Frost & Fielding & Anor

[2016] FamCA 193

FAMILY COURT OF AUSTRALIA

FROST & FIELDING AND ANOR [2016] FamCA 193

FAMILY LAW – TRANSFER – Matter transferred to Newcastle Registry

Family Law Act 1975 (Cth)

Family Law Rules (2004);  r. 11.17, r. 11.18

APPLICANT: Ms Frost

FIRST RESPONDENT: Mr Fielding

SECOND RESPONDENT: Ms Fielding

FILE NUMBER: BRC 10325 of 2015

DATE DELIVERED: 29 March 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk QC

SOLICITOR FOR THE APPLICANT: Ryan Kruger Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Blithrey

SOLICITOR FOR THE RESPONDENT: Flintoff Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Ms Lyons

SOLICITOR FOR THE RESPONDENT: Stacks Law Firm

Orders

IT IS ORDERED THAT

1. These proceedings are transferred to the Newcastle Registry of the Family Court of Australia.

AND IT IS ORDERED BY WAY OF CONSENT UNTIL FURTHER ORDER THAT

1. The First Respondent shall meet all of the costs associated with his sole use and occupation of the real property at B Street, A Town (“the B Street property”), including but not limited to:

   (a)the payment of all instalments, as and when they fall due, pursuant to the registered mortgage secured against the title of the B Street property in favour of National Australia Bank Limited and indemnify the Applicant with respect to any amounts owing or outstanding with regard to same;

   (b)the First Respondent shall pay all rates, insurance and other outgoings and maintenance in respect to the property and indemnify the Applicant with respect to any amounts owing or outstanding in regard to same.

Appointment of Single Expert

1. Unless the parties are able to agree as to the value of the interest of either the Applicant or Respondents in any company or trust, including but not limited to:

   (a)Fielding Investments Pty Ltd;

   (b)C Trust;

   (c)Fielding A Town Pty Ltd;

   (d)Fielding Pty Ltd;

   (e)D Pty Ltd;

   (f)any entities owned/controlled by the Second Respondent,

   the parties shall jointly instruct Ms E to value the said interest.

2. Ms E shall be deemed to have been appointed as a Court expert in the matter pursuant to Rule 15.44 of the Family Law Rules 2004.

3. The Court expert shall be provided with a joint letter of instruction, including any instructions that may be given by the Court, but if the parties are unable to agree or for any reason the joint instructions cannot be obtained then they shall each provide a letter of instruction to the Court expert within 14 days of the appointment.  The parties shall advise the Court expert of the date before which the report is required.

4. The costs of the Court expert are to be paid equally by the three parties.

5. Where any party corresponds or communicates with the expert, such correspondence or minute of communication is to be copied by that party to the other parties.  Where any communication, by correspondence or otherwise, is received by any party from the expert, then that party shall provide a copy to each other party of any such correspondence or minute of such communication. 

Valuation of Real Property

1. Unless the parties are able to agree as to the value of the interest of either the Applicant or the Respondents in any real property, including but not limited to:

   (a)1 F Street, G Town, New South Wales;

   (b)2 F Street, G Town, New South Wales;

   (c)H Street, Suburb I, Victoria;

   (d)B Street, A Town, Victoria;

   (e)J Street, A Town, Victoria;

   (f)1 L Street, A Town, Victoria;

   (g)2 L Street, A Town, Victoria;

   (h)1 M Street, A Town, Victoria;

   (i)2 M Street, A Town, Victoria;

   (j)any real property owned by the Second Respondent or by entities owned/controlled by her,

   the parties’ shall jointly instruct either N Real Estate or O Pty Ltd to provide a quote to value said interests and the parties shall accept the lower quote.

2. The expert appointed shall be deemed to have been appointed as a Court expert in the matter pursuant to Rule 15.44 of the Family Law Rules 2004.

3. The Court expert(s) shall be provided with a joint letter of instruction, including any instructions that may be given by the Court, but if the parties are unable to agree or for any reason the joint instructions cannot be obtained then they shall each provide a letter of instruction to the Court expert(s) within 14 days of the appointment.  The parties shall advise the Court expert(s) of the date before which the report is required.

