Janeiro and Janeiro

[2018] FamCA 1014

FAMILY COURT OF AUSTRALIA

JANEIRO & JANEIRO [2018] FamCA 1014

FAMILY LAW – Interim property – Where application for interim financial and other orders – Where application made in circumstances where final hearing dates fixed two months away – Where  appropriate for interim issues to be ventilated at final hearing – Where application inappropriate in the circumstances – Where application consolidated with final hearing – Where costs reserved to final hearing.

APPLICANT: Ms Janeiro

RESPONDENT: Mr Janeiro

FILE NUMBER: PAC 4764 of 2015

DATE DELIVERED: 3 December 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Picker

SOLICITOR FOR THE APPLICANT: CM Lawyers

COUNSEL FOR THE RESPONDENT: Ms Snelling

SOLICITOR FOR THE RESPONDENT: James Papas Solicitors

Orders

1. That the wife’s Application in a Case filed 25 September 2018 and the husband’s Response thereto be consolidated with the issues for determination at final hearing commencing 3 December 2018.

2. That costs be reserved to final hearing.   

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Janeiro & Janeiro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4764 of 2015

Ms Janeiro

Applicant

And

Mr Janeiro

Respondent

REASONS FOR JUDGMENT

1. The application for determination is an Application a Case filed by the wife on 25 September 2018 in the context of ongoing property proceedings as between herself and the respondent husband.

2. The wife in her Application a Case seeks orders that, in summary, provide:

   a)that the husband pay J Bank mortgage payments relating to the mortgage secured over the former matrimonial home in the sum of $1,628.00 per month;

   b)that the husband do all necessary things so as to facilitate a withdrawal of $75,000.00 from the Investment Loan Account with such sum payable to the wife for the purposes of repairing the matrimonial home, in particular, termite damage and repair caused by termite activity in the garage;

   c)that the husband forthwith rectify the damaged wall at property D Street, Suburb E and carry out all other rectification works on the property including rectification of gyprock and stairway in the business premises at the rear of the premises;

   d)that the husband ensure that the rectification of the wall in the front unit of the property be rectified using proceeds provided to the husband in the sum of $100,000.00 by way of court order dated 1 February 2016;

   e)that the husband forthwith rectify and make good all damage to the ceiling and to the walls of the rear premises that were made by the husband’s use of the business premises at Suburb E;

   f)that the husband forthwith rectify and make good the metal stairs in the [business premises] in accordance with the Council regulations;

   g)Costs. 

3. For the purposes of her interim application the wife relied upon her affidavit filed 25 September 2018.

4. The husband filed on 17 October 2018 a Response to the wife’s application.  In his Response, the husband sought orders that provided:

   a)that the Application a Case be adjourned and consolidated with the final hearing of property proceedings listed for hearing 3, 4 and 5 December 2018;

   b)that in the alternative the wife’s Application in a Case be dismissed;

   c)Costs.

5. The husband relied upon his affidavit filed 17 October 2018.

6. These proceedings were commenced by the applicant husband in September 2015.  In that application he sought orders as to parenting in relation to the child of the parties’ relationship B born in 2008 and property adjustment as between himself and the wife. 

7. The wife filed her Response to the husband’s Initiating Application in November 2015 also seeking orders as to property adjustment and parenting.

8. The interim application was listed for hearing before the Court on 22 October 2018.  On that day certain orders were made as follows:

   By Consent:

   1.        That the husband and wife forthwith sign all documents necessary to give all consents necessary to transfer funds from the [Investment Loan Account] No … and thereafter deposit such funds into the J Bank Account No #55 from which the mortgage payments will be made (mortgage on K Street, Suburb L) until further order of the Court such payments not to exceed $1,656.00 per fortnight.

   2.        That the documents as provided to the husband by the wife will be signed by both parties by no later than 4.00 pm on Friday 26 October 2018.

   3.        That in the event either party refuses or neglects to execute the documents in 1 above pursuant to s 106A(b) a Register or officer of this Court may execute the documents in their stead.

   IT IS FURTHER ORDERED THAT

   4.        The solicitor for the applicant wife is to forward an electronic typescript of the document marked “A” as amended to the Court within two business days.

   5.        In respect to the wife’s Application in a Case filed 25 September 2018 and the husband’s Response to that Application in a Case filed 17 October 2018, judgment is reserved to a date to be fixed.

   6.        Leave is granted to the parties and the Independent Children’s Lawyer to have access to all documents produced on subpoena in these proceedings.

   7.        Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

9. During the course of proceedings interim parenting orders were made by Hannam J on 23 November 2015 following a defended interim hearing.  Subsequently further interim parenting orders were made on 27 July, 2016 following a defended interim hearing before Hannam J.

