as at some date in 2007 but there is no current valuation.  I am familiar enough with superannuation schemes of this nature to know that the value to the husband will increase over time and there may in fact be significant increase in value the closer he comes to retirement age.  It will be necessary for that superannuation interest to be valued as at or in proximity to 10 June 2008.

18. It seems to me that the parties have not shown any diligence in satisfying what was required of them by the Orders of 25 January 2008.

19. I have considered whether the matter should simply be struck out of the list and not be considered again by a Judge for any purpose until the parties, or one of them, has done all that is required to get the matter ready for trial.  The consequence would be that the value of the major assets, being the family home and the husband’s superannuation interest, would be assessed at the final hearing if one ever occurs but that issues of contribution will be more complex. 

20. I will permit the parties one last opportunity of complying with Orders that I have made and of obtaining evidence of the value of the husband’s interest in his superannuation scheme.  In respect of the latter I make an order that he do so.  I will make an order now that he complete any necessary documents and be responsible for the cost of a further valuation. 

21. The husband in his letter has requested an adjournment of a conference with Registrar Riddiford to 23 April 2008.  I understand that that adjournment can be accommodated. 

22. The parties should not misconstrue the adjournment as indicating that they will be permitted to maintain proceedings in this court whilst not complying with any orders to prepare the matter adequately for trial. 

23. If by 23 April 2008 a valuation of the husband’s superannuation interest is not to hand then the matter ought to be referred to me, and I put each of the parties on notice that I will at that time give serious consideration to removing the matter from any active pending cases list not to be reinstated without them or one of them having first complied with all orders necessary to prepare the matter for trial.

24. As indicated the husband’s superannuation interest needs to be valued.  He will have to complete a Form 6 request for that to occur.  That should be sent by him to an appropriately qualified person as soon as practicable as there will be some delays in that person obtaining the relevant information from the superannuation fund.

1. I make the following orders:-

   (1)That within seven days the husband complete a Form 6 SUPERANNUATION INFORMATION FORM and send it to an appropriately qualified person for the purpose of having his superannuation interest valued as at the date of his request for valuation and if possible 10 June 2008.

   (2)That by not later than 14 April 2008 the husband file and serve a valuation of his superannuation interest and at the same time send a copy of that valuation to Registrar Riddiford in anticipation of the Conciliation Conference which will be convened on 23 April 2008.

   (3)That pursuant to Rule 12.06 the parties and their practitioners on the record (if any) attend upon Registrar Riddiford on 23 April 2008 at 9.15 a.m. for the purpose of making a genuine effort to reach agreement on matters in issue between them and, in the absence of being able to resolve all matters, to identify what issues remain unresolved and to isolate the evidence relevant to those issues and at the direction of or with the assistance of Registrar Riddiford to complete any table of assets or balance sheet.

   (4)That compliance by the parties with paragraph 5 of the Orders made by Justice Bennett on 25 January 2008 pursuant to which they must file an updated financial statement which is duly completed in all respects be extended to 14 April 2008.

   (5)That compliance by the husband with paragraph 6 of the Orders made on 25 January 2008 pursuant to which he is required to file and serve certain correspondence in relation to the employment of the child S be extended to 14 April 2008.

   (6)That the requirement by the parties, but principally the wife, to obtain an evaluation by an appropriately qualified person of the former matrimonial home at D be extended to 15 April 2008.

   (7)That in relation to the requirements in paragraphs 9 and 10 that the parties are particularising the orders that they seek on a final basis I will not extend the time for compliance at this stage.  Any such specification can follow the conference on 23 April 2008.

   (8)That the requirement that each party accord any superannuation trustee procedural fairness as set out in paragraph 11 of the Orders of 25 January 2008 remains as does the matters for consideration by Registrar Riddiford at the conference with the exception of the valuation of the husband’s superannuation interest in relation to which I have pronounced an order.

2. That in relation to the requirements in paragraphs 9 and 10 of my earlier order, which required that the parties particularise the orders that they seek on a final basis, I will not extend the time for compliance at this stage.  Any such specification can follow the Conciliation Conference on 23 April 2008 and be at the direction of Registrar Riddiford or myself.

3. The requirement that each party accord any superannuation trustee procedural fairness as set our in paragraph 11 of the Order of 25 January 2008 remains in full force and effect.  Likewise, the matters for consideration by Registrar Riddiford at the conference with the exception of the valuation of the husband’s superannuation interests in relation to which I have pronounced an order.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  4 April 2008