STONEY & STONEY

[2012] FamCA 132

FAMILY COURT OF AUSTRALIA

STONEY & STONEY [2012] FamCA 132

FAMILY LAW – PROPERTY - Section 79 property proceedings – Leave granted to wife’s Counsel to recall client and give further evidence in chief

Family Law Act 1975 (Cth)

APPLICANT: Ms Stoney

RESPONDENT: Mr Stoney

FILE NUMBER: MLC 7569 of 2010

DATE DELIVERED: 8 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 8 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Adrian Abrahams Family Lawyers

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7569 of 2010

Ms Stoney

Applicant

And

Ms Stoney

Respondent

REASONS FOR JUDGMENT

1. I have before me in the course of conducting the trial in this matter, an application made by counsel for the wife.  The application is that he be permitted to recall his client and that her evidence in chief which has now been given, and her case in that regard is before the Court in final form – that nevertheless he have his client recalled for the purposes of giving evidence of and related to her occupation at Suburb M, her desire for ownership of that property, and for that property to be awarded in specie to her in the final order sought.

2. The history of the wife’s application is that initially she sought a somewhat vague order pursuant to section 79 for a just and equitable settlement of property, but without specifying ownership of Suburb M to be her primary requirement.  In her amended application filed shortly prior to the commencement of this case that particular application was made and her case rests upon the sole ownership of that property being transferred from the name of her husband, in which it is currently registered, into her name.

3. Conversely, Ms Stoikovska of Counsel for the husband opposes both that application and any recall of the wife to give evidence.  The husband’s case now details, in his amended response, that he retain Suburb M.  That was not the case in his initial response where he particularised no such order.  The lack of particularity in the initial application is not unusual in this Court.  Both parties effectively sought a just and equitable division of assets, albeit that they had some specified claim as to what each of them expected in percentage entitlement.

4. The case has meandered along over several days, and the wife is still in cross-examination.  The husband is yet to give any evidence.  The wife’s case is thus not closed.  Mr Wilson has advised the Court that he has prepared or overseen a proof of evidence as to what the wife would say if given leave on the question of why she wishes to retain not merely possession but now ownership of Suburb M.

5. On behalf of the husband the position has been made known that although he seeks to retain ownership of that property, he nevertheless would, in the alternative, seek the sale of all real property – that is, both Suburb M and the three properties in Suburb E – and the division of those proceeds of sale along with the other assets and the superannuation would form the basis of final orders sought. 

6. Mr Wilson has both fairly and candidly put to the Court that the wife’s failure to give evidence was an oversight, both on her part and on the part of her legal practitioners, both in drafting the affidavit, and more particularly, in the conduct of the case.

7. The submission of Mr Wilson is that the Court should do what is just and there can be no inconvenience to the husband as his Counsel is continuing to cross-examine the wife, and thus, upon the proof of evidence produced, that cross-examination can cover matters that have always been central to this case, that is the ongoing ownership of Suburb M.

8. Ms Stoikovska’s objections on the instruction of the husband are not so much tactical, but on the basis that the wife has had her opportunity, the case should not be further interrupted, the husband is entitled to both answer himself in evidence and have his counsel cross-examine the wife on matters that are in her affidavit or her evidence.  It is therefore submitted that it would be an unjust outcome to allow any reopening of evidence.

9. There clearly is a level of merit in both submissions.  On balance, I will allow the application.  I do so because the evidence is somewhat contained, it can be given in a limited framework of less than half an hour and Ms Stoikovska is in a position to cross-examine the wife, as she has knowledge both of what she will say and, more particular, has her client’s instructions on the value to him, both financially and emotionally, for he and the son, B, to return to live in Suburb M.

10. I am unsure if the parties have considered the adult children in making this application.  Likely, they are both concentrating on their own personal scenario and what is best for them.  I take this opportunity to very clearly highlight that a real option in this case is to sell all property, including Suburb M.  When it is so keenly sought by each of them, a sale, with each of them having the right to bid at auction, might be a reasonable and just opportunity.

11. Whilst the Court is never backward in making decisions the sentimental value or personal desire to live in a home is a factor that is difficult to evaluate, and thus it may be in the wider picture of this case, unless for any reason I conclude that one party would be significantly disadvantaged in obtaining finance or in endeavouring to purchase the property, that is an option that I could conclude is fairly and squarely on the table.  It was foreshadowed by the husband’s counsel previously.

12. I well understand it is opposed by the wife, who simply wants ownership of the property, but this case is almost wholly focussed by the parties and their practitioners on Suburb M.  I have allowed, somewhat at the convenience of the Court, the parties a day yesterday to discuss these matters, and I am advised this morning that the discussions were unsuccessful, although they did edge closer to a settlement.  There clearly are issues in dispute, and no doubt, the desire of these parties to either own Suburb M or to stop the other party owning Suburb M are very much to the fore.

13. Thus, at a convenient time, I will allow the wife to be recalled and give evidence as to the limited issue of Suburb M, her desire to own and retain ownership, and therefore, continual possession of that property.  Of course, she can be cross-examined at large on any and all issues, as she is still under cross-examination. 

14. I will have these ex tempore reasons delivered without leaving the bench, transcribed and placed upon the court file, and they will be available to the parties as soon as practicable, and will form part of the overall decision-making in this case and thus be available for the Court of Appeal. 

I certify that the preceding fourteen
(14) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 8 March 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………