Hamilton and Logan

[2013] FamCA 1092

FAMILY COURT OF AUSTRALIA

HAMILTON & LOGAN [2013] FamCA 1092

FAMILY LAW – non-attendance by Mother – Preparation of a Family Report
FAMILY LAW – PROPERTY – valuer to be appointed as the single expert to value D Street.
FAMILY LAW – COSTS

APPLICANT: Ms Hamilton

RESPONDENT: Mr Logan

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Clayton

FILE NUMBER: MLC 3521 of 2011

DATE DELIVERED: 11 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD:	Melbourne
JUDGMENT OF:	Johns J

HEARING DATE: 11 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Juneja

SOLICITOR FOR THE RESPONDENT: GA Black & Co

INDEPENDENT CHILDREN’S LAWYER Mr Clayton

INDEPENDENT CHILDREN’S LAWYER Taylor Splatt & Partners

Orders

1. That the parties and the child attend upon Ms B, Family Consultant or such other Family Consultant as nominated by the Director of Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a Family Report AND IT IS REQUESTED that if practicable:-

   (a)The said family consultant communicate with the child’s teachers at C School regarding her progress prior to the conclusion of the 2013 school year; and

   (b)The Family Report be released by 17 January 2014.

2. That by 4.00pm on 13 December 2013 the husband serve upon the wife a letter which:-

   (a)Lists his three nominated property valuers to value the property situate at and known as D Street, Suburb E (“D Street”);

   (b)The fees charged by each proposed valuer; and

   (c)Inviting the wife to confirm in writing which of the three nominated valuers is to be appointed as the single expert valuer to value D Street. 

3. That within seven days of receipt of the letter referred to in Order 2 hereof the wife forward to the husband’s solicitor a letter confirming the nominated valuer to be appointed as the single expert to value D Street (“the single expert”).

4. That in the event that the wife does not comply with Order 3 hereof the husband be at liberty to nominate one of the proposed experts as the single expert.

5. That the wife do all such acts and things as may be required to provide the single expert with access to D Street for the purpose of the valuation.

6. That on or before 15 January 2014 the husband file and serve an affidavit of the single expert.

7. That the husband pay the costs of the single expert at first instance and the question of the wife’s contribution thereto be reserved to the Trial Judge.

8. That the husband’s costs of this day be fixed in the sum of $600 and reserved.

9. That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamilton & Logan 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 3521 of 2011

Ms Hamilton

Applicant

And

Mr Logan

Respondent

REASONS FOR JUDGMENT

1. I have before me today a mention hearing in relation to the party’s competing applications with respect to the care of the child, F who is aged eight years.  In addition, there are also financial matters before the court. 

2. On the last occasion this matter came before the court on 4 September 2013 I ordered that the parties attend a conciliation conference this day at 9.15.  Further, I listed the matter for mention before me at 12.30 today in order to ensure that the matter was ready to proceed to a final hearing on 21 January 2014.  For reasons unknown and unexplained to the court the wife has failed to appear both at the conciliation conference and also at the mention hearing before me. 

3. With respect to the financial matters notwithstanding orders that I had previously made on 4 September 2013 for the filing of a single expert valuer’s report in relation to the value of the former matrimonial home, that task has not been undertaken.  I am informed by counsel for the husband that when the wife’s solicitor was engaged it had been agreed between the parties’ lawyers that that property did not need to be valued as it was anticipated that it was likely to be sold.  The wife is not here today to answer that allegation.  However, it is evident from her application before the court and more particularly the reply that is filed on her behalf that she seeks to retain the property. 

4. We now face a situation where a matter of some six weeks out from trial and with the Christmas holiday period intervening it is a matter of necessity if the property application is to proceed that valuations be undertaken with respect to the property at Suburb E.  I say this as it is evident from the financial statements filed on behalf of each of the parties that the major asset in which they have an interest is the property in Suburb E.  It is also evident from their respective financial statements that there is a wide disparity in terms of their individual assessment as to that property’s value.

5. In those circumstances and upon the application of the husband made this day I propose to make orders that will provide for a process for the nomination of a single expert valuer by the husband and for a valuation to be undertaken in anticipation of the trial date on 21 January 2014.  

6. With respect to the parenting matters due to an oversight within the court the family consultant has not yet undertaken interviews and assessments of the parties for the purposes of the preparation of a family report.  Again, this is an essential piece of evidence if the trial is to proceed on 21 January.  I understand from the counselling service that Ms B who has previously had involvement in this matter is available to interview the parties in January 2014 with a view to releasing a report by 17 January 2014.

7. The child the subject of the proceedings, F, is a child with special needs.  She has autism.  She attends a special school being the C School.  It is submitted by both counsel for the husband and by the Independent Children’s Lawyer that, if possible, it would be appropriate for the family consultant to make contact with that school to ascertain F’s progress both academically and socially in her school setting.  Accordingly, I will make orders for the parties and the child to attend upon the family consultant for interview, and further I will make a request that if practicable, the family consultant communicate with the child’s school.

8. Accordingly, I propose to make orders as follows:

   (1)That the parties and the child attend upon Ms B, family consultant or such other family consultant as nominated by the Director of Child Dispute Services of the Melbourne registry for the purposes of the preparation of a family report and it is requested that if practicable:

   (a)the said family consultant communicate with the child’s teachers at C School regarding her progress prior to the conclusion of the 2013 school year; and

   (b)the family report be released by 17 January 2014.

   (2)That by 4 pm on 13 December 2013 the husband forward to the wife a letter which:

   (a)lists his three nominated property valuers to value the property at D Street, Suburb E (“D Street”);

   (b)the fees charged by each proposed valuer;

   (c)inviting the wife to confirm in writing which of the three nominated valuers is to be appointed as the single expert valuer to value D Street.

   (3)That within seven days of receipt of the letter referred to in order 2 hereof the wife forward to the husband’s solicitor a letter confirming the nominated valuer to be appointed as the single expert (“the single expert”);

   (4)That in the event that the wife does not comply with order 3 hereof the husband be at liberty to nominate one of the proposed experts as the single expert;

   (5)That the wife do all such acts as may be required to provide the single expert with access to D Street for the purposes of valuation;

   (6)That on or before 15 January 2014 the husband file and serve an affidavit of the single expert;

   (7)That the husband pay the costs of the single expert at first instance and the question of the wife’s contribution thereto be reserved to the trial judge;

   (8)That the husband’s costs of this day be fixed in the sum of $600 and reserved; and

   (9)Certification for counsel and solicitor appearing as counsel.

9. It will be for the wife to explain her absence at the trial and to explain why she should not be meeting the husband’s costs of today.  I have considered the husband’s application and it seems to me that only a proportion of the costs of the day related to the conciliation conference, the balance relating to Counsel’s appearance before me at the mention hearing.  That is the basis upon which I have fixed the husband’s costs of today.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 December 2013.

Associate: 

Date:  11 December 2013