TANAKA & OGILVIE
[2011] FMCAfam 397
•4 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TANAKA & OGILVIE | [2011] FMCAfam 397 |
| FAMILY LAW – Maintenance – De facto relationship – interim maintenance – lump sum interim maintenance. FAMILY LAW – Property – application for interim property order – whether just and equitable – declaration of a de facto relationship. PRACTICE & PROCEDURE – Hearsay evidence – admission of hearsay evidence – interlocutory application. PRACTICE & PROCEDURE – Conciliation conference – where parties did not attend Conciliation Conference. |
| Evidence Act 1995 (Cth), s.75 Family Law Act 1975(Cth), ss.4AA, 77, 90RD, 90RG, 90RH, 90SB, 90SD, 90SE, 90SF, 90SG, 90SK, 90SL, 90SM, 90SS Family Law (De Facto Financial Matters and Other Measures) Act 2008 (Cth), Sch.1 Part 1 Federal Magistrates Act 1999 (Cth), ss.22, 23 |
| Applicant: | MS TANAKA |
| Respondent: | MR OGILVIE |
| File Number: | SYC 4093 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 April 2011 |
| Date of Last Submission: | 28 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Graves/Mr Coffey |
| Solicitors for the Applicant: | Gells Lawyers |
| Solicitors for the Respondent: | Andrew A. Torok |
ORDERS
DECLARATION that a de facto relationship existed between the applicant and the respondent from 2006 until December 2009.
Order 7 made on 5 July 2010 is vacated.
By way of partial adjustment of property interests of the parties the respondent is to transfer to the applicant the title to the Jayco caravan standing in the joint names of the parties within one (1) month of the date of these Orders.
For the purpose of giving effect to Order (3) above the respondent is to deliver the said caravan to the applicant or her nominee at a location nominated by the applicant being not more than twenty-five (25) kilometres from the respondent’s residence within six (6) weeks of the date of these orders.
By way of partial adjustment of property interests between the parties the respondent is to pay to the applicant the sum of NINE THOUSAND DOLLARS ($9,000.00) within one (1) month of the date of these Orders.
The parties are referred to a Conciliation Conference before a Registrar at a date to be fixed by the Court.
The parties must make full and frank financial disclosure of their financial disclosure by serving on each other copies of the documents listed in Rules 24.03 and 24.04 no later than fourteen (14) days before the date of the Conference.
The parties must exchange market appraisals or valuations of any asset the value of which is in dispute no later than ten (10) days before the date of the Conference.
The solicitors for the parties must forward to the Registrar a Conciliation Conference Document no later than seven (7) days before the date of the Conference.
IT IS NOTED that publication of this judgment under the pseudonym Tanaka & Ogilvie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4093 of 2010
| MS TANAKA |
Applicant
And
| MR OGILVIE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim maintenance. The applicant in her Application in a Case filed on 30th June 2010 seeks the following orders:
a)That the Respondent pay to the applicant the sum of $400.00 per week by way of interim spouse maintenance pending further order.
b)In the alternative to (a) above the Respondent pay to the Applicant the sum of $10,000.00 by way of lump sum interim spouse maintenance.
c)That the Respondent pay the Applicant’s costs of this application.
The respondent filed a Response on 5th August 2010 in which he only sought final orders, being:
a)A declaration that the parties lived in a bona fide domestic relationship for a period between 2006 and 2009 as defined in s.4AA of the Family Law Act 1975.
b)That the respondent pay to the applicant within forty two (42) days of the date of these orders the sum of $50,000.00 to be held in trust for her ongoing maintenance and support.
c)Declare that otherwise each party is the sole and beneficial owner of all other items of property in their respective possession custody or control, including but not limited to superannuation entitlements.
d)That the applicant pay the respondent’s costs of these proceedings.
The respondent filed a Response to an Application in a Case on 1st February 2011 seeking these orders;
1. That the Orders sought by the applicant be dismissed.
2. That the applicant pay the costs of this application.
Background
The applicant was born [in] 1950. She has recently turned 61. The respondent was born [in] 1936 and is therefore 74 years of age.
