Percival and Percival

[2007] FamCA 475

FAMILY COURT OF AUSTRALIA

PERCIVAL & PERCIVAL [2007] FamCA 475

FAMILY LAW - PROPERTY SETTLEMENT - Review of orders made by Registrar - Conciliation conference

APPLICANT: MRS PERCIVAL

RESPONDENT: MR PERCIVAL

FILE NUMBER: MLF 3297 of 2006

DATE DELIVERED: 10 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 10 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms C.J. Jenkins

Orders

1. That the wife's application filed 12 April 2007 shall be and is hereby dismissed.

2. That the conciliation conference booked on 15 May 2007 shall be vacated and adjourned to 11 am on 7 June 2007, so both parties must attend that.

3. That the wife shall pay the husband's costs of this application, fixed at two hours at the scale rate for a solicitor.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as PERCIVAL and PERCIVAL.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3297 of 2006

MRS PERCIVAL

Applicant

And

MR PERCIVAL

Respondent

REASONS FOR JUDGMENT

1. In this case there are property proceedings on foot.  They are issued by the husband.  It is early in the life of the case, but things seem to be going off the rails to some extent. 

2. On 22 January this year the wife failed to attend the Case Assessment Conference which was then adjourned to 14 February.  The wife did not appear on that adjourned date.  The Registrar made orders listing the case to a Conciliation Conference on 23 April, and for the sharing of various fundamental pieces of financial information. 

3. On 12 April the wife filed an application seeking a review of the Registrar's orders of 14 February.  She did not appear at the Conciliation Conference on 23 April. Yesterday, by way of fax to the court and the other party, she produced what she has called “additional information”, in which she appears to be seeking a review also of the orders of 23 April. 

4. It is very difficult to understand precisely what the wife is complaining about.  There are several themes.  The first is that there should be no case at all because her husband had told her previously that she could retain the former matrimonial home.  I have attempted to explain to her today that it is a matter that she can raise in the course of conciliation or in the course of any subsequent trial. 

5. The second theme appears to be that there should be no proceedings because there has not been mediation, and the wife is insistent that there must be mediation.  I have tried to explain to her that mediation is not compulsory.  The husband through his legal representative has said that mediation is not appropriate in this particular case, but he is more than willing to attend the Conciliation Conference that the court has been endeavouring to arrange.  I have tried to explain to the wife how important it is to attend, as the first step in discussing the issues she raises. 

6. The wife’s material is confused and confusing.  I can see, from correspondence, and from what has been said in court today, that the husband's solicitor has appropriately tried to encourage the wife to arrange her own legal representation.  Certainly, from what she says today, it is not that there is any financial or other impediment to her doing so, but she seems to have her own reasoning as to why she will do that later rather than sooner.  As I have explained to the wife, although I am not able to compulsorily require that she arrange legal representation, I can certainly indicate to her that, rather than arranging it later, she might profit from arranging it sooner, so that she gets a fundamental understanding of the steps that now need to be taken so that she can set about trying to achieve what she wants to achieve from this property settlement. 

7. I have looked at the wife’s material.  Even if I put to one side the confusion, and the wife’s patent swipes at the husband’s legal practitioners, the court system, and the entire system of justice, and try to look for the substantial material, there is nothing in the application filed by her on 12 April 2007 which in any way persuades me that the orders of 14 February were wrong or should be altered, and her additional information provided yesterday takes the matter no further.   

8. Although I am prepared to be flexible and practical as I am entitled to be under the Rules, and not take issue with the fact that there is no appropriate affidavit or sworn material, I find that on the material before me there is no reason at all to undo the basic and practical orders made by a Registrar to ensure that the case is able to be dealt with by way of a Conciliation Conference.  I urge the wife to get advice so that she understands that is a very useful step for her, as well as the husband. 

DISCUSSION

1. The solicitor for the husband has sought costs in this case. Section 117 of the Family Law Act deals with the question of costs. Generally each party bears his or her own costs. However the court has the discretion to make an order for costs, bearing in mind the matters set out in s 117(2A) of the Act. For the reasons I have given earlier today, I am satisfied that this application is brought without merit and there should be costs paid by the wife.

2. In trying to take into account her financial position, I am not assured that I can entirely rely on what the wife has said from the bar table, because there appear to be some anomalies in it.  She did tell me she received no income at all, but then she tells me of the expenses that she is handling.  She tells me that she is studying full‑time, but she then tells me about the business that she is keeping alive.

3. I am satisfied that I should make an order for costs.  I am satisfied that I can fix the amount because what has been sought on behalf of the husband is entirely reasonable.  Ms Jenkins seeks less than that to which she would be entitled on Scale, on the basis that it is more practical than going through the expensive process of taxation. 

4. The orders I make are as follows:

   1.That the wife's application filed 12 April 2007 shall be and is hereby dismissed.

   2.That the conciliation conference booked on 15 May 2007 shall be vacated and adjourned to 11 am on 7 June 2007, so both parties must attend that.

   3.That the wife shall pay the husband's costs of this application, fixed at two hours at the Scale rate for a solicitor.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  10 May 2007