4. The costs of the Court expert(s) are to be paid equally by the three parties.

5. Where any party corresponds or communications with the expert(s), such correspondence or minute of communication is to be copied by that party to the other parties.  Where any communication, by correspondence or otherwise, is received by any party from the expert, then that party shall provide a copy to the other parties of any such correspondence or minute of such communication.

Disclosure

1. On or before 30 April 2016, each party provide to the other a copy of all documents in their power, possession or control that they are required to disclosure pursuant to Rule 13.04 of the Family Law Rules 2004.

2. The First and Second Respondents take all steps necessary to have the Financial Statements and Taxation Returns for the year ending 30 June 2015 prepared and provided to the Applicant on or before 30 April 2016 for each of the following entities:-

   (a)L R Fielding Pty Ltd;

   (b)C Trust;

   (c)Fielding Investments Pty Ltd;

   (d)Fielding A Town Pty Ltd;

   (e)D Pty Ltd; and

   (f)any entities owned or controlled by the Second Respondent.

3. The First Respondent shall specifically provide to the Applicant all documents in his power, possession or control that relate to the investments made by the First Respondent in the company Energreen and other investment projects and ventures in the energy sector or otherwise in which the First Respondent invested throughout the course of the relationship.

Mediation

1. The mediation shall be convened before the Honourable Stephen O’Ryan QC on or before 18 July 2016.

2. The costs of the mediation are to be paid equally by each of three parties.

Partial Property Order

1. Pursuant to sections 90SS(1)(h) and 90SM of the Family Law Act 1975 (Cth) the First Respondent or an entity he controls, pay directly to the Ryan Kruger Lawyers Trust Account the sum of $140,000.00 with the sum of $100,000.00 on or before 24 May 2016 and the balance of $40,000.00 on or before 21 June 2016.

2. All outstanding interim Applications are dismissed.

AND IT IS FURTHER ORDERED THAT

1. The original Minute of Order signed by the parties be placed and kept on the Court file.

NOTATION

A.The parties will use their best endeavours to ensure that mediation occurs by 18 July 2016 and are aware that from 18 July 2016 to 27 August 2016 the First Respondent is out of the country.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frost & Fielding and Anor 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 BRISBANE

FILE NUMBER: BRC 10325 of 2015

Ms Frost

Applicant

And

Mr Fielding

First Respondent

And

Ms Fielding

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I intend to make an order transferring the proceedings to the Newcastle Registry of this Court. 

2. In arriving at this decision I have had regard to the contents of Rule 11.18 of the Family Law Rules (2004). I take into account, in particular, the availability of a hearing - not only in relation to an interim hearing but, also, a final hearing – that, on the information provided to me this morning as a consequence of inquiries made by the Registry Manager at my request, certainly suggests the matter would be able to be finalised by the end of this year if it were transferred.

3. I am confident in concluding - given that there are about 90 matters ahead of it here already (leaving aside any reference to the further about 120 matters) that this would simply not be possible if it remains here. 

4. The parties would not see a final hearing, I suspect, before probably the end of next year – or, at least, mid to the end of next year - even with the appointment of Carew J to this Registry: bearing in mind, of course, that, whilst that was very welcome, Kent J has recently taken up sitting full-time in the appeal division.  So, in a sense, we have gained one and lost one, as it were, in so far as the trial division of the Court based in Brisbane is concerned.

5. I take into account, also, that there does not appear to be any property situated in Queensland owned by any party to the proceedings.  The property of the parties on the evidence before me is located in Victoria (in either Melbourne and/or in the town or city in which Mr Fielding lives), in G Town and in P Town. 

6. I take into account that it appears on the evidence that the accountant who has historically been engaged to support and/or manage and/or provide accountancy services for the corporate interests the subject of the proceedings is, it seems, located in G Town.  It seems the parties have sensibly reached agreement in relation to the person to be appointed to value the corporate interests the subject of the proceedings also - that person, too, is, it seems, located in G Town.