10. Subsequently on 15 August 2016 interim property orders were made following defended interim proceedings again before Hannam J.  Interim property orders were made in the following terms:

    BY CONSENT IT IS ORDERED

    (1)      Except in the normal course of business for the husband and usual household and living expenses of the wife and the parties child or by written agreement signed by both parties, the wife and the husband be restrained from spending, disposing, selling or in any way encumbering any of the following:

    (a)       The cash at hand and bank savings of the parties held in the name of the wife or held for the child of the parties or held in the name of any other party on behalf of the wife or the husband.

    (b)      Any plant equipment and motor vehicles owned by the parties registered in the husband’s name or the wife’s name including:

    (i)       4WD motor vehicle;

    (ii)      German Motor vehicle;

    (iii)     Motor home;

    (iv)     Work Equipment 1;

    (v)       Bobcat;

    (vi)     Truck 1;

    (vii)     Tipper truck;

    (viii)    Work Equipment 2;

    (ix)     Forklift;

    (x)      Scissor lift;

    (xi)     Work Equipment 3;

    (xii)     Work Equipment 4;

    (xiii)    Truck 2;

    (xiv)    Vintage car.

    IT IS ORDERED

    (2)      Until the settlement or final hearing of this matter, the husband have exclusive use of the following:

    (a)       4WD motor vehicle;

    (b)      Work Equipment 1

    (c)      Bobcat;

    (d)      Tipper truck;

    (e)      Work Equipment 3

    (f)       and that the wife deliver to the husband within seven (7) days, the registration and insurance documents for those vehicles.

    (3)      By way of enforcement of Order 1 made on 1 February 2016, that the wife within 3 days do all things to withdraw $100,000.00 from her J Bank account described at item 37 of her Financial Statement filed on 9 November 2015, and pay it immediately after withdrawal to the trust account of the husband’s solicitor.

    (4)      That the husband have exclusive occupation of the rear business premises, office and yard at [D Street, Suburb E] until the settlement or final hearing of this matter.

    (5)      That the husband have the exclusive right to repair and make Council compliant, as soon as practicable, as required by the Order of [F] City Council dated 23 November 2015, the parties’ warehouse at [D Street, Suburb E] and that the wife pay and contribute one half of the costs incurred by the husband in complying with Council’s requirements in relation to the business premises on presentation to the wife of a copy of any invoice necessary for compliance with Council’s requirements.

    (6)      The wife’s Application for costs in these proceedings be reserved.

11. On 3 April 2018 Hannam J made trial directions to move the matter to final hearing.  Those trial directions required the parties to file their trial affidavits by no later than 18 June 2018 with issues both as to parenting and property to be determined under the provisions of Division 12A of the Act.

12. On the same day Hannam J noted that “both parties advise that the only outstanding evidence in relation to the property orders are the valuation of plant and equipment and vehicles and an updated valuation in relation to real property.  The proceedings are not to be listed for final hearing until expert evidence in relation to valuation has been filed”.

13. On 26 July 2018 proceedings were listed for a Compliance Listing before a Registrar and in the event that the parties had complied with trial directions, hearing dates would have been allocated that day.  The parties had filed their trial affidavits save for an outstanding affidavit by the wife’s treating medical practitioner.  Otherwise, it was noted that valuations had still not been obtained from a single expert. 

14. The Registrar extended compliance for the final filing of affidavit material to 16 August 2018 with the compliance listing adjourned to 23 August 2018.  On 23 August 2018 the parties were granted leave to approach the list clerk to obtain trial dates and final hearing dates for three days commencing 3 December 2018 were allocated.

15. Notwithstanding the fast approaching final hearing dates, the wife saw fit to file the present application on 25 September 2018.  As noted above, the application was partially resolved by consent and, otherwise, the determination of the application was reserved.

16. It is clear that the outstanding issues for determination are more than capable of being ventilated at final hearing where the Court is able to determine disputed factual matters on the basis of contested evidence before it.

17. The filing of the present application by the wife is precipitate and an inappropriate use of process where at the time of the interim hearing the final trial between the parties was barely a month or so away. 

18. In all of the circumstances, it is appropriate that the present application be consolidated with the issues for final determination.

19. Accordingly, it will be ordered that the Application in a Case filed 25 September 2018 and the husband’s Response thereto be adjourned to final hearing and consolidated with the issues for determination at final hearing.

20. Otherwise, costs of and incidental to the present interim application are reserved to submissions at final hearing. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 December 2018.

Associate: 

Date:  3 December 2018