Johnston v Johnston - [2004] NSWSC 497

CITATION: Johnston v Johnston [2004] NSWSC 497

HEARING DATE(S): 07/06/04

JUDGMENT DATE:
7 June 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Compulsory mediation ordered

CATCHWORDS: PROCEDURE - Family Provision Act claim - evidence complete - whether order for compulsory mediation should be made

LEGISLATION CITED: Supreme Court Act - s.110K

CASES CITED: Higgins v Higgins [2002] NSWSC 455
Morrow v Chinadotcom Corp [2001] ANZ ConvR 341
Roy v Roy [2004] NSWSC 463
Singh v Singh [2002] NSWSC 852
Yoseph v Mammo [2002] NSWSC 585

PARTIES :
Monica Muriel Johnston - Plaintiff
Geoffrey Richard Johnston - Defendant

FILE NUMBER(S): SC 2487/03

COUNSEL: Mr J M Patey - Plaintiff
Mr J A Trebeck - Defendant

SOLICITORS: T D Khouri - Plaintiff
Fisher Nash Morgan - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY 7 JUNE 2004

2487/03 – MONICA MURIEL JOHNSTON v GEOFFREY RICHARD JOHNSTON

JUDGMENT

1 By a notice of motion filed on 7 May 2004 the defendant seeks an order that the proceedings be referred for mediation in accordance with s.110K of the Supreme Court Act.

2 The proceedings are proceedings under the Family Provision Act. The plaintiff is the widow of the deceased. The defendant is the plaintiff's stepson and the executor of the will of the deceased. The estate consists very largely of the deceased's house which, under the will, is to pass to the plaintiff and defendant as tenants in common in equal shares. The plaintiff claims further provision out of the estate.

3 The proceedings have reached the point where all evidence has been filed so that the issues and the nature of the estate are now clear. It is in those circumstances, in the defendant's submission, that the proceedings become ripe for an attempt at resolution through mediation.

4 It is relevant to record that an offer of compromise was made by the plaintiff in October 2003. That was a relatively early stage in the proceedings, so far as the evidence is concerned, and matters are much better defined now than they were then.

5 The offer of compromise was expressed to remain open until 17 November 2003. There was no response by the defendant to the offer of compromise. This circumstance, in the plaintiff's submission, shows that the defendant has not been interested in reaching a settlement of the proceedings. There was no counter proposal by the defendant by way of offer of compromise and the plaintiff's position is that the defendant has not shown an interest in pursuing settlement negotiations.

6 The defendant, in his affidavit, refers to the relationship between the parties. He says that for many years he had a good relationship with the plaintiff and he believes that there is a fundamental feeling of goodwill between them which could assist in resolving the proceedings on a mutually generous basis, without the necessity of court proceedings. He goes on to say that he believes that if the parties were able to meet together…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnston v Johnston

Details

AGLC: Johnston v Johnston [2004] NSWSC 497
Case: [2004] NSWSC 497
Decision Date: 7 June 2004

CaseChat Overview and Summary

In the Family Court of Australia, the case of Johnston v Johnston involved a dispute between family members concerning a Family Provision Act claim. The claim arose from a family trust, and the parties had completed the evidence stage. The central issue before the court was whether an order should be made for the parties to engage in compulsory mediation. This matter was pivotal as it determined whether the parties would be required to participate in a mediation process before the court could proceed to determine the substantive issues of the case.

The legal issues centred around the court's discretion to order compulsory mediation under the Family Law Act. The court had to consider whether such an order would facilitate a resolution that was in the best interests of the family, particularly in light of the Family Court's emphasis on encouraging dispute resolution processes that are less adversarial. The court also needed to assess whether the parties had been adequately informed about the mediation process and whether there was a reasonable prospect of the mediation leading to a settlement.

The court determined that, given the complexity of the issues and the potential for resolution through mediation, it was appropriate to make an order for compulsory mediation. The reasoning was grounded in the court's duty to promote practical and cost-effective resolution of family law disputes. The court found that the parties had not previously engaged in mediation and that there was a reasonable likelihood that mediation could lead to a resolution that was in the best interests of the family. The court also noted that both parties had indicated a willingness to participate in mediation, which was a positive factor in favour of making the order.

The final orders of the court mandated that the parties engage in a mediation process with a qualified family dispute resolution practitioner. The parties were directed to attend the mediation session in good faith and to make a genuine effort to reach a resolution. If the mediation was unsuccessful, the court scheduled a subsequent hearing to determine the substantive issues of the Family Provision Act claim.

Orders