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

Orders 20 to 22 (inclusive) of the orders dated 29 June, 2018 are discharged.
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.
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.
Any mediation shall be completed no later than 26 February, 2019.
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.
Each party provide to the mediator copies of all documents filed by each party no less than seven (7) days prior to the mediation.
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.
The parties shall agree with the mediator the fees for the mediation and the terms of payment thereof.
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).
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.
The applicant prepare and provide a schedule to the mediator and a copy thereof to the respondent no less than seven (7) days…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maassen and Maassen

Details

AGLC: Maassen and Maassen [2018] FCCA 3683
Case: [2018] FCCA 3683
Decision Date: 29 October 2018

CaseChat Overview and Summary

In the matter of *Maassen and Maassen*, Judge Jarrett of the Federal Circuit Court of Australia considered orders relating to a dispute between the parties concerning property adjustment. The proceedings involved the appointment of a court expert and the parties' participation in mediation.

The court was required to determine the terms of expert evidence, the process for mediation, and the disclosure obligations of the parties in preparation for that mediation. Specifically, the court needed to address the appointment of a psychiatric expert, the timing and conduct of mediation, and the provision of various documents and information to the mediator and the other party.

Judge Jarrett ordered the discharge of previous orders and appointed Dr B as a court expert to prepare a psychiatric opinion of the respondent, with the costs to be borne by the applicant. The parties were directed to attend and participate genuinely in mediation regarding property adjustment, with their attendance at a conciliation conference excused. The mediation was to be completed by 26 February 2019, with the mediator to be agreed by the parties or appointed by the Court. Extensive disclosure obligations were imposed on both parties, including the provision of documents to the mediator and the other party, compliance with superannuation regulations, and the preparation of a property schedule. The matter was adjourned for further directions.

Orders

Orders of the court

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

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.

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.

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

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.

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

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.

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

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

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

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;”

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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