Lincoln and Lincoln

[2007] FamCA 1428

FAMILY COURT OF AUSTRALIA

LINCOLN & LINCOLN [2007] FamCA 1428

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment to a later date in the judicial duty list sought by consent and refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Lincoln

RESPONDENT: Mr Lincoln

FILE NUMBER: MLC 10532 of 2007

DATE DELIVERED: 3 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S. Nichols

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr B. Apelbaum

SOLICITOR FOR THE RESPONDENT: Hale & Wakeling

Orders

1. That documents produced to the court this day in compliance with subpoenae be released to the parties and practitioners for inspection and photocopying provided that, subject to any further order of the Court, no party or practitioner is to photocopy the file produced by Department of Human Services.

2. That the wife’s application in a case filed on 2 November 2007 be adjourned to Registrar who convenes the conciliation conference on 22 February 2008 at 11am for directions to be made at the conclusion of the conference. 

3. I DIRECT that my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10532 of 2007

MS LINCOLN  

Applicant

And

MR LINCOLN  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list.  It is the return date of the wife's application in a case filed on 3 December 2007.  In that application she seeks specific orders by way of disclosure of information, that the husband pay spousal maintenance of $1000 per week, that the husband be restrained from disposing of assets and that there be a single expert witness to value various entities and a single expert witness, in particular C Company, to value real estate. 

2. Today, Mr Apelbaum appears for the wife with my leave.  His principal is Mr Hale, solicitor.  The husband is represented by Ms Nicholls, solicitor.

3. At the callover or shortly thereafter, I was advised that the parties had entered into an arrangement whereby the husband will pay the wife $600 per week spousal maintenance.  I queried, therefore, why the application in a case could not be otherwise dismissed or orders made which satisfied the wife's legitimate claims in respect of disclosure, injunctive relief and expert evidence.  The matter has been stood down variously for the last three hours. 

4. Subsequently, I am advised by Mr Apelbaum that he is instructed that his client is not currently in a position to have the application in a case dealt with and he seeks an adjournment of the application to the conciliation conference which

   
   

   I note has been appointed for 22 February 2008. I have pointed out to Mr Apelbaum that a conciliation conference is not a court event at which any application will be disposed of and the matter can only be listed from that conference.  In this case it would seem inappropriate to list it for determination without making some further provision for the husband to file any documents in response upon which he proposed to rely. 

5. It may be that between now and 22 February 2008, the parties through their solicitors can adjust their claims in relation to disclosure, discovery, injunctive relief and expert evidence.  However, if they cannot, I am concerned that the matter not be placed again in the judicial duty list without there being a certainty that the matter will be ready to proceed.  The application in this matter which comes before me today was filed over a month ago. 

6. The representatives of the parties attended court today in apparent agreement as to some aspects and not ready to proceed in relation to others.  However, it is not open to the parties to simply agree to adjourn the matter to a later date in the judicial duty list.  The judicial list is a limited resource.  

7. I will leave it to the Registrar who convenes the conciliation conference to list the matter in an appropriate list.  I note only that matters in the judicial duty list are here at the expense of other matters which may be ready to proceed, and I would be surprised if the Registrar was not somewhat reluctant to accord these parties a second opportunity without being ensured that the matter would in fact require court time for determination of matters which are not within the powers delegated to Registrars or the Senior Registrar. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  11 December 2007