Juliet and Juliet

[2011] FamCA 125

FAMILY COURT OF AUSTRALIA

JULIET & JULIET [2011] FamCA 125

FAMILY LAW – PROPERTY SETTLEMENT – Where consent orders exist requiring a forensic accounting report and the parties to mediate – Requirements of consent orders to occur before trial dates will be set – Parties’ term deposit to be redeemed and proceeds applied to certain debts of the parties – Previous accountant of the parties to be paid so as to discharge their lien over parties’ records – Development property to be valued before further orders made in respect to it – Matter adjourned to a Registrar

APPLICANT: Ms Juliet

RESPONDENT: Mr Juliet

FILE NUMBER: BRF 6571 of 2002

DATE DELIVERED: 28 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 28 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hackett

SOLICITORS FOR THE APPLICANT: Evans & Company Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITORS FOR THE RESPONDENT: Michael Sing Lawyers

Orders

IT IS ORDERED THAT:

1. The hearing directions listing date of 10 March 2011 be vacated.

1. The proceedings be listed for a hearing directions before a Registrar at 3:15 pm on 5 May 2011 at the Brisbane Registry of the Family Court with the parties given leave to appear by telephone.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. The legal representatives for the Husband be authorised to redeem the term deposit held in the joint names of the Husband and Wife into their trust account and to apply the proceeds received as follows:

a.the arrears of payments to the Bank of Queensland as required by the Order made 14 January 2010 upon production of a document from the Bank of Queensland to the solicitors for the Wife concerning such arrears, and the last three (3) months bank statements issued by the Bank of Queensland in respect of the loan;

b.to pay the amount of $9,900 to D Accountants to release accounting records required by the parties and to discharge their lien over such records; and

c.to pay $35,000 to each of the parties classification of which is reserved to the trial Judge.

1. Each of the Wife and the Husband file and serve any further affidavit material they intend to rely upon at trial by 4:00 pm on 28 March 2011.

1. Each of the Wife and the Husband file and serve any affidavit in reply by 4:00 pm on 18 April 2011.

1. The costs of and incidental to this application be reserved.

It is noted that publication of this judgment under the pseudonym Juliet & Juliet is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 6571 of 2002

Ms Juliet

Applicant

And

Mr Juliet

Respondent

REASONS FOR JUDGMENT

1. Consent orders were made on 6 December 2010 by Bell J that V Accountants be the joint experts to prepare a report as to the parties’ finances.  Paragraph 4 of that order is: 

   “Following the provision of the affidavit material referred to in order 3 then a mediation is to take place.”

2. It is not my practice to go against consent orders.  Consent orders clearly provide for at least two hurdles to occur before this matter, appropriately, could be set down for trial.  One is that V Accountants  provide their report and secondly that a mediation take place.  I do not know the time frame, no information has been placed before the court.  All we know is that, so far, V Accountants do not even have the relevant financial documents which would enable them to commence the forensic exercise.

3. I accept the force of the submission that there have been lengthy delays and I accept that is unfortunate.  It is not my function at this point in time to investigate the cause of those delays other than to say it is not readily apparent that the delays have been caused by one party rather than the other - it could be a combination of factors.

4. I accept the force of the submissions that until we have V Accountants’ report the mediation simply cannot take place and it is fundamental that before further considerable costs are incurred in preparing documents for trial at least mediation should be tried.  The matter could settle.

5. I would have thought the value of the land at C was fundamental.  There is a wide discrepancy given by the husband in his financial statement, where he says that it is valued somewhere between $1.7 million and $3 million for the interest.  It is a fairly wide estimate.  I would hope that a valuation would come to a more precise figure. 

6. I accept that the husband’s position, at hearing, may be that the property be sold.  That does not mean to say that would be the wife’s position.  It does not mean to say it is the order that the court would make.  Until the land at C is valued, until V Accountants can provide their report and until there be a mediation, in my view it is premature to set the matter down for hearing.  The usual practice these days is not in accordance with the submissions made by counsel for the husband, namely if you allocate the dates then we can all get ready.  That used to be the system in the old days, these days we do not even give the dates until we know the parties are ready.

7. I can also say that most Judges are following the practice, these days, of not listing trial dates beyond three months.  There may be exceptions in the registry.  I can say with 100 percent confidence I will not be the trial Judge and what I propose to do is to adjourn this matter before a Register with the conduct of these proceedings, Registrar Coutts, and that will be on 5 May this year at 3.15 pm and I will give leave for the parties and their legal representatives to attend by phone.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 28 February 2011.

Associate: 

Date:  28 February 2011