Georgiades and Georgiades and Ors

[2013] FamCA 1073

FAMILY COURT OF AUSTRALIA

GEORGIADES & GEORGIADES AND OTHERS [2013] FamCA 1073

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment.

APPLICANT: Ms Georgiades

RESPONDENT: Mr Georgiades

THIRD PARTIES: Mr Georgiades Snr and Mrs Georgiades Snr

FILE NUMBER: MLC 11134 of 2011

DATE DELIVERED: 23 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: MCK Legal

COUNSEL FOR THE RESPONDENT: Mr Wood

SOLICITOR FOR THE RESPONDENT: Glezer Lanteri

COUNSEL FOR THE 2^ND AND 3^RD RESPONDENTS Mr Glick SC

SOLCITOR FOR THE THIRD PARTIES: Berry Family Law

Orders

IT IS ORDERED THAT:

1.I grant the application of the third parties for an adjournment of the final hearing which was listed to commence today.

2.This matter be set down for final hearing before me to commence on 11 March 2014 at 10.00 am (estimated to take 3 – 5 days).

3.By not later than 12.00 noon on 2 December 2013 the wife file and serve contentions of fact and law relied upon in this case.

4.By not later than 12.00 noon on 16 December 2013 the husband and the third parties file and serve a response to the wife’s contentions of fact and law and, if different, his/her own different contentions of fact and law.

5.By not later than 12.00 noon on 6 January 2014 any party wishing to deliver specific questions , within the meaning of Part 13.3 of the Family Law Rules, to be answered by any other party deliver those questions to the other party and any party receiving answer to same within 21 days, on oath.

6.For the purpose of the questions provided for in this Order the parties are relieved from the operation of Rule 13.26(3)(b).

7.This matter be listed for mention before me at 9.00 am on 5 February 2014 to check on the readiness of the matter for trial and any party who seeks to amend either of their contentions of fact and law or their responses thereto provide each other party to the proceedings with adequate notice of any amendments sought.

8.There be liberty to have the matter mentioned before me for the purpose of making any interim application to ready the matter for trial and, for this purpose, to liaise with my Associate as to a date convenient to the Court and to counsel appearing.

9.The solicitors for the third party advise my Associate – email … – of the arrangements made for any mediation in this matter and, if requested to do so, my Associate list the matter for mention to follow a mediation.

10.Any mediation in this matter be conducted at the initial expense of the third parties in relation to the payment of the mediator’s fees and such expense may be the subject of applications at trial.

11.Any documents which are lodged with the subpoenaed documents clerk of this Registry of the Court pursuant to subpoena or order of this Court or by agreement between the parties be available for inspection by the parties or on their behalf and, by arrangement between legal practitioners and the subpoenaed documents clerk, be removed from the precincts of the Court solely for the purpose of photocopying.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Georgiades & Georgiades 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 MELBOURNE

FILE NUMBER: MLC 11134 of 2011

Ms Georgiades

Applicant

And

Mr Georgiades

Respondent

And

Mr and Mrs Georgiades Snr
Third Parties

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me for the first day of the final hearing, which has been now fixed for some time and counsel for the third parties, who are the parents of the husband in these proceedings, seeks an adjournment.

2. It is in every respect supported by the husband whose counsel is Mr Wood.  Ms Smallwood, of counsel, appears on behalf of the wife.  The wife opposes the adjournment.

3. This matter has been in my docket for some time and at an early point I required the applicant to put on some contents of fact and law which she did or purported to do under cover of a further amended initiating application filed on 3 April 2013.  It is now common ground that she does not adhere to those contentions of fact and law and instead would seek that I take into account some of the commentary to a case outline document filed on 14 October 2013.

4. There are some obvious differences between the two documents which I need not labour to say but for the purpose of identifying that there are material alterations in the case that the third parties and the husband must now meet.

5. Very broadly, and in relation to but one of the assets which it is said to be divisible between the husband and the wife, at least on the wife’s account, it is that the moneys which were paid to construct the dwelling on the property at 1B N Street, Suburb O, were moneys to which the husband was beneficially entitled and which the third parties had no entitlement.  Therefore, when the service providers and tradespersons were paid for the construction of that dwelling, they were paid with moneys that came from the husband and the wife, rather than moneys to which the third parties were entitled.  Ms Smallwood, in opposing the adjournment, says that a reading of the affidavit material thus far would indicate what the wife’s case is and what case they have to meet.  I am afraid that I cannot agree with that.

6. Not only is there the contention in relation to whose money paid for property in this particular case but what remedies would be attracted in the event that the wife succeeds in making some or all facts alleged by her.

7. There has been some informative and interesting discussion.  There has certainly been much said by Ms Smallwood which makes how the husband and his parents conduct their financial affairs sound quite interesting and unusual but at the end of the day I conclude that it is not fair that we proceed to a trial now.

8. I will not recite the discussion but I will order a transcript of it.  That will allow the parties, and those who advise them, to reflect on elements of the discussion without relying on particular matters which I may, or may not, give emphasis.  The respondents must know what case they have to meet and the applicant must know what evidence they are going to adduce. 

9. I will require the wife to put in contentions of fact and law, the other parties to put in a response, for there to be questions, for there to be a mention and for the trial to be now booked in for 11 March 2014, estimated to take five to six days.

10. The parties have considered a further mediation, at this stage with Mr Marantelli of counsel.  The wife, it seems, for quite good reason, asks why she should go to a mediation now.  I will leave that as a matter for her.  In the immediate term it will not involve her incurring any costs over and above being represented.  The costs of the mediation, or Mr Marantelli’s fees in particular, will be borne by the third parties at first instance.  They may seek a contribution by the wife at the trial.  I note now that she was not particularly enthusiastic about the mediation.

11. What does seem to me to be important is that I cannot imagine the trial concluding without each and every person now involved feeling somewhat scathed by what has occurred since separation and up to the conclusion of the trial.  It would not surprise me if they sought to minimise that effect and deal with the mediation as an opportunity to resolve the matter commercially.  In resolving the matter commercially, that’s going to require quite a bit of movement on the part of some parties.  That is why the parties should be assisted by a skilled mediator who is entirely conversant with the equitable and legal principles this case brings into play.

ORDERS DELIVERED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 October 2013.

Associate: 

Date:  20 January 2013