Harris and Harris

[2008] FamCA 883

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS [2008] FamCA 883

FAMILY LAW – PROPERTY – Case management and direction orders

Family Law Act 1975 (Cth)

APPLICANT: MR HARRIS

RESPONDENT: MS HARRIS

FILE NUMBER: MLF 2543 of 2006

DATE DELIVERED: 20 OCTOBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 20 OCTOBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HANLON

SOLICITOR FOR THE APPLICANT: HARWOOD ANDREWS

COUNSEL FOR THE RESPONDENT: MR ROCKMAN

SOLICITOR FOR THE RESPONDENT: ROCKMAN & ROCKMAN

ORDERS

IT IS ORDERED:

1. THAT the further defended hearing of this matter be fixed for 1 December 2008 at 10.00 a.m. before Young J, subject only to the re-listing of the matter currently fixed for that date.

2. THAT within seven (7) days the husband make, file and serve an affidavit of a qualified medical practitioner as to his current state of health and future prognosis.

3. THAT the wife have leave to make any responding affidavit as to medical and health issues within seven (7) days thereafter.

4. THAT the parties obtain an up to date valuation of the property at W and that such valuation be properly filed with the Court on or before Monday 24 November 2008.

5. THAT the solicitors for both parties make full and proper compliance with Family Law Rule 19.04 and provide such information to the Court on or prior to 12.00 noon Friday 28 November 2008.

6. THAT both parties make, file and serve on or prior to 12.00 noon Friday 28 November 2008:

   (i)         a chronology;

   (ii)        a one (1) page statement of assets and liabilities;

   (iii)a concise statement of the orders sought in the hearing.

7. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED:

A.THAT the solicitors are to do all acts and things necessary to give proper notice to the trustee of any superannuation fund in respect of which a splitting order is sought.

B.THAT the parties and counsel were briefed to attend an unsuccessful Financial Conciliation Conference held on 10 October 2008.

C.THAT the solicitors for the parties have agreed upon a form of discovery and disclosure as identified in the extempore reasons for judgment.

D.THAT the likely asset pool in this case is modest and solicitors will use their best endeavours to advise their clients and resolve the matter out of court.

IT IS NOTED that publication of this judgment under the pseudonym Harris & Harris is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2543 of 2006

MR HARRIS

Applicant

And

MS HARRIS

Respondent

REASONS FOR JUDGMENT

1. The matter of Harris is listed before me for mention this day.  Mr Hanlon, solicitor, appears for the husband.  Mr Rockman, solicitor, appears for the wife. 

2. By way of background, the initial application in this matter was filed 29 August 2006 and therefore more than two years have elapsed. 

3. There was a financial conference ordered and held on 10 October 2008, at which time the husband was represented by Mr Skerlj of counsel and the wife represented by Mr Dickson.  The matter did not resolve and as a result it has been listed before me to confirm preparation for final hearing and to obtain a date of hearing.

4. This matter should have been heard and concluded in the Federal Magistrates Court.   The pool of assets is modest and the issues seem limited.  It is a matter of significant surprise that experienced counsel would not have resolved this matter at the conciliation conference. 

5. In general terms, the primary asset is the parties' ownership of the home, in which the wife continues to reside at W.  Its valuation is in dispute, though I note that it is now said to be valued at approximately $320,000, pursuant to the wife's most recent financial statement.  The husband some months earlier had indicated its value to be approximately $380,000.

6. The parties have agreed on a valuation, have exchanged letters on the basis that they pay half the cost each, and that must occur.  I am advised from the bar table that the wife has paid and the husband has yet to pay, and I simply indicate that must be resolved.  Mr Hanlon has positively indicated to the court that an arrangement will be put in place so that valuation can be obtained forthwith. 

7. Given the current financial uncertainty in both this country and indeed the entire world, it is important that the valuation be as recent and as updated as practicable, having regard to what is said to be recent home sales' trends.  It may indeed be that the valuer will have to update immediately prior to trial.

8. Other than the home, there is superannuation of the wife and there are other chattels.  There is an extremely modest pool of assets and the parties have been spending on lawyers, including barristers, much of their meagre asset pool. 