7. I take into account the availability of flights between Brisbane and Newcastle. It seems to me that a transfer of the proceedings to that Registry would not necessitate in any way (or for any reason) Ms Frost returning to live in G Town or anywhere else other than Brisbane if that is where she wishes to reside, nor would it necessitate a change of legal representation. 

8. Of course, I take into account that there may well be some additional costs in relation to the continuation of her legal representatives (given that they are based in Brisbane) but I take into account, also, the costs associated for each of the two Respondents who have engaged legal representatives either based in G Town, or, I think, at one point, in Victoria.  So, there are countervailing arguments in relation to that.

9. I take into account, of course, and apply the comments (helpfully referred to in the Outline) made by Boland J in Sheen & Paolo (2007) FamCA - where her Honour was sitting a single judge of the Full Court - and take into account that, of course, it is necessary to consider, weigh and balance those matters prescribed by the Rules. 

10. I consider that, whilst there is evidence in the report for Ryan Kruger Lawyers prepared by Dr Q (which is exhibited and is Annexure “SRF11” to the affidavit of Ms Frost filed 24 March 2016) that there is a necessity for Ms Frost to continue to receive social support – and the importance for her and her functioning of the ability to obtain that social support from members of her family who are located in Brisbane - it does not follow, it seems to me, that an order transferring the proceedings to the Newcastle Registry would require any change to Ms Frost’s current living circumstances or for the mechanism by which she has determined she is best able to access that support.

11. I also take into account that Dr Q first met Ms Frost on 10 April 2015 and next saw her again on 10 March 2016.  Given the contents of his report, I can only suspect she may well have taken advantage of supports from others during that intervening period. 

12. Given the contents of Dr Q’s report, the importance to Ms Frost of support and Dr Q’s diagnosis of her as currently suffering from a moderately severe reactive major depressive disorder, I am confident in concluding that a finalisation of litigation in the Court would, more likely than not, assist in her recovery from that disorder.  I am also quite confident in concluding that a likely continuation of proceedings - as would be necessitated and a matter of reality if the matter remained to be heard from this Registry - could not be thought to be beneficial for her.

13. I consider, therefore, it is more likely than not that a speedier resolution of the litigation is more likely to do more good than the likely longer process if the matter remained, as I have said, based out of this Registry. 

14. I take into account the submissions made by Mr Kirk QC on behalf of Ms Frost in opposing the application for transfer.  In particular, I certainly take into account the very valid submissions he made in relation to the costs which may be lost if certain interlocutory and/or interim aspects of the proceeding cannot be dealt with today.  But, as I have already said during the course of our discourse, it is my intention to attempt to resolve as many of those aspects of the interim applications as possible today (taking into account the length of time likely to be involved in that process and/or the other obligations I have to other matters listed before me today).  So, it is certainly not my intention to transfer the matter without attempting to address as many of those matters as can reasonably be addressed today.

15. I also take into account the information provided to me that, if an order for transfer were made today, any outstanding matters of an interim or interlocutory nature are likely to be able to be accommodated in a listing within the judicial duty list (however described) before judges based in the Newcastle Registry in early to mid-June of this year. 

16. I also take into account that, depending upon the attitudes taken by the parties to arriving at a sensible resolution of matters easily capable of the same, it may have been - in any event - that some aspects of the large number of interim orders sought may not have been able, in any event, to have been determined within the two hour timeframe prescribed for matters listed in the judicial duty list. So, in that sense, there was always, I suspect, the possibility that, absent sense on the part of the parties, some issues may not have been able to be resolved and there would, in any event, have been a necessity for a further interim hearing with its attendant costs.

17. I take into account that, given the locations of the property and the locations of at least two expert witnesses (about whom I am now aware) such location is another factor that favours and persuades of the decision to transfer the proceedings to the Newcastle Registry. 

18. I consider it clear the matter is likely to be able to be dealt with on a final basis much sooner in Newcastle than in Brisbane.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 March 2016.

Associate:                 

Date:    29 March 2016