GAYNER & GAYNER

[2020] FamCA 265

FAMILY COURT OF AUSTRALIA

GAYNER & GAYNER [2020] FamCA 265

FAMILY LAW – FINANCIAL – where parties agree that the financial situation will change as a consequence of COVID-19 – where both parties seek to vacate the trial date and have the matter mentioned six months hence – matter adjourned for mention.

FAMILY LAW – PRACTICE AND PROCEDURE – where practitioners agree that, absent the uncertain economic climate, the final hearing could have proceeded appropriately by electronic means.

APPLICANT: Ms Gayner

RESPONDENT: Mr Gayner

FILE NUMBER: MLC 1937 of 2019

DATE DELIVERED: 1 April 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT: Mr Glezarkos

SOLICITOR FOR THE RESPONDENT: CE Family Lawyers

Orders

1. The final hearing set down for 15 to 19 June 2020 be and is hereby vacated.

2. This matter be adjourned for mention before me on 10 September 2020 at 9.00 am.

3. Liberty to apply is reserved to the solicitors who may contact my Associate – ...

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gayner & Gayner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1937 of 2019

Ms Gayner

Applicant

And

Mr Gayner

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me having been to a mediation convened by Mr O’Shannessy SC on 30 March 2020.  The matter failed to resolve. 

2. Broadly speaking, there are four categories of assets in this matter:

   a)Property of which the parties or either of them are the registered proprietors, with an aggregate value of approximately $1.15 million;

   b)Superannuation assets in self-managed funds with a value of approximately $1.16 million;

   c)Fractional interests, that is, interests in real property which is shared with other persons, and the relevant one third share in that property is worth approximately $800,000;

   d)Finally, there is a business in regional Victoria which is a family-run operation.   

3. The value of the regional business is contentious.

4. When the matter was before me in December 2019, the husband said he was on the brink of having to close certain regional businesses.  It now transpires that with the COVID-19 pandemic, he has closed three of the four businesses that were operating.  The valuation completed by D Company, as the single expert witness, through Mr B, previously put the value of the husband’s share in the business entity at something in the vicinity of $1.94 million as at 30 June 2019.  Now, not only have the entities reduced, but the performance of the remaining entity is not looking good (so the husband says) and it must be conceded is operating in uncertain times. 

5. The husband has retained Mr C as an expert other than the jointly retained single expert witness.  The husband does not, at this stage, seek leave to adduce evidence from other than a single expert witness.  However, I am informed that there is a significant difference between the husband’s expert, Mr C, and Mr B, who is the single expert on the value of the remaining paper.

6. The parties have sought that this matter be adjourned.  The legal representatives conceded that it would have been a matter which could have been run remotely and electronically through the Court’s Microsoft Teams platform. However, the parties and their practitioners are ad idem about the pandemic making the business environment so uncertain that it would not be safe or fair for me to make a determination at this time or for at least the next six months or so.  Accordingly, by consent, I adjourn this proceeding to 10 September 2020 for review.

7. There is an issue of the wife’s ongoing spousal maintenance entitlement.  It is not an issue on which either party moves today.  However, it is something that, absent agreement, may need to be re-agitated before the final hearing.  Today the husband is uncertain of what his income will be under the Government’s recently announced “Job Keeper Scheme”.

8. Previously the husband wanted to run an application to reduce the wife’s periodic entitlement to maintenance or other payments.  I decided that it was not timely for him to do so because he was not prepared and a mediation and the final hearing were on the horizon.  Last year I made certain comments predicated on both the mediation and final hearing being available in the near future.  This was a comment to the effect that the husband could borrow to pay the interim spousal support and seek an adjustment or a retrospective variation of that liability at the trial.  Now, the final hearing is vacated and the mediation has come and gone. 

9. I am informed that the practitioners will continue discussion in relation to interim spousal support.  I wish to make clear, however, that I would not necessarily be of the view that going forward the husband could be required to borrow to meet spousal maintenance entitlements in the current uncertain economic climate and with the final determination of the parties’ respective financial applications now having been delayed indefinitely.

10. If practitioners want a date for an interim hearing, they should send the documents into the case co-ordinator by email and copy my associate, Ms F.  For case management purposes, the mention on 10 September 2020 is for review, not for hearing.  If the Court can assist with directions in the meantime, they should contact Ms F.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 April 2020.

Associate: 

Date:  22 April 2020