The applicant deposes in her affidavit made on 9th June 2010 that she lived in a domestic relationship as husband and wife with the respondent from approximately the middle of 1994 until December 2009.[1] The respondent claims in his affidavit of 4th August 2010 that he met the applicant in 1998 but they did not enter into a de facto relationship until 2006:
In 2006 the applicant and I commenced a de-facto relationship and we received a joint pension in retirement. We separated in December 2009.[2]
[1] Affidavit of Ms Tanaka 9.6.2010 at paragraph [6]
[2] Affidavit of Mr Ogilvie 4 .8.2010 at paragraph [10]
The applicant deposes that she contributed to the relationship in the ways normally expected of a spouse:
All of the years I was married to [Mr Ogilvie] I was an included, valued and respected member of the family. I contributed to the family in all the normal ways expected of a loving wife, step-mother and a grandmother.[3]
[3] Affidavit of Ms Tanaka 9.6.2010 at [15]
She now claims that her health is such that she is unable to work to support herself. She had been living in a caravan from the time of her separation from the respondent. She deposes that:
I have had no money to cover basic medical and essential medications. I have not been able to afford to pay for my annual flu injection…
37. I have been forced into depending on various organisations to provide me with food and sufficient warm clothing for my survival.[4]
[4] Ibid at [36]-[37]
The applicant now seeks a lump sum by way of interim maintenance or as an interim adjustment of property settlement in order that she may have surgery for a hip replacement because she suffers from severe hip arthritis.
On 30th June 2010 applicant filed an application for property settlement and a declaration that the parties lived together in a bone fide domestic relationship for a period between 1994 and December 19 2009 as defined in s.4AA of the Family Law Act 1975. The application included an application for interim maintenance orders. The applicant also filed on that day an Application in a case seeking those same interim orders.
The respondent filed a Response on 5th August 2010, seeking a declaration that the parties lived in a bone fide domestic relationship for a period between 2006 and December 2009 as defined in s.4AA of the Family Law Act 1975 and seeking other final property orders. The Response was silent as to the interim orders sought by the applicant.
The respondent filed a Response to the applicant’s Application in a Case on 1st February 2011, seeking that the interim application be dismissed with costs.
The first court date for the application was 5th July 2010, on which date the parties entered into interim consent orders providing that:
a)The applicant was to file and serve a Financial Statement by 19th July 2010;
b)The respondent was to file and serve his Response, Financial Statement and Affidavit by 31st July 2010;
c)The respondent agreed to place his Jayco caravan on the market and the proceeds of sale were to be held in trust pending the conclusion of the proceedings or further order; and
d)The parties were to attend a Conciliation Conference before a Registrar of the Court.
The Court made directions for the conference, which was set for 2:15pm on 21st September 2010.
The Conciliation Conference did not take place on 21st September 2010, as the respondent was in hospital. The Registrar listed the matter for mention before the court on 11th October 2010.
On 11th October counsel for the applicant and the solicitor for the respondent appeared. The application was adjourned to 9th November 2010 for further mention.
On 9th November 2010 counsel for the applicant and the solicitor for the respondent mentioned the matter before the Court. On that date I made the following Orders:
1. The applicant is to file and serve any affidavit material relating to her medical condition within 14 days.
2. The Respondent is to file and serve any affidavit relating to his medical condition and any other relevant matter within 28 days.
3. The Application is adjourned to Wednesday 15 December 2010 at 10:00 am for further mention…
The applicant filed an affidavit by her solicitor, Mr Coffey, on 3rd December 2010, setting out instructions from his client as to her medical condition and annexing correspondence from Dr L and Dr N relating to the applicant’s medical condition. Mr Coffey’s affidavit also stated at paragraph [6]:
The Applicant asks that the Court order that the Respondent pay a lump sum as interim adjustment of property rights.[5]
[5] Affidavit of M.G. Coffey 1.12.2010 at [6]
On 15th December 2010, when the matter was again mentioned before the Court, Counsel for the applicant filed in court an affidavit by the applicant dated that day, setting out details of her diagnosis of severe hip arthritis requiring a hip replacement and annexing correspondence from Dr L and Dr N. The applicant also states in her affidavit:
I ask that the Court order that the Respondent pay a lump sum as interim adjustment of property rights.[6]
[6] Affidavit of Ms Tanaka 15.12.2010 at [17]
Counsel for the applicant also handed up in court a Minute of Orders sought by the applicant. They were (summarised):
a)That Order 7 made on 5 July 2010 be discharged;
b)That the respondent use his best endeavours to sell the Jayco Caravan and transfer the proceeds of the sale to the trust account of the applicant’s solicitors for the benefit of the applicant;
c)If the respondent has not complied with the above order by 4th January 2011 then he was to do all things necessary to transfer the title to the caravan to the applicant;
d)The respondent was to deliver the caravan to a place nominated by the applicant upon transfer of the title to the applicant;
e)The respondent was to pay to the applicant the sum of $14,000.00 within five working days;
f)The respondent was to deliver various items to the applicant with the caravan.
