Spoke and Spoke

[2009] FamCA 39

FAMILY COURT OF AUSTRALIA

SPOKE & SPOKE [2009] FamCA 39

FAMILY LAW – PROPERTY – Judgment reserved

Family Law Act 1975 (Cth)

APPLICANT: Mr Spoke

RESPONDENT: Ms Spoke

FILE NUMBER: MLF 1437 of 2006

DATE DELIVERED: 21 January 2009

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Connor

SOLICITOR FOR THE APPLICANT: Dawes & Vary Pty

COUNSEL FOR THE RESPONDENT: Litigant in person

Orders

1. That all outstanding proceedings be adjourned to a date to be fixed.

2. That judgment be reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1437 of 2006

MR SPOKE

Applicant

And

MS SPOKE

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Spoke (“the wife”) on the third day of property proceedings that began in this court as long ago as 2006.  The proceedings have had numerous hearings before Watt J and those hearings included various orders involving the appointment of a single expert witness, Mr F.  There were orders also made by Watt J at various stages that a Mr L, who I understand is an accountant, to have a meeting with Mr F and even agree on what the position between the parties should be in relation to the value of the company.  In the end, Watt J made an order that if the wife desired to call an adversarial witness, she should make the appropriate application.

2. A lot of water has passed under the bridge since that time and no such application has been made. Today I am asked to adjourn the proceedings ostensibly for two reasons. One is that there is no evidence, according to the wife, about her medical condition, which she says is not good because she maintains she will not be able to work. That position is entirely inconsistent with what she swore in her affidavit only 11 or so days ago, not to mention the way her summary of argument is also drawn, referring to factors under section 75(2) of the Family Law Act. This is a case where I could see no point in adjourning the proceedings for that purpose because of the fact that ultimately it is my view that, without a spousal maintenance application before me, it seems that there is very limited amount of property to divide up.

3. The second issue she raised was the fact that the company valuation was wrong, and to that extent it seems to me that Mr F’s evidence is probably unhelpful because it is now so far out of date.  Even his methodology cannot be used, having regard to the evidence that I heard last Friday from the company's accountant.  In those circumstances, it seems to me that the only position I have got is one in which the parties have a house worth $725,000 and there is at least, on the face of the books, a liability of the company of $651,000.  That liability to a very large degree is secured by the house.  The wife wants me to adjourn the proceedings so that an audit can be conducted of the company, because she disputes the figures. 

4. There is absolutely no evidence before me that she could afford to do that, nor that anybody would undertake the task without some guarantee of payment.  Having regard to the amount of money involved in this case, it seems to me that it is implausible to even suggest that an audit be undertaken.  Mr Harris, who appeared last Thursday, indicated that the wife was seeking to have an administrator appointed to the company.  That would seem to me not to be a course that I could take at this stage, having regard to the fact that the evidence of the company accountant is such that there is not sufficient funds to warrant that exercise being undertaken.  In the circumstances, I can see no fruitful exercise coming out of an adjournment.  On that basis, the matter can proceed.

I certify that the preceding Four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  2 February 2009