Rametta and Rametta & Ors
[2020] FamCA 509
•23 June 2020
FAMILY COURT OF AUSTRALIA
| RAMETTA & RAMETTA AND ORS | [2020] FamCA 509 |
| FAMILY LAW – PROPERTY – where wife seeks to set aside a final property order made, by consent, in 2007. In the alternative, an extension of time within which she can review the registrar’s decision to make the final property order from seven days to nearly 13 years. FAMILY LAW – EVIDENCE – agreement to qualify use of evidence so that evidence does not constitute evidence of value or quantity. FAMILY LAW – COSTS – where legal practitioners were ordered not to charge for the parts of the affidavits which had been struck out and within 48 hours advise their respective clients in writing of the quantum by which this disallowance of fees will reduce his/her costs. FAMILY LAW – PROPERTY – where it is appropriate to make order sought under s 79A(1A) of the Family Law Act. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Rametta |
| RESPONDENT: | Mr Rametta B Pty Ltd C Pty Ltd |
| FILE NUMBER: | MLC | 9433 | of | 2017 |
| DATE DELIVERED: | 23 June 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 22 & 23 June 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wilson |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Puckey with Mr Schmidt |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon |
Orders
BY CONSENT IT IS ORDERED THAT:
Discharge of Previous Orders
All extant Orders in these proceedings be, and are hereby, discharged with the exception of the Order made on 22 June 2020 in relation to costs of inadmissible material.
Removal of Third Parties
The Second and Third Respondents be removed as parties to these proceedings.
Variation of 2007 Orders to Transfer Location K to Husband.
Pursuant to section 79A(1A) of the Family Law Act 1975 (“Act”), paragraph 3 of the Orders of this Honourable Court in proceeding number MLC6605 of 2007 made on 16 June 2007 be varied such that the real property known as Location K, Tasmania, more particularly described as the whole of the land in Certificate of Title Volume … Folio … (“Location K”), be transferred to the Respondent Husband and, to give effect this variation, within 30 days, the Applicant Wife do all such acts, and sign all such documents, as are required to transfer to the Respondent Husband, at the Respondent Husband’s sole expense, her right, title and interest in Location K (“Transfer”), and thereafter, the Respondent Husband be liable, and indemnify the wife, for all rates, taxes and other outgoings with respect to Location K, including any rates presently unpaid.
Arrangements Pending Transfer
Pending the Transfer, the Applicant Wife be, and is hereby, restrained from encumbering, or further encumbering, Location K.
Section 106A Order
If, within 7 days of a written request to do so, the Applicant Wife fails, refuses, or neglects, to sign, execute, and/or return, a document required to be signed by her to give effect to these Orders, then a registrar of the Melbourne Registry of this Honourable Court is hereby appointed pursuant to s 106A of the Act to sign, or execute, such document on behalf of the defaulting party.
Costs
Each party bear their own costs in relation to these proceedings (including any previously reserved costs).
It is certified, pursuant to rule 19.50 of the Family Law Rules 2004, that this matter reasonably required the attendance of Counsel for each party.
Dismissal of Extant Applications
All extant applications be, and are hereby, dismissed and this matter be removed from the docket of the Honourable Justice Bennett.
IT IS DIRECTED:
That the signed minute of consent be marked Exhibit “A” and remain on the Court file.
AND THE COURT NOTES THAT the parties intend that these Orders shall, in accordance with section 81 of the Act, as far as practicable, finally determine the financial relationships between them, and avoid further proceedings between them.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rametta & Rametta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: MLC 9433 of 2017
| Ms Rametta |
Applicant
And
| Mr Rametta B Pty Ltd C Pty Ltd |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The parties have resolved their financial litigation on the morning of the second day of the hearing and have sought a final order in agreed terms. [1]
[1] Exhibit “B”
The wife had sought to set aside a final property Order made, by consent, in 2007. In the alternative, the wife seeks an extension of time within which she can review the Registrar’s decision to make the final property order from seven days to nearly 13 years.
On 19 May 2020, I made orders, inter alia, dismissing the wife’s application for litigation funding. My reasons were published under the case neutral citation [2020] FamCA 377. Those reasons contain a short history of the proceedings and, of that purpose, I incorporate those reasons into these reasons.
This final hearing was conducted when restrictions associated with the pandemic were in place and on the Courts’ Microsoft Teams platform.
The affidavit material is extensive and included responses and replies by or in respect of a number of the witnesses who were family members. The wife’s trial affidavit ran to 212 paragraphs with numerous sub-paragraphs including, for instance, sub-paragraphs“189.1.3(a) to (e)”. The husband’s trial affidavit ran to 525 paragraphs again with numerous sub-paragraphs.
The last affidavit filed for the hearing and to which objection was taken was filed on 2 June 2020. Twenty minutes before the matter was due to start on the first day, the husband’s legal practitioner emailed 243 objections to the wife’s material to my Chambers. I was informed that the husband’s objections were the second set of objections received. I required counsel to negotiate and refine the objections. Ultimately, counsel for the husband sought that I rule on 45 objections, 57 objections were conceded by the wife and the remaining 141 objections were proposed by the husband to be dealt by me “in chambers” as I wrote the judgment.
The wife had a more modest set of objections, numbering 13, to the husband’s evidence although some objections covered up to 24 paragraphs.
I informed the practitioners that all objections would be dealt with in Court and, due to the timing of the objections, the commencement of the hearing as to substantive issues would necessarily be delayed. Time was of the essence. Counsel had committed to a trial plan whereby they managed to contain the five day hearing to six days (which I said could be accommodated).
I forewarned counsel that I would consider making costs orders against practitioners as a consequence of the strike out applications. I did so in order that counsel could consider and advise on how to accommodate the potential tension between the client for whom they act being awarded an order against the solicitor from whom counsel receive instructions to act on behalf of the client.
The original affidavits have been replaced with copies in which the objectionable material is excised. Additionally, the parties reached an agreement[2] that the husband would not press objections to some specific evidence led by the wife. Such evidence contained estimates of values or quantities and was not pressed on the basis that the wife relies upon the information contained within those specific paragraphs as proof of the existence of information about which the husband would have known at the time referred to but not as to proof of the values or quantities asserted or implied.
[2] Exhibit “H4”
Following the objection process, I ordered that each practitioner not charge for the parts of the affidavits which had been struck out and within 48 hours advise their respective clients in writing of the quantum by which this disallowance of fees would reduce his/her costs. Neither counsel sought to be heard on that Order.
The minute of order sought by consent provides that the wife transfer the property at Location K to the husband.
The parties consent to an alteration to the minute which makes clear that the costs order made yesterday is not discharged.
I am satisfied that it is appropriate, within the meaning of s.79A(1A) of the Family Law Act 1975 (Cth), for me to make the order sought and I do so.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 June 2020.
Associate:
Date: 25 June 2020
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