Konrad and Kurtiz

[2014] FamCA 1070

FAMILY COURT OF AUSTRALIA

KONRAD & KURTIZ [2014] FamCA 1070

FAMILY LAW – Application for expedited hearing.  Husband and wife still living together – Problems with bank funding but still significant assets – Husband says his health justifies expedition but the evidence does not support that conclusion – Application for expedition refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Konrad

RESPONDENT: Mr Kurtiz

FILE NUMBER: MLC 3866 of 2014

DATE DELIVERED: 2 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM

THE APPLICANT: McKean Park Law

THE RESPONDENT: Pearsons Lawyers

Orders

1. That the application for an expedited hearing is refused.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3866  of 2014

Ms Konrad

Applicant

And

Mr Kurtiz

Respondent

REASONS FOR JUDGMENT

1. Mr Kurtiz applied by written submission on 21 November 2014 for an expedited hearing of substantive property proceedings.

2. The application was made after an order was made by Registrar Mestrovic on 10 November 2014 at a conciliation conference. That conference had been ordered only weeks before that by Registrar Moser.

3. The initiating application was filed by the wife Ms Konrad in the Federal Circuit Court on 6 May 2014. There is some significance in the fact that the wife’s application simply sought an equal division of the parties’ property. The husband responded by a response filed on 18 June 2014. He sought an order that the Court do whatever was just and equitable. That did not comply with the Family Law Rules 2004. That was interesting because in his financial statement filed at the same time, he set out with some precision the nature and value of property in his possession. The imprecision seems not to have been rectified after the transfer by the Federal Circuit Court to this Court.

4. Having said that, I understand that the husband and wife “filed” an outline of their cases for the conciliation conference just mentioned. Bearing in mind the provisions of s 131 of the Evidence Act 1995 (Cth), those documents remain confidential and inadmissible in evidence. In this case, the documents were still on the file and practitioners should be conscious of either having them returned or destroyed. I have not read or relied upon those outlines.

5. The facts of this case were gleaned from the applicant’s submission. I did not have the benefit of any response by the wife.

6. This is a marriage of over 30 years. The discretionary exercise of the s 79 power is what is in issue.

7. It was submitted by the husband that there were problems with the parties’ bankers who have declined to extend facilities. Indeed, it is said that the bankers want their money bank and they are owed $12 million. In circumstances where the parties have already begun to sell off assets to ameliorate their financial woes and will presumably face that problem again subject to what the husband’s pleaded case turns out to be, expedition hardly seems to be to the point. One must wonder how any settlement will take place even on a division of assets in specie without the cash position being considered for the coverage of legal fees and the like.

8. The husband’s second argument is that with the state of his health, an expedited hearing was justified. His doctor set out all the medical problems the husband is facing but then said (and I quote the letter as written):

   Despite this,(or maybe due to this attention to his health) he is in reasonably good shape for a patient who is due to turn 87 years old next month. However, with his underlying conditions, he will need to continue to be reviewed on an ONGOING BASIS. 

9. I am determining this application on what I am required to consider under rule 12.10A of the Rules. I am relying upon the written submissions relating to the expedition application.

10. The husband is currently about to turn 87 years of age. There is a child of the relationship but he is an adult. The wife is aged 60 years.

11. The husband submitted that he had acted reasonably and without delay and there was no prejudice to the wife. He submitted that his health and the problems with the bank justified expedition.

12. Rule 12.10A of the Rules is a discretionary determination. It provides that the Court may take into account whether the parties have acted reasonably and without delay and whether there is any prejudice to the respondent.  In this case, I accept the submission of the husband on those two matters.

13. Another consideration that guides the discretion is whether there is a relevant circumstance which would justify giving the case priority to the possible detriment of other cases.  The circumstances set out in the rules that give guidance to that determination are described in Rule 12.10A(4). I deal with those now.

14. Whilst age and health are relevant, it was not suggested by the husband that either would affect his availability or competence in respect of the future conduct of the proceedings particularly bearing in mind the delay factors to which I shall return below and my earlier observations about the very nature of the application itself. Additionally, the medical evidence suggests the husband is not anything other than in reasonably good health for his age.

15. Whilst the husband complained about having to live under the one roof with the wife, there is no suggestion here that I read to the effect that the parties would need to resort to the State courts for protective behavioural orders.

16. The husband is no doubt suffering financial hardship because of the problems he and the wife have with their bank but with the total resources at their fingertips, I consider there are many much worse off in the community who deserve greater consideration. Indeed, as indicated, their financial problems are in their own hands. If they cannot reach agreement, they can apply for interim orders.

17. Nothing was submitted here to suggest that the purpose of the case will be lost if it is not heard quickly.

18. Allegations of the nature referred to in (f) and (g) of the relevant sub-rule are not relevant here.

19. Whilst in the Melbourne registry, the delay between the filing of the initiating application and trial is over a year, the fundamental question is whether this case on the material provided warrants expedition which in turn would create a delay for other cases which are equally pressing and which have been in the list for a longer period. 

20. On the limited material available to me, I find no basis to grant the husband’s application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 December 2014.

Associate: 

Date:  2 December 2014