Herringbone & Holden

[2008] FamCA 1145

FAMILY COURT OF AUSTRALIA

HERRINGBONE & HOLDEN [2008] FamCA 1145

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Mr Herringbone

RESPONDENT: Ms Holden

FILE NUMBER: MLC 7174 of 2008

DATE DELIVERED: 14 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Cronin

HEARING DATE: 14 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HANDS

SOLICITOR FOR THE APPLICANT: MCNAMARAS

COUNSEL FOR THE RESPONDENT: MR MCLEOD

SOLICITOR FOR THE RESPONDENT: PATRICK DIRCKZE

Orders

1. That all proceedings between the parties be transferred for hearing in the Federal Magistrates Court of Australia and be listed in the appropriate Federal Magistrates Duty List on a date to be fixed if practicable, not before 8 December 2008.

2. That by 4.00pm on 10 November 2008, the husband file and serve any amended application seeking final orders (including by such application naming any person other than the husband and the wife as a third party and seeking orders against them) together with any affidavit material upon which he intends to rely and a financial statement that complies with Chapter 13 of the Family Law Rules 2004.

3. That by 4.00pm on 25 November 2008, the wife file any amending response to the husband’s application upon which she intends to rely together with any affidavit material upon which she intends to rely at the final hearing together with a financial statement that complies with Chapter 13 of the Family Law Rules 2004.

4. That all interim applications filed to this date be otherwise dismissed and removed from the list of cases awaiting a hearing.

5. That the parties attend a conciliation conference with a registrar of the court at 11.00am on 18 December 2008 and make a bona fide endeavour to resolve all outstanding final issues between them.

6. That my reasons for these orders be attached to the file and be made available to the parties.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7174  of 2008

MR HERRINGBONE

Applicant

And

MS HOLDEN

Respondent

REASONS FOR JUDGMENT

1. In this matter, at my suggestion and with the agreement of the parties, all outstanding proceedings are transferred by order to the Federal Magistrates Court of Australia.

2. The reasoning behind the transfer is that all parties agree that the financial issues outstanding between them are modest and do not warrant the significant delay and expense that would otherwise be incurred by remaining in this Court.

3. All parties have agreed to cooperate in respect of the filing of all of the material that would necessitate the matter being ready for trial and to that extent, I have made orders requesting that the matter be listed not before 8 December 2008 by which time, the parties will have had an opportunity to complete and file their material.  I have also made at their request, an order for a conciliation conference with a registrar in the hope that the parties may be able to negotiate some sort of final settlement.

4. Although it is not the only issue of a financial nature in dispute, the parties predominately agree that a major issue is who gets to retain the business currently conducted at S.

5. The proceedings began when the husband filed an application in August 2008 in this Court supported by a financial statement.  The wife then followed with an application in a case and supporting material.

6. I heard the matter on 25 August 2008 and at that time, the wife was represented by counsel and the husband was not.  I gave reasons for my orders that day which are on the file.

7. Subsequent to those orders, each party filed material prepared by themselves and without the assistance of legal representatives but when the matter came on for hearing on 14 October 2008, new solicitors were acting for both parties and those practitioners had briefed counsel. 

8. It was common ground at the start of the day that there were very few issues in dispute mostly because of the fact that the parties had filed documents themselves.  To that end, the parties agree that they each need to file material relevant to the issue of dispute.

9. Both counsel indicated to me that they were going to try to resolve the issue providing they are briefed to remain in the matter.

10. In the husband’s application in a case which he filed personally, he sought to join the son of the wife.  That application arose out of some comments that I made about the difficulty that the husband had with the course of action that he was taking back in August.  I indicated that on the material I had read, it would be difficult to see how the son could be joined at this stage having regard to the fact that there was no substantive orders sought against him.  That problem may be rectified if the husband receives advice as to the appropriate way to bring the case involving the son.  It may be that if that does not occur properly, the husband will face the prospect of an order for costs if there is not an appropriate substantive order and supporting material when the matter comes before the Federal Magistrates Court of Australia.

11. There are a number of other issues arising out of the orders that I made on 25 August 2008 but they relate to compliance.  It seems that the husband has not complied and the wife has reserved her position as to whether she will force compliance.  There was also a comment made by counsel for the wife that his client had not expected that I would make Order 15 in the orders, however as I pointed out, that was urged upon me by counsel for the wife at that time.

12. This is a case in which all parties need to be pragmatic and resolve the problem on a simple basis and to that end, all parties have agreed to continue the discussions in the meantime.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 October 2008