The respondent’s solicitor opposed these orders. I ordered that:
a)The respondent was to file and serve an affidavit in reply to the affidavits of the applicant and her solicitor of 3rd and 15th December 2010 by Monday 17th January 2011; and
b)The respondent was granted leave to file and serve a Response to the Application in a Case by Monday 17th January 2011.
I directed that the parties’ solicitors may file written submissions by 17th January 2011 and then stood the matter out of the list.
Whilst no written submissions have been received, on 17th January 2011 the respondent’s solicitor filed an affidavit to which he was the deponent annexing a Policy Directive from NSW Health entitled “Waiting time and Elective Patient Management Policy”.
The Response to an Application in a Case was filed on 1st February 2011.
The applicant’s solicitor filed an affidavit to which he was the deponent on 14th February 2011, setting instructions form his client as to her inquiries and annexing:
a)reports from [omitted] Imaging Centre dated 19 November 2010;
b)a report from Dr M dated 6 December 2010; and
c)a report from [omitted] Diagnostic Imaging dated 31 January 2011.
Whilst the affidavit of Mr Coffey was filed on 14th February 2011, which is outside the time provided for the filing of written submissions, I am satisfied that there will be no practical injustice to the respondent if the court takes the affidavit into account.
Submissions and Evidence
The applicant relies on the following:
a)Her affidavit of 9th June 2010;
b)Her affidavit of 15th December 2010;
c)Her Financial Statement filed on 6th August 2010;
d)The affidavit of Michael Gerard Coffey (the applicant’s solicitor) sworn on 1st December 2010; and
e)The affidavit of Michael Gerard Coffey sworn 11th February 2011.
The respondent relies on the following:
a)His affidavit of 4th August 2010;
b)His Financial Statement filed on 5th August 2010; and
c)The affidavit of Andrew Alexander Torok (the respondent’s solicitor) affirmed on 17th January 2011.
The affidavits by the parties’ solicitors contain hearsay material and annex copies of documents by various health professionals, referring to matters of which the deponents are unlikely to have any personal knowledge.
Nevertheless, I propose to admit those affidavits into evidence for the following reasons:
a)Neither party has objected;
b)The application is an interlocutory proceeding and s.75 of the Evidence Act 1995 provides that in an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source; and
c)The parties have adduced evidence of the source of the hearsay.
I am mindful of the fact that both parties are in poor health and their solicitors have told the Court of their difficulties in obtaining instructions from their clients because of this fact. The affidavits of the parties’ solicitors are in many ways submissions as to the case of the respective parties.
It is the applicant’s evidence that she has severe hip arthritis in her left hip and consequently requires a hip replacement. She deposes that she is in severe pain because of this. She has consulted her general medical practitioner, Dr N, and an orthopaedic surgeon, Dr L, and the advice that she has received from them is that the waiting time for a hip replacement as a public patient in a public hospital is approximately 12 months.
The applicant has obtained this advice from the following sources:
a)[S] Hospital Admissions Department;
b)Dr L, her treating orthopaedic surgeon;
c)Dr S, an orthopaedic surgeon;
d)Dr P, the Head of orthopaedics at [G] Hospital; and
e)Dr E, an orthopaedic surgeon at [G] Hospital.
Dr N, in a letter dated 25/11/2010 annexed both to the affidavit of
Mr Coffey of 1st December 2010 and the applicant dated 15th December 2010 states that:
Ms Tanaka is suffering from severe hip arthritis which require(s) a hip replacement. She is currently on the waiting list for operation however it may take 12 to 18 months for this to occur. Due to other health issues such as osteopena and obesity, I have recommend(ed) that she should proceed with the hip replacement as soon as possible.
Dr L, orthopaedic surgeon, in a letter dated 10 November 2010 to the applicant’s solicitor, copies of which are annexed to Mr Coffey’s affidavit of 1st December 2010 and the applicant’s affidavit of 15th December 2010, states:
…Ms Tanaka has a severe arthritis in her left hip. Due to this and the level of pain it is producing she requires a hip replacement. If she currently was put on the public hospital waiting list she would wait approximately 12-18 months.
Dr L also provided an estimate of charges for a total hip replacement for an uninsured patient at the [K] Hospital dated 24th September 2010. This document is annexed both to Mr Coffey’s affidavit and the applicant’s affidavit.
The estimate of charges is as follows:
a)Theatre costs $3717.00
b)Accommodation (per night) $ 918.00
c)Surgeon $3940.00
d)Anaesthetist $1750.00
e)Assisting Doctor $ 780.00
f)Physiotherapy $ 300.00
g)Prosthesis $10,000 - $15,000.00
The estimate also states that:
Uninsured patients are required to pre-pay Dr L and the hospital.