9. The wife is in full‑time employment and other additional work with the Defence Force.  The husband is in receipt of a TPI pension, previously said to be paid in the sum of $700 per week. 

10. There is an issue about a debt owing by each of the parties to the Department of Veterans' Affairs.  It is said to be approximately $48,000 for each of them; the husband has entered into an arrangement to repay on terms and the wife is negotiating some form of repayment.  The resolution of that debt is a priority, as is the negotiated terms of payment. 

11. Both parties have applications before the court for orders sought.  I understand that overwhelmingly the wife desires to retain the home and pay to the husband a lump sum.  The husband is accepting of that outcome, provided the lump sum is appropriate, and he seeks 50 per cent of any net available pool of assets. 

12. One matter that solicitors must attend to is to make proper disclosure to all superannuation funds which may be affected by any splitting order, as sought by the husband in paragraph 5 of his amended application filed 28 August 2008.  There are particular issues of discovery, though from what I have heard they are of limited importance in the overview of this case. 

13. There is said to be a filing cabinet of documents, including a past bankruptcy application of the husband.  The current arrangement is that at 10.00 a.m. next Saturday that will be made available for collection by the husband or his nominee from the wife's home.  I am advised by solicitors that there is no need to make orders in that regard but there will be proper collection of the documents.  The obligation on the wife is to produce all documents.  The obligation on the husband is to inspect and then return all documents.  Each of them may make such copies as they like. 

14. The primary and very preliminary concern that I have in this case, and making no pre‑judgment, is there are not sufficient assets to support of sustain either the husband or wife.  The equity in the home will be much less than $200,000.  Both parties are incurring legal fees that are wholly out of reality and out of context for what they will one day receive.  They simply are spending on the lawyers now what would be their future modest sum. 

15. This case must be resolved, preferably by settlement immediately.  It is hard to imagine how and why the matter did not settle at the financial conference last month when the reality of the case and the very limited pool of assets was considered.  Those comments are made with no criticism of practitioners, but the clients need a major dose of reality in this case and need to settle a very, very modest financial case that may be made difficult by their own requirements or personality but which clearly should have been issued in the Federal Magistrates Court and resolved long, long ago. 

16. I will not permit further affidavits to be filed as there is trial material filed by each of them over the past few months.  The husband however does have permission to file a brief affidavit of an appropriately‑qualified medical practitioner as to his current state of health, it being recently discovered that he may have an illness of severity.  I am presently not inclined to permit the wife to have an independent medical examination of the husband. 

17. The reality of this case is that the husband is about 60 years of age.  He is on a pension.  There will be no work capacity issues in the case.  Whilst health is no doubt of primary importance for him, it may have more limited importance in the overview of this case, which will concern itself with a very small pool of assets and the section 79(4) contribution and other issues and of course the factors set forth in section 75(2) as are relevant. 

18. I have not heard submissions on the case and do not intend to at this mention.  What I expect is that this case will be prepared for hearing.  It may be that 1 December 2008 will become available and I intend to list this matter, subject only to that date becoming available today.  If not, I will endeavour to hear the matter in January 2009. 

19. I repeat, this is a matter which should resolve.  It is a disappointment that I have released the parties from this mention and they are not here to listen to my few words. I will charge both counsel with the responsibility to fully communicate my message today to both parties.  In no way is it a pre‑judgment of any issue, but a large measure of reality need dawn in this case. 

20. With those few words, I intend to make some procedural orders and list the matter for 1 December 2008, subject to the case that I am yet to hear from and which remains listed for that day. 

21. I require solicitors, or if they are to retain counsel in this matter, to have a meaningful discussion in this case prior to the listing date and I am sure that Mr Skerlj and Mr Dickson will be so brief when told by solicitors that this matter should have resolved.  I will require letters of content, pursuant to chapter 19 to be filed as to all costs, so I have a clear understanding of what the parties have spent and will spend in these proceedings.

22. I was asked and it is appropriate for the husband to explain what is his income from all sources and any documents supporting his income or assets as requested. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: