Jacovit and Gruv

[2010] FamCA 1220

FAMILY COURT OF AUSTRALIA

JACOVIT & GRUV [2010] FamCA 1220

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited trial

Family Law Act 1975 (Cth)

APPLICANT: Mr Jacovit

RESPONDENT: Ms Gruv

FILE NUMBER: MLC 13270 of 2007

DATE DELIVERED: 24 DECEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 24 DECEMBER 2010

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: MW LAW (GREENSBOROUGH PTY LTD RYAN MACKEY & MCCLELLAND (A FIRM)

Orders

1. That the application is dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13270  of 2007

MR JACOVIT

Applicant

And

MS GRUV

Respondent

REASONS FOR JUDGMENT

1. On 13 December 2010, by arrangement with the Registrar, Mr Jacovit filed an application in a case seeking that the final hearing of his application to determine a property dispute with his former defacto partner Ms Gruv, be heard with priority.

2. I am unaware of whether the application has been served on the practitioners for Ms Gruv as no details were provided. If they have received the applicant’s material, they have not responded. Normally procedural fairness would require service to be effected but in this case, I do not propose to grant the application.

3. The applicant filed an affidavit with the application and in that, he set out his parlous financial position and the potential dilemma if the determination of his entitlement is not made. The affidavit had a hand-written insertion suggesting that creditors would move against him. That may give rise to the Court requiring them to be notified anyway because of s 79(10) of the Family Law Act 1975 (Cth).

4. The Court file discloses the parties “opted” into the jurisdiction despite presumably having separated before 1 March 2009.

5. A conciliation conference occurred on 2 March 2010 at which both parties were represented by their respective solicitors. The case did not settle and was then placed in the queue awaiting a trial.

6. The applicant’s affidavit is replete with complaints about the problems created by the respondent in respect of discovery despite the Registrar having covered that by her orders. No application has since been made for discovery.

7. The Registrar’s orders also refer to the fact that there are still outstanding parenting issues and the parties were going to see Mr P. I am unaware of the state of that dispute.

8. Curiously, the applicant has asserted that the respondent has control of the parties’ home in which he said there was an equity of approximately $1,000,000. He also referred to significant shareholdings. His assertion is that the pool of assets is “some $2,000,000” and that all of it seems to be under the control of the respondent.

9. I note that the Court file does not disclose any application for interim order has been made; it may be that the applicant feels that he cannot or would not succeed but he does not say that.

10. The decision to grant or deny an expeditious hearing is a discretionary one. The only guidance as to the exercise of that discretion is set out in Rule 12.10A of the Family Law Rules 2004. I am being asked to give this case priority over the many others that await a final hearing. All parties and the Court see every case as important.

11. I turn then to the matters in the Rules.

12. I could not be satisfied that the applicant has acted reasonably and without delay in the conduct of the case and in making this application because there has been no indication of attempts to resolve the immediate problem. Months seem to have gone by.

13. Whilst granting an expedited hearing creates no prejudice for the respondent, it would place this case ahead of others. If this application were granted, it must follow that some other case will be delayed. That is hard to justify where the circumstances are as I have outlined.

14. The Rules provide that the relevant circumstances that would justify creating the detriment for other litigants include:

    (a)whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

    (b)      whether a party has been violent or harassing of the other;

    (c)      whether the applicant is suffering financial hardship that:

    (i)       is not caused by the applicant; and

    (ii)cannot be rectified by an interim order (emphasis mine)

    (d)whether the continuation of interim orders is causing the applicant or a child hardship;

    (e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

    (f)whether the case involves allegations of child sexual, or other, abuse; and

    (g)whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

15. In this case, on the papers and on the basis of those matters, I could not find a justifying circumstance to warrant expedition.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 December 2010

Associate: 

Date:  24 December 2010