GREY & GREY AND ANOR

[2012] FamCA 1113

FAMILY COURT OF AUSTRALIA

GREY & GREY AND ANOR [2012] FamCA 1113

FAMILY LAW – Procedural – setting matter down for hearing – no party sought to be heard – directions for trial

APPLICANT: Ms Grey

RESPONDENT: Mr Grey

INTERVENER: Mr B

FILE NUMBER: DGC 1315 of 2011

DATE DELIVERED: 3 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: John Conquest Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

COUNSEL FOR THE INTERVENER: No appearance

SOLICITOR FOR THE INTERVENER: Barbayannis Lawyers

Orders

IT IS ORDERED BY THE COURT THAT:

1.This matter be fixed for final hearing before me on Monday 11 February 2013 to commence at 10.00 a.m. (estimated to take 5 days).

2.This matter be listed for mention in court before me on 22 January 2012 at 9.00 am for the purpose of checking on the readiness of the matter for the final hearing.

3.The intervener file and serve an undertaking as to disclosure by 17 December 2012 NOTING THAT the wife filed such an undertaking on 2 October 2012 and the husband filed such an undertaking on 30 July 2012 (and that the duty of a party to give to each other party in the proceedings full and frank disclosure of all information relevant to the case in a timely manner inures until judgment).

4.In anticipation of the final hearing, each party file and serve any amended application or response and all affidavit material or proofs of evidence in upon which he/she proposes to rely in support of his/her case, as follows:-

a)     The applicant wife by 17 December 2012 at 4.00 pm;

b)     The respondent husband by 18 January 2013 at 4.00 pm;

c)     The third party by 17 December 2013 at 4.00 pm.

5.By not later than 17 December 2012 each of the husband and the wife file and serve an updated financial statement.

6.Each party have leave to contact Registrars Riddiford or Sikiotis to arrange to have this matter listed for mention before me, on notice to all other parties, to seek any further directions as he/she considers are necessary to ensure that the matter is ready for trial or to narrow the issues in dispute.

7.Each party attend the final hearing in person.

8.By not later than 1 February 2013 at 4.00 pm the husband and the wife each file and serve and provide to my Associate by e-mail – … :- an outline of case which includes:-

a)      a list of documents upon which that party will rely at trial;

b)      a list which identifies the property, including equitable interests in property, of each of the husband and the wife;

c)      a list of any add-backs claimed in the proceedings and the basis upon which each add-back is claimed;

d)      a statement of whether, in the opinion of that party, it is just and equitable within the meaning of s79(2) to make an order adjusting the husband and the wife’s interests in property;

e)      if there is a concession or there is a finding that it is just and equitable within the meaning of s79(2) to make an order adjusting the interests of each of the husband and the wife in property:-

i.a summary of argument including but not limited to the following matters relating to a final alteration of property interests:-

1.the contribution based entitlement claimed, expressed as a percentage of the net value of assets -

a.as at final separation;

b.at the time of trial;

2.in dot point form the different types of contribution being financial contributions (s79(4)(a)), non-financial contributions (s79(4)(b)) and contributions to the welfare of the family (s79(4)(c)) upon which that party relies to support the contribution based entitlement for which they contend:-

a.up until final separation;

b.up until the trial;

3.any other matters relevant to a division of property  including any adjustment to the contribution-based claim (if any) expressed as a percentage of the net value of the assets divisible between the parties having regard to the factors in s79(4)(d), (e), (f) and (g);

ii.in dot point form what relevant s75(2) or other factors relied upon by that party for any adjustment;

iii.why the orders sought by that party are appropriate;

f)      a summary of any matters upon which evidence is adduced from experts and is not agreed, including but not limited to:-

i.the date and outcome of the last conference between experts;

ii.the particular matters upon which there is no agreement between experts;

iii.what the difference there would be to the final outcome in the event that one expert’s view of any particular matter is accepted over the other experts view;

g)      a summary of argument in relation to any other financial relief which is sought including child support or spousal maintenance;

h)      a minute of the orders which he / she seeks be made at the final hearing if the orders sought differ in any respect from his/her last filed application or response.

9.By way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon on 8 February 2013, the practitioner for each party provide notice in writing to his/her client of:-

a)     the actual costs incurred by the client up to and including that date;

b)     any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

d)     the costs payable for each day of the trial;

e)     the estimated length of the trial; and

f)     the date of payments made and the source of the funds for the costs paid or to be paid so that:-

i.if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

ii.if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

iiiif costs have been paid in cash, the details must identify the payer.

10.In the event that this matter resolves prior to the hearing date, the solicitors for the parties notify my Associate promptly.

11.IT IS DIRECTED that the letter from my Associate to the practitioners for the parties be marked Exhibit “A” and remain on the Court file in the correspondence.

12.IT IS DIRECTED that my Associate provide a copy of this Order and my reasons to the parties, through their practitioners, by email as soon as practicable.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing as directed or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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

FILE NUMBER: DGC 1315 of 2011

Ms Grey

Applicant

And

Mr Grey

Respondent

And

Mr B

Intervener

REASONS FOR JUDGMENT

1. When this matter was last before me on 7 November 2012 I informed the parties that time within which a final hearing of this matter could be accommodated may become available in mid-February 2013.  I did so in order that the parties could begin to ready themselves if that eventuality arose.

2. It was agreed that the matter would take not more than 5 sitting days. 

3. On 22 November 2012 a letter was sent by email by my Associate to the practitioners for each of the three parties to the proceedings. Omitting formal and irrelevant parts, the letter read:-

   NOTIFICATION OF LISTING FOR FINAL HEARING

   At the mention of this matter on 7 November 2012 her Honour indicated that the matter could be set down for final hearing in early 2013 dependent upon further setting of her calendar for that period and the possibility of another matter coming out of her list. The time in February has now become available and her Honour proposes that this matter will be set down for final hearing to commence as follows:

   Date:  Monday 11 February 2013

   Time:  10.00 AM

   Place:  305 William Street, Melbourne

   Estimated:              to take up to 5 days.

   There will need to be directions made for final hearing.  Please contact me to advise if you require the matter be listed to make further submissions as to the hearing date and/or on directions for trial.

4. There has been no request that the matter be listed for further submissions as to either the hearing date or directions for trial.  Today, I excuse the parties and their lawyers from appearing.

5. The matter can be accommodated in my list on 11 February 2013 and I will order accordingly.  I am conscious that the husband will have to travel from the Europe to Australia for the hearing so I will ensure that there is no other matter then pending before the Court which must be finalised before this matter commences on 11 February.

6. I also make orders for the filing of material, sequentially, and the filing of an outline of case document by the husband and the wife.  In formulating what is required in the Outline of Case document I have given consideration to the recent decision of the High Court in Stanford v Stanford [2012] HCA 52.

7. Whilst the parties are on notice of the hearing date, they should have details of the dates by which documents and evidence is required to be filed as soon as practicable. I will direct that this Order and these reasons be provided to them electronically.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 December 2012.

Associate:

Date:  3 December 2012