Ritz and Ritz

[2007] FamCA 1729

FAMILY COURT OF AUSTRALIA

RITZ & RITZ [2007] FamCA 1729

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Ritz

RESPONDENT: Mr Ritz

FILE NUMBER: MLF 2644 of 2006

DATE DELIVERED: 25 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 25 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Walmsley SC

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bartfeld QC

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie & Associates

ORDERS

BY CONSENT IT IS ORDERED THAT

1. Pursuant to Section 79(9)(b) the requirement for the parties to attend a Conciliation Conference be dispensed with provided that the parties comply with paragraph 5 and the Conciliation Conference on 13 February 2007 at 9:15am be vacated.

2. The operation of Rule 13.26(3)(b) be dispensed with and each party be entitled to file as many specific questions as may be relevant and not vexatious or oppressive.

3. Within 21 days of this day the Wife serve upon the Husband questions in writing relating to financial matters relevant to the application pursuant to Section 79.

4. The Husband answer any request pursuant to paragraph 3 in accordance with Rule 13.27 within 21 days after service upon him of such questions.

5. The parties attend at a mediation and do all things necessary to appoint Mr Andrew Kirkam, QC as the mediator at a time to be agreed between the parties and the mediator as soon as practicable after the Husband delivers answers to the Wife’s questions.

6. The Husband pay the mediator’s fees and expenses in the first instance and such fees and expenses be shared between the parties by adjustment at the time of the final hearing of the property settlement applications.

NOT BY CONSENT

1. That the Wife’s form 2 Application filed 7 September 2006 and the Husband’s F2A filed 7 December 2006 be dismissed.

2. That all final applications be referred to the Trial Notice Pool.

3. Reserve all questions of costs of this day.

4. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2644 of 2006

MS RITZ  

Applicant

And

MR RITZ  

Respondent

REASONS FOR JUDGMENT

1. After a marriage of approximately 30 years and two adult children, the parties have separated and now bring proceedings for alteration of property interests.  The relevant applications today are on forms 2 and 2A seeking interlocutory relief during the conduct of these proceedings.  The essential remedy sought on behalf of the wife, who is the original applicant today, is for a Mareva injunction in respect of an extensive company in trust structure as well as the husband's practice as an accountant.

2. The case has been extremely well argued by members of Senior Counsel and I have read the affidavits, applications and form 13s filed on each side.  The essential law relating to Mareva injunctions is that the applicant must show a real risk of a diminution of assets such which would prejudice the potential recovery of the fruits of a successful judgment.

3. In my view the material does not go far enough to establish that matter.  In fact in my view the disclosure made to date by the husband and the single expert witness report of Mr Monday which I have only had the opportunity to skim, establishes that there is very significant disclosure being made and a further disclosure needs to be made.  There is a conciliation conference in the next few weeks and in the mean time questions of case management become relevant.

4. Paragraph 1 of the form 2 application of the wife essentially in my view seeks an order that the husband do all things necessary which he is required to do in compliance with the law in conducting the various entities relevant to these proceedings I am not satisfied that there is anywhere near the evidence to suggest that there is any danger that he is not doing so, and likewise with the Mareva injunction applications the case has simply not been made out on that basis. 

5. Accordingly the applications on forms 2 and 2A will be dismissed.

6. All costs should be reserved.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  May 2009