Lang & Lang

[2022] FedCFamC2F 793

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lang & Lang [2022] FedCFamC2F 793

File number(s):	BRC 3621 of 2018
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	23 March 2022
Catchwords:	FAMILY LAW – interim property consent orders – update of property valuation – matter referred to national assessment team to be fixed for final hearing.
Legislation:	Family Law Act 1975 (Cth).
Division:	Division 2 Family Law
Number of paragraphs:	10
Date of hearing:	23 March 2022
Place:	Melbourne
Counsel for the Applicant:	Mr P. Baston
Solicitor for the Applicant:	MCG Legal
Counsel for the Respondent:	Mr N. McGregor
Solicitor for the Respondent:	Ogge Law

ORDERS

BRC 3621 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS LANG

Applicant

AND:

MR LANG

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	23 MARCH 2022

THE COURT ORDERS THAT:

1.The matter be adjourned to 22 April 2022 at 9:30am for Mention Hearing at the Federal Circuit and Family Court of Australia before Judge Middleton to ascertain a trial date.

THE COURT ORDERS BY CONENT THAT:

2.Within 7 days from the date of this order the parties do all acts and sign all documents necessary to jointly instruct Company B, Property Valuers to prepare a valuation report in respect of the real property situated at C Street, Suburb D in the State of Queensland.

3.The costs of the Company B valuation report be paid equally by the parties in the first instance, with ultimate responsibility for the payment of Company B's costs to be determined by the Trial Judge.

4.Each parties' costs associated with the hearing listed for 23 March 2022 be reserved.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. This matter comes before me this day for final hearing on 23 March 2022, having previously been fixed for final hearing on 27 January 2022.  The proceedings were issued on 4 April 2018.  The parties were married for a long time; from 1985 until they separated in 2015. They were divorced in 2017.  The matter was fixed for final hearing once before, in October 2020, but the matter was unable to proceed as it had been swept up in the Court’s availability to deal with long outstanding matters. This matter is certainly one of the longest that is currently waiting to be heard in the Court. 

2. On 27 January 2022, the Chief Judge was told that the main issue in dispute that would require attention was the issue of the Family Law Act 1975 (Cth) section 75(2) factors and possible adjustments relating to the Wife's health. However, before me today I heard that there remains an issue of the value of the significant remaining asset of the parties, the residential property known as the E Street property (‘the property’)

3. The property was transferred to the Wife's sole name in 2019, where she refinanced the then existing mortgage.  It is common ground that the property is to be included in the pool. 

4. The parties had previously obtained a single expert valuation as at April 2021, where the latest comparable sale used for that valuation was in February of 2021.  The Husband sought (but did not obtain) a revision of that valuation on 12 May, 14 June and 6 December in 2021 and, again, on 27 January 2022.  It is alleged and does not appear disputed that on 27 January 2022 at least one of the parties thought or believed there was an agreement that the existing valuation would be updated.  If there was such an agreement, it had fallen apart. 

5. It appears, from reading the Wife’s reply affidavit, that those events are not disputed and that the valuation should be updated. However, there is dispute as to the weight to be given to any increase in value since the property came into the Wife’s sole name.

6. After 27 January 2022, the Husband attempted to remedy the disagreement and retained a new valuer of his own accord. That valuer was only able to value the property by way of an external or drive-by view, together with title details and more recent comparable sales. 

7. It is with some regret that I acquiesce in the parties' joint position, they being represented by experienced counsel, that the best way forward is now to jointly retain the single expert who was previously retained to value the property and to adjourn the matter further. 

8. It will be necessary for me to refer the matter to the national assessment team for the matter to be fixed for hearing.  If I were to retain the matter in my list, I could not list it until July 2023, unless there was a collapse in my list.  I am already over listed every day until then, anticipating most matters will collapse.  Because this matter has already waited a very significant time to be beard, a listing in 2023 would be unhelpful and unrealistic.  

9. I am grateful to the hard work of counsel in sorting this matter out for the time being.  I raised with them the possibility of starting the matter tomorrow, 24 March 2022, and dealing with the valuation when it came out.  The parties were united against my suggestion.  Experience tells me that experienced counsel's view should be respected and will be made on very sound grounds, taking into account a multitude of factors. 

10. I will make those orders. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       16 June 2022