Maassen and Maassen

[2018] FCCA 3683

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAASSEN & MAASSEN [2018] FCCA 3683

Catchwords:
FAMILY LAW – Family Law Act 1975 (Cth) and related legislation – application to discharge order for arbitration – Power to discharge order for arbitration.

Legislation:

Family Law Act 1975 (Cth), s.10E

Federal Circuit Court of Australia Act 1999 (Cth)
Federal Circuit Court Rules 2001 (Cth), pt.27, r.10.03

Applicant: MS MAASSEN

Respondent: MR MAASSEN

File Number: BRC 5421 of 2018

Judgment of: Judge Jarrett

Hearing date: 29 October 2018

Date of Last Submission: 29 October 2018

Delivered at: Brisbane

Delivered on: 29 October 2018

REPRESENTATION

Solicitors for the Applicant: Cornerstone Law Offices

The Respondent appeared in person

ORDERS

1. Orders 20 to 22 (inclusive) of the orders dated 29 June, 2018 are discharged.

2. Dr B is hereby appointed a court expert pursuant to rule 15.09 of the Federal Circuit Court Rules 2001 (Cth) for the purpose of preparing a psychiatric opinion of the respondent and for the costs of that report to be borne by the applicant.

3. The parties are directed to attend, participate in and act reasonably and genuinely in mediation in respect of issues regarding property adjustment and for that reason the Court has excused their attendance at a conciliation conference pursuant to s.79(9) of the Family Law Act 1975.

4. Any mediation shall be completed no later than 26 February, 2019.

5. The mediator shall be agreed between the parties.  The parties shall notify the Associate to Judge Jarrett of the identity of the agreed mediator within fourteen (14) days of the date of these orders. If no such notification is received the mediator shall be appointed by the Court in Chambers and notified to the parties.

6. Each party provide to the mediator copies of all documents filed by each party no less than seven (7) days prior to the mediation.

7. The parties shall contribute equally to the fees of the mediator in the first instance but that the ultimate incidence of those fees be reserved to trial.

8. The parties shall agree with the mediator the fees for the mediation and the terms of payment thereof.

9. At least twenty-eight (28) days prior to the mediation both parties must comply with the provisions set out in Part VIIIB of the Family Law Act 1975 and the Family Law (Superannuation) Regulations, in particular:

   (a)file and serve a Superannuation Information Form (SIF);

   (b)specify any orders sought in relation to any superannuation interest; and

   (c)afford procedural fairness to any superannuation fund trustee (by serving the relevant application/response).

10. Each party shall provide to the other a copy of the following documents no less than twenty one (21) days prior to the mediation:

    (a)the documents detailed in Attachment A hereto;

    (b)the documents upon which they intend to rely in the proceedings; and

    (c)documents in their possession (subject to a claim of privilege) adverse to their claim in these proceedings.

11. The applicant prepare and provide a schedule to the mediator and a copy thereof to the respondent no less than seven (7) days prior to the mediation that:

    (a)identifies the agreed property and superannuation interests of the parties;

    (b)identifies the alleged property that is not agreed including any alleged “add backs;”

    (c)identifies the liabilities that are agreed should be taken into account and those that are not agreed; and

    (d)identifies the valuations that are agreed and those that are not agreed.

12. The application is adjourned to 27 February 2019 at 9:30am for directions.

IT IS NOTED

1. The respondent is to attend upon Dr B on a date to be organised and agreed between the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5421 of 2018

MS MAASSEN

Applicant

And

MR MAASSEN

Respondent

REASONS FOR JUDGMENT

1. This is an application to have the Court discharge an order for arbitration that the Court was asked to make because the parties agreed that the matter should go to arbitration. The order was made on 29 June by a registrar. The arbitration is one which falls within s.10E of the Family Law Act 1975 in that it was an arbitration that was ordered by the Court, not a financial arbitration which is differently defined in the Act as being an arbitration to which the parties agree and which is not the subject of an order of the Court.

2. Both parties applied for the order for an arbitration to be discharged. I was curious as to the power that the Court has to discharge the order. Neither party has by their written submissions identified that the Court has power. The father’s submissions point to part 27 of the Federal Circuit Court Rules 2001, but, of course, those parts of the Federal Circuit Court Rules do not apply. They expressly say that they do not apply in proceedings under the Family Law Act. The wife’s argument is more broadly based, suggesting that given the Court plainly has power to order arbitration if the parties agree, once their consent to the arbitration is withdrawn, one or other of the parties withdraws their consent to the arbitration, then the order for arbitration must fall.

3. I do not agree with that proposition, and, indeed, there are a great many cases in the commercial arbitration field which tend to suggest where one party withdraws his or her consent to an arbitration – or its consent to an arbitration – there may then be litigation to force the arbitration. But be that as it may, the position under the Family Law Act may be different to the position that applies in a commercial arbitration atmosphere.

4. The fact that part 27 of the Federal Circuit Court Rules provides that the Court might bring an arbitration to an end at any time is an indication that there is an intention on the part of at least the judges of this Court who exercise the rule making power under the Federal Circuit Court of Australia Act 1999 to give the Court a power to bring an arbitration to an end in circumstances that the Court considers appropriate, and whilst that rule does not apply to these proceedings, by analogy, one might think that exercising the more general powers set out in r.10 of the Federal Circuit Court Rules, the Court might nonetheless order that an order for arbitration be discharged, particularly in circumstances where both parties seek it. That is the course I propose to take here. The order of 29 June, 2018 insofar as it relates to the parties attending an arbitration with Mr C will be discharged.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 18 December, 2018