Jolley & Jolley

[2008] FamCA 1246

FAMILY COURT OF AUSTRALIA

JOLLEY & JOLLEY [2008] FamCA 1246

FAMILY LAW – CHILDREN – transferred to Federal Magistrates Court
FAMILY LAW – PROPERTY SETTLEMENT – Consent minutes

Family Law Act 1975 (Cth)

APPLICANT: Mr Jolley

RESPONDENT: Ms Jolley

FILE NUMBER: ADC 4841 of 2007

DATE DELIVERED: 12 December 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 12 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Burrell

SOLICITOR FOR THE APPLICANT: David Burrell and Co

COUNSEL FOR THE RESPONDENT: Ms N Hurley

SOLICITOR FOR THE RESPONDENT: Diane Myers Pty Ltd

UPON NOTING that the parties have signed a binding child support agreement that provides for the husband to pay the wife the total sum of $100,000 in full and final satisfaction of his future child support payments and that the wife is to be responsible for the children’s private school education.

Further, the payment referred to in Order 1(a) herein is to be deemed a payment from the husband to the wife as it is a payment to the children’s school for arrears of fees being paid directly to the solicitors for the children’s school.

ORDER BY CONSENT

1. That all parties do all such acts and things and sign all such documents as are necessary to authorise the solicitors for the wife Diane Myers Pty Ltd to forthwith release the funds currently held on trust for the parties as follows:

   a)The sum of $12,836.20 to Marshall Lawyers Trust Account

   b)The sum of $57,163.80 to the wife; and

   c)The balance to the husband.

2. That Orders 1 and 2 sought by the husband in his Application in a Case be dismissed.

FURTHER ORDER

1. That the Application in a Case filed by the husband on 25 March 2008 be dismissed and removed from the pending cases list.

2. That the Response filed by the wife on 2 May 2008 be dismissed and removed from the active pending cases list.

3. That the Application for Final Orders filed on 22 July 2008 be dismissed and removed from the active pending cases list.

4. That by 4:00pm on 2 February 2009 the wife file and serve responding documents to paragraphs 3-16 of the Amended Application in a Case filed by the husband on 14 November 2008 and paragraphs 4-16 of the Amended Application for Final Orders filed on 14 November 2008.

5. That paragraphs 3-16 of the Amended Application in a Case filed by the husband on 14 November 2008 and paragraphs 4-16 of the Amended Application for Final Orders filed on 14 November 2008 be transferred to the Federal Magistrates Court on the basis that it is not to be listed before April 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4841 of 2007

MR JOLLEY

Applicant

And

MS JOLLEY

Respondent

EX TEMPORE REASONS

1. This is a matter which has had a chequered history.  I just need to dwell on that history for a moment in terms of the applications filed this year.  There were final orders made by consent on 28 September 2007 in relation to property settlement.  This year, though, the husband filed an application in a case on 25 March 2008.  That was responded to by the wife with a response filed on 2 May 2008.  That application and response came before Burr J on 7 May 2008, when his Honour ordered that the husband file an application seeking final orders.  The husband did that, and that application was filed on 22 July 2008.

2. Since then the matter has been back before the court on a number of occasions, when indications have been given that the matter had settled.  On 6 November 2008 though the wife did not attend the hearing, either personally or by her legal representatives, and the matter was adjourned to today for argument.

3. In the meantime, on 14 November 2008, the husband filed an amended application seeking final orders and an amended application in a case.  There have been no responding documents filed to those applications.  The reason for that, I am told today, is that the parties have been able to reach agreement about a number of the matters in dispute, and I have before me a minute of consent order dealing with the financial aspects of this matter, and that in effect provides for orders to be made to finalise those financial matters such that the relevant applications and the response can be dismissed.

4. In relation to children's issues, which are also the subject of the applications that are before me today, it seems that the parties have not yet reached a position where a consent order can be made.  I am told from the bar table that there is some sort of agreement that the parties have reached but, as I say, I am told as well that consent orders cannot be made in terms of that agreement.  I take it, from what Mr Burrell has put to me, that the parties want to trial an arrangement and then, if that is successful, the children's issues will obviously be resolved, but if not there may be further proceedings.

5. As I have said to both Mr Burrell and Ms Hurley, I am not prepared to simply adjourn the child issues.  Either there is a dispute, and I will order the filing of responding documents and then, as I have been asked to - and there is no issue about this - transfer those proceedings, because it is appropriate to do so, to the Federal Magistrates Court, or I dismiss the application.  I suppose a third option was that I make orders by consent.

6. I have explained that I am not being asked to take the third option or the second option, and I proceed on the basis that there is still a dispute about what final orders should be made in relation to the child issues; thus I will make an order for the wife to file responding documents, and then transfer those proceedings to the Federal Magistrates Court.

7. I have been asked, though, to include as part of the order for the transfer that the matter not be listed in the Federal Magistrates Court before April 2009, and I am happy to fall in with that request.

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 12 December 2008.

Associate