Rocco and Obart

[2019] FCCA 229

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROCCO & OBART [2019] FCCA 229

Catchwords:
FAMILY LAW – Underestimation of hearing time when matter listed for hearing for one (1) day – non-compliance with court orders – requirement for adjournment – order accordingly.

Applicant: MR ROCCO

Respondent: MS OBART

File Number: BRC 1736 of 2016

Judgment of: Judge Egan

Hearing date: 29 January 2019

Date of Last Submission: 29 January 2019

Delivered at: Brisbane

Delivered on: 29 January 2019

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr Selfridge

Solicitors for the Respondent: Freeman Lawyers

ORDERS

IT IS ORDERED:

1. That the matter be listed for a final hearing for not less than two (2) days with priority on a date to be advised by the listing Judge in the Federal Circuit Court of Australia at Brisbane.

2. That the Applicant pay to Freeman Lawyers Trust Account the sum of $1,500 on or before 12 February 2019.

3. That the costs of and incidental to the hearing today (29 January 2019) be reserved.

4. That for the purpose of carrying out the valuations by Real Estate Agent of the Property A, Property B and Property C Properties:

   (a)The Respondent shall be responsible for ensuring that the Property C and Property A Properties are well presented in all respects at the time of inspection by a valuer from Real Estate Agent; and

   (b)The Applicant shall be responsible for ensuring that the Property B Property is well presented in all respects at the time of inspection by a valuer from Real Estate Agent.

5. That any further Affidavit or Financial Statement be filed and served no later than fourteen (14) days prior to the adjourned hearing date.

6. That each party have liberty to apply on the giving of two (2) days’ notice, each to the other.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1736 of 2016

MR ROCCO

Applicant

And

MS OBART

Respondent

REASONS FOR JUDGMENT

1. By order of her Honour Judge Turner made on 29 October 2018 this matter, which had been listed for hearing that day, was adjourned for final hearing for not more than one day on a date to be advised in the Federal Circuit Court of Australia at Brisbane. 

2. On 1 November 2018 this matter was listed before His Honour Judge Lapthorn who ordered, consonantly with the order of Judge Turner, that the matter be adjourned to 9.30 am on 29 January 2019 for final hearing with priority, allocating one day for such hearing.  Order 2 of the order of Judge Turner made on 29 October 2018 was as follows:

   2. That proximate to the date of trial the parties jointly engage Real Estate Agent to provide updated valuations in respect of the real properties at Property A, Property B, and Property C, with the applicant to pay the costs of the valuations in the first instance and the respondent to reimburse the applicant half of the costs at the conclusion of proceedings.

3. It is apparent that the parties, notwithstanding the making of the order for the obtaining of valuations, have not jointly participated in such exercise.  Complaint was made on behalf of the respondent, by Mr Selfridge of counsel, that the applicant, who is now self-represented, was intransigent in terms of facilitating the engagement of a valuer to carry out the valuations as ordered.  He also referred to what were said to be agreements between the parties as to values of those three properties for the purposes of the previous hearing. 

4. Though there might have been agreement as to valuations for the purposes of the previous hearing, it would seem apparent that notwithstanding such agreement, Her Honour was minded to make the order providing for updated valuations in respect of the three relevant properties.  That the order was so made suggested that there was no agreement in respect of the valuation of those properties for the purposes of any subsequent hearing.  In any event, the valuations as ordered have not been obtained, and, as was briefly submitted by the applicant, the valuations of the respective properties could have changed in a significant way since the time of last valuation. 

5. That is one reason why this matter is not able to proceed today.  The second reason is that the parties have indicated that between them there are six witnesses to be called.  The applicant does not have legal representation today, though he says that he intends to obtain legal representation as soon as possible.  Irrespective, however, of whether the applicant is legally represented or not, this court does not consider that this matter was ever likely to conclude in one day, thereby necessitating that the matter would be required to be part heard and adjourned off to another date. 

6. The difficulties associated with such a course are self-evident.  The applicant has additionally indicated today that he is soon due to consult a psychologist, which is another reason why the matter ought to be adjourned.  It is likely that the matter will be listed for hearing within a two or three month period, and it is hoped that the applicant will be well able to participate in a hearing at that time.  That would be a matter, of course, for the trial judge. 

7. The cost of the valuations of the three properties was said by Mr Selfridge’s instructing lawyer to be $3,000.00 if obtained from Real Estate Agent Valuers, that firm being the valuation firm ordered to conduct the valuations by her Honour Judge Turner.  The parties have agreed to jointly fund the cost of obtaining of such valuations. 

8. Payment of the sum of $1,500.00 will need to be made by the applicant to the trust account of the respondent’s instructing solicitors so as to enable payment to be made to Real Estate Agent.  It is regrettable that this matter, for a number of reasons, is unable to commence being heard and determined as a final hearing.  The matter should be listed with priority for hearing as soon as possible.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date:  6 February 2019