Ha and Brumage

[2016] FamCA 145

FAMILY COURT OF AUSTRALIA

HA & BRUMAGE [2016] FamCA 145

FAMILY LAW – PROCESS AND PROCEDURE – Application dismissed.

APPLICANT: Ms Ha

RESPONDENT: Mr Brumage

FILE NUMBER: SYC 4064 of 2013

DATE DELIVERED: 11 March 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9 March 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Carlisle Attorneys

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Robertson Saxton Primrose Dunn Solicitors and Attorneys

Orders

IT IS ORDERED

1. That the Application in a Case filed by the wife on 24 December 2015 and the Amended Application in a Case filed by the wife on 23 February 2016 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ha & Brumage 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 SYDNEY

FILE NUMBER: SYC 4064  of 2013

Ms Ha

Applicant

And

Mr Brumage

Respondent

REASONS FOR JUDGMENT

1. Before the Court are proceedings for property settlement between Ms Ha (“the wife”) and Mr Brumage (“the husband”). Those proceedings were listed for call-over with a view to the allocation of hearing dates on 16 March 2016. Unfortunately, the matter is not ready to be listed as no valuation evidence is available, despite directions having been made in September 2015.

2. On 11 December 2015, Orders were made following an interim application, for the payment of interim spousal maintenance for the wife. When that application was heard, the husband had not filed any material in response and had not complied with orders for discovery verified by affidavit. The judgement delivered 11 December 2015 should be read in conjunction with these reasons.

3. On 24 December 2015, the wife filed an Application in a Case seeking orders that she be appointed trustee for sale of a property owned by the husband in Suburb F, Victoria and the distribution of the net proceeds of sale, inter alia, in payment of arrears of spousal maintenance. That application was listed on 11 February 2016. On that day the matter had to be administratively adjourned as no Judge was available. However, had the matter been able to be heard, no material had been filed by the husband in response to the application. The application was adjourned to 3 March 2016.

4. On 23 February 2016, the wife filed an Amended Application in a Case in which she continued to seek orders for the sale of Suburb F and further seeking, inter alia, the payment of lump sum spousal maintenance in an amount of $37,000, calculated at the rate of $700 per week until the end of 2016; payment of $10,000 to the forensic accountant, Mr G, nominated to prepare a valuation of the husband’s self-managed superannuation fund and in two motel businesses; payment of $9,000 to a proposed mediator and payment of a sum to be determined by way of costs ordered to be paid by the husband.

5. When the matter came before the Court on 3 March 2016, no material had been filed by the husband who sought an adjournment to meet the application. An adjournment was granted and an order made that the husband pay the costs thrown away by his failure to file his material in a timely way. The matter was adjourned to 4.15pm on 9 March 2016.

6. The husband’s response, affidavit and financial statement was electronically filed at 5.04pm on 8 March 2016. The wife, as is known to the husband, is a Country C speaker and requires documents to be interpreted. Rule 9.08(3) specifies that material be filed 2 days prior to any hearing. In circumstances where there had been no opportunity to translate the husband’s material for the wife, he was not permitted to rely upon it.

7. On 9 March 2016, it was conceded by the solicitor for the wife that the payments of spousal maintenance were up to date but the wife sought to proceed with her amended application.

8. On behalf of the wife it was submitted that the husband had persistently failed to comply with the order for spousal maintenance. The order was made on 11 December 2015. The husband made the first payment of $1,400 on 29 December 2015 and further payments of $1,400 on 15 January 2016 and $2,100 on 12 February 2016. Thus, while the husband’s payments were in arrears on 3 March 2016 he had made some payments and the payments were up to date on 9 March 2016.

9. In those circumstances, the wife’s application for the payment of lump sum maintenance could not succeed.

10. In relation to the application seeking the payment of $10,000 to the forensic accountant, it was conceded that the application was premature. The superannuation fund owns real estate upon which one of the husband’s motel businesses is conducted. The superannuation fund cannot be valued until such time as the real estate has been valued. Those valuations are in progress but not yet completed.

11. Similarly, in relation to the payment to the mediator, it was conceded that that application is also premature. No appointment has been made with the mediator, no mediation agreement has been signed. The mediation cannot take place until the valuations had been completed.

12. In relation to the costs of the application filed 24 December 2015, no order for costs has been made other than the order in respect of costs thrown away and those costs are not yet due to be paid.

13. The final order sought by the wife is an order for the payment of costs not yet assessed and that order will not be made.

14. There is no basis on which an order for the sale of Suburb F can be made at this time and accordingly, the Application in a Case of the wife filed 24 December 2015 and the Amended Application in a Case of the wife filed 23 February 2016 will be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 March 2016.

Associate:

Date:  11/3/2016