In his affidavit sworn on 4th August 2010 the respondent denies many of the applicant’s claims about her contribution to the relationship as a homemaker. He also states that:
The applicant has suffered mental illness for a number of years and spent most of 2008 in a psychiatric ward of [S] hospital.[7]
[7] Affidavit of Mr Ogilvie 4.8.2010 at [25]
He annexes a statement by Dr N dated 5/11/2008 saying:
This letter is to certify that Ms Tanaka is suffering from mental illness. She had been admitted in Psychiatric Unit at [S] hospital for 9 months in 2008. Her condition has deteriorated. She is unable to work for at least 2-3 years.[8]
[8] Ibid Annexure “A”
He also deposes that he suffers from ill-health.
As to the caravan, the respondent states:
The caravan was when the applicant took possession in excellent condition with full facilities including but limited to television, air conditioner, bathroom and kitchen. Since her occupation the applicant reduced the caravan to a poor state by her lack of cleanliness and resulted in me re-claiming it when she stopped residing in it. On cleaning the caravan I found it was mice infested and full of rubbish…I have also cleaned it and tried to restore it to its previous excellent condition [9]
[9] Affidavit of Mr Ogilvie 4.10.2010 at [28]
The applicant, in her Financial Statement, claims to own half of the caravan but gives no estimate of its value.
The respondent, in his Financial Statement, shows his assets as follows:
a)Property T $600,000.00
b)Westpac Banking Corporation account $ 8,984.00
c)Volkswagen van $ 8,000.00
d)2003 Jayco Freedom Pop-top caravan $17,000.00
Relevant Law
This interim application commenced as an application for lump sum interim maintenance, but it has been transformed by the applicant into an application for a partial property settlement. This can be seen from paragraph [6] of Mr Coffey’s affidavit of 1st December 2010 and paragraph [17] of the applicant’s affidavit sworn on 15th December 2010 and filed in court that same day.
It is for the applicant to characterise her claim and it is entirely a matter for her that she wishes to have the lump sum that she seeks described as a partial or interim property settlement rather than a claim for maintenance. It is clear that the respondent has not been taken by surprise by this change to the characterisation of the applicant’s claim and he has made no objection.
In my view the Court should proceed to make a decision on a claim for partial property settlement.
In order for the Court to have jurisdiction, the parties must establish:
a)that they were in a de facto relationship for a period of at least two years;
b)that they separated after 1st March 2009; and
c)that either or both of them were ordinarily resident within a participating jurisdiction.
The definition of a de facto relationship can be found in s.4AA(1) of the Family Law Act. The subsection provides that:
A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5)
The power to make a declaration about the existence of a de facto relationship is found in s.90RD of the Act:
If:
(a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL: and
(b) a claim is made, in support of the application, that a de facto relationship exited between the applicant and another person;
the court may, for the purposes of these proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
The Court may only make a section 90RD declaration if it is satisfied that one or both of the persons concerned were ordinarily resident in a participating jurisdiction when the primary proceedings commenced (see s 90RG).
The requirement to show that the de facto relationship was in force for at least two years or that some other qualifying requirement is met can be found in s.90SB of the Act, which provides:
A court may make an order under section 90SF, 90SG or 90SM, or a declaration under section 90SL only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Section 90SF sets out matters to be taken into consideration in relation to maintenance.
Section 90SG empowers the Court to deal with urgent maintenance cases where it appears that the party is in immediate need of financial assistance. It is similar but not identical to s.77 of the Act, which applies to spousal maintenance.
The jurisdiction to deal with financial matters relating to de facto relationships was given to courts exercising jurisdiction under the Family Law Act by the Family Law (De Facto Financial Matters and Other Measures) Act 2008, that part of the legislation dealing with adjustment of property interests and the making of maintenance orders came into force on 1st March 2009.
There is a geographical requirement for the exercise of the Court’s jurisdiction to make declarations and alterations of property interests, set out in subsections 90SK(1) and (1A) of the Act:
A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only of the court is satisfied;
(a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and
(b) that either:
(i) Both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4), (b) or (c);
in one or more States or Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A) is met.
(1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
The States of New South Wales, Queensland, Tasmania and Victoria have been participating jurisdictions since 1st March 2009, and South Australia has been a participating jurisdiction since 1st July 2010.
Section 90SD provides a similar geographical requirement in respect of applications for maintenance arising out of a de