Galeford and Galeford

[2007] FamCA 429

FAMILY COURT OF AUSTRALIA

GALEFORD & GALEFORD [2007] FamCA 429

FAMILY LAW - PROPERTY – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Mrs Galeford

RESPONDENT: Mr Galeford

FILE NUMBER: MLF 1675 of 2003

DATE DELIVERED: 2 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: On the papers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Levine

SOLICITOR FOR THE APPLICANT: Issac Brott & Co.

COUNSEL FOR THE RESPONDENT: Ms S Johns

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

Orders

1. That the Application in a Case filed 14 December 2006 on behalf of the wife be consolidated and determined with the wife’s substantive applications fixed for trial to commence at 10.00am on 5 February 2007.

2. Costs reserved.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

File number:  MLF1675 of 2003

MRS GALEFORD

Applicant

And

MR GALEFORD

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 January 2007, I made directions for the filing and service of case outline documents on behalf of the parties in relation to the substantive proceedings fixed for trial to commence on 5 February 2007.

2. In addition, I also made directions for the filing and service of documents to be relied upon by each of the parties in relation to the wife’s pending Application in a Case filed 14 December 2006 so that it may be determined by me in Chambers prior to the commencement of the trial.

3. The husband complied with the directions.  The wife’s documents were filed a day late, apparently due to an administrative difficulty in the offices of the solicitors for the wife.

The Application in a Case (Form 2) of the wife

filed 14 december 2006 (“the application”)

1. I have now had an opportunity to read the affidavits and written submissions on behalf of the parties in relation to the application.

2. The application seeks orders requiring the husband to complete and file a financial statement and orders for payment by the husband of $161,536.56 to the wife’s solicitors within seven (7) days.  In addition, costs are sought.

3. On 30 April 2006, orders for property settlement were made by consent (“the orders”).  The orders required payment by the husband to the wife by payment to her solicitor the sum of $480,000.00 by instalments.  It appears that the first two instalments were paid, however, the last three instalments were not.

4. The wife has been unsuccessful in past applications seeking orders for enforcement of the orders so far as non-compliance by the husband.  I have not been referred to the reasons for judgment on each of those occasions.  Absent submissions or documents to the contrary, it appears that leave to appeal was not sought by the wife following the dismissal of any of her relevant applications.

5. Order 2 of the orders required the wife to sign all documents required for the purpose of resigning her position as a director of companies in the G Group of Companies.  The affidavits of the wife and her solicitor sworn on 30 October 2006 and 12 December 2006 are silent in relation to the wife’s compliance with Order 2 of the orders.

6. It appears that funds are held in trust by the husband’s solicitor for the purpose of the husband complying with the orders in payment of the outstanding instalments.

7. I have not been referred to any orders that were made which stayed the operation of any of the orders.  The filing and service of the pending application of the wife for orders to set aside the orders and the financial agreement entered into between the parties does not operate as a stay.

8. The material relied upon by the wife does not demonstrate the basis for an order being made requiring the husband to file a financial statement.

Conclusion

1. I have determined to adjourn the application and consolidate it for determination as part of the proceedings for trial.

2. Briefly, my reasons are as follows.

3. Whilst there does not appear to be any substantial basis for seeking an order that the husband file a financial statement in view of the substantive applications of the wife, I have difficulty in appreciating the grounds upon which her pending applications are based as the wife through her solicitors has not complied with Order 1 made 18 January 2007 which required a case outline document to be filed and served by 4.00pm, 25 January 2007.

4. To compound the problem, leave has not been sought to extend the time for the filing and service of that document.  It may be, although unlikely, that a financial statement would be required on behalf of each of the parties.  Although, it seems curious that such a direction was not previously sought, especially as the wife has been legally represented throughout.

5. The remainder of the orders sought in the application represent another attempt under a different guise for enforcement of the orders in relation to instalments required to be paid which are as yet unpaid.  At the same time, it seems that the wife has not complied with Order 2 of the orders.

6. In the event that the wife’s substantive applications are dismissed then the question of the terms upon which the remaining instalments are required to be paid by the husband will arise for consideration.

7. Alternatively, should the wife’s substantive applications be successful then issues will arise in relation to not only payment of outstanding amounts but also perhaps additional amounts.

8. Consequently, I prefer to hear further submissions from counsel, especially after the grounds upon which the wife seeks to rely in relation to her pending substantive applications becomes clear.

9. Costs will be reserved.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  2 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GALEFORD & GALEFORD