SELIM & SELIM

[2014] FamCA 797

FAMILY COURT OF AUSTRALIA

SELIM & SELIM [2014] FamCA 797

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of final trial as to property by wife – consideration of circumstances leading to application – non-complex property issues – husband entitled to have proceedings heard and determined – application refused – time for wife to file trial affidavits extended.

APPLICANT: Ms Selim

RESPONDENT: Mr Selim

FILE NUMBER: PAC 4152 of 2013

DATE DELIVERED: 16 September 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Taylor & Scott Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: McAuley Hawach Lawyers

Orders

1. The Application in a Case filed on 9 September 2014 seeking to vacate the trial dates is dismissed.

2. The Wife file and serve one consolidated affidavit of her evidence in chief and one affidavit from each of the witnesses upon which she relies in support of the orders sought by her with such affidavits to be in compliance with Rule 15.12 of the Family Law Rules 2004, an updating financial statement and amended application if appropriate by no later than Friday 26 September 2014.

3. In default of the Wife’s compliance with orders as to filing consideration be given to the matter proceeding on an undefended basis on 30 September 2014.

4. The costs of the Husband in relation to the Application in a Case that has been dismissed be reserved to trial.

5. By no later than 4:00pm on 19 September 2014 the parties forward to the Single Expert valuer a request for an updated valuation of the matrimonial home informing the Single Expert that the matter is listed for trial commencing 30 September 2014.

6. The Respondent Husband in the first instance pay the costs of the Single Expert for that valuation and that any contribution towards that cost for the Wife be reserved to trial.

7. The Husband by no later than 26 September 2014 file and serve a short affidavit as to the financial circumstances of his cohabitation with his present partner Ms B.

8. Proceedings are adjourned to 10:00am on Tuesday 30 September 2014 for trial before Justice Johnston.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selim & Selim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4152 of 2013

Ms Selim

Applicant

And

Mr Selim

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application in a case filed on 8 September 2014 by the applicant wife in the proceedings seeking an adjournment of the trial which is fixed to commence on 30 September 2014 for three days.  Otherwise orders are sought by the wife that the final hearing be adjourned to 8 December 2014 on which date it appears there is a possibility the matter could be listed as reserve trial on 8 and 9 December only.  Otherwise the wife sought consequential orders extending time for her to file documents in relation to the hearing.

2. The wife relies upon her affidavit filed 8 September 2014 in support of the application. 

3. Proceedings were commenced in 2013 and a conciliation conference was listed in the matter on 28 February 2014.  On that date the conciliation conference was adjourned.  The conciliation conference reconvened on 4 April 2014.  The matter was not settled on that day and at that stage there were various issues in relation to non-disclosure, dispute as to the valuation of the husband’s property in Egypt, an issue in relation to the mortgage secured against the Suburb C property not being serviced.

4. The matter was adjourned on 4 April 2014 to the judicial trial list and came before the Court on 16 June 2014.  On that date the applicant was represented by her solicitor, Mr Carbone.  The respondent husband on that date was represented by Mr Hawach, solicitor. With the consent of the parties, the Court made usual directions for the matter to proceed to trial.  The parties were granted leave to approach the list clerk for allocation of trial dates.

5. There is no issue that the respondent husband has complied with trial directions and for his part the Court is informed today by Mr Dura of counsel on his behalf, the husband is ready to proceed to trial subject to an outstanding issue in relation to an updated valuation of the matrimonial home at Suburb C.

6. The wife complains in her affidavit that there has been some form of failure in communication between herself and her solicitor. She annexes to her affidavit a copy of the letter from the Court dated 16 June 2014 advising the husband’s solicitors as to the trial dates on 30 September 2014 and complains that she has received no such letter.  It is appropriate to infer that a similar letter of notification was forwarded to her former solicitors but at this stage the wife does not have the file held by her present solicitors.

7. Various orders were made for disclosure on 16 June 2014 and the Court has been informed today that substantially those disclosure orders have now been complied with.  No doubt, as a consequence of that there is material that will provide fuel for cross-examination at trial. 

8. The wife complains that she had significant problems with her previous lawyers throughout the life of their retainer, particularly in relation to her not being informed about the progress of the matter and filing various material late.

9. Subsequent directions made on 16 June the wife, probably for good reason, sought to retain new solicitors and on 29 August 2014 her new solicitors filed a notice of address for service. She has instructed Taylor & Scott Solicitors and Mr Youssef, solicitor, appears on her behalf today.  Mr Youssef says that he has managed to collect much of the file from his client’s previous lawyers. 

10. Why the wife has not simply collected her whole file seems to be contingent upon some outstanding costs issue between the wife and her former lawyers to which she apparently owes $8000 which she plans to dispute.  There is no reason why she would not be able to collect her file on the basis that any issue as to costs between herself and her former lawyers be a charge against any entitlement to property she may have on some agreed basis, but that does not appear to have happened.

11. The issues between the parties for determination are only as to property. 

12. They relate to a marriage of some 26 years with the parties commencing cohabitation in August 1986 and separating in May 2012.  There are five children of the relationship.  The youngest two children are presently aged 14 and 13 and the other older children are all over the age of 18 years.

13. The matrimonial pool as demonstrated by the draft balance sheet marked MFIA by the Court previously and marked as Exhibit A in the context of this present application, reveals a simple property pool.  A matrimonial home at Suburb C, a property in Egypt owned by the husband where there is an agreement as to value, motor vehicles, small sums of money at bank, furniture and contents. 

14. There are some issues in relation to monies withdrawn by the wife from a mortgage account.  That will be a matter for examination and determination at trial and a further issue in relation to monies withdrawn from her various bank accounts in the last 18 months or so. That also is a matter for cross-examination at trial although the wife, knowing they are issues, should be able to deal with those in the context of her trial affidavit.

15. There is an outstanding mortgage on the property which subsequent to separation has not been paid by the parties and has escalated by over $100,000 since separation and now stands at some $790,000 approximately.  The wife has a credit card she seeks to insert into the matrimonial pool.  No doubt she has the credit card statements and they may evidence that the monies on that credit card are matrimonial in nature.

16. The Court is informed today that there are also significant outstanding arrears in relation to council and water rates in relation to the matrimonial home that the wife has occupied now for almost two and a half years to the husband’s exclusion, and in that period it appears she has paid not one cent in relation to the outstanding mortgage.  Otherwise both parties have modest superannuation entitlements that are similar in quantum.

17. The Court in allocating trial dates is facilitating a significant resource to the parties in circumstances where this matter is listed for two days plus for hearing.  The Court is mindful that the wife makes complaints about her former solicitor.  That is a matter that she can take up somewhere else should she deem it appropriate. 

18. However, the proceedings have been listed for trial since dates were allocated by the list clerk in June 2014. 

19. The husband has complied with his obligations in relation to filing and there has been correspondence between the parties’ solicitors in relation to the forthcoming trial, particularly in relation to an updated expert valuation in relation to the matrimonial home. 

20. There is no reason why that valuation should not be undertaken.  It is a fairly simple process.

21. There is no reason advanced as to why the wife would not be able to file her trial affidavit in the event that an extension of time is permitted.

22. In all of the circumstances and having regard to the significant allocation of resources by allocating this matter for trial as it has been, and the fact that the matter has only a prospect of being a reserve matter on 8 and 9 December and otherwise the matter is unlikely to be reached on a final trial basis until February or March 2015 the Court is not mindful to grant the wife’s application for adjournment.

23. The husband is entitled to have the matter determined without further delay.

24. In these circumstances the application in a case filed on 8 September 2014 seeking to vacate the trial dates is dismissed. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 September 2014.

Associate: 

Date:  16 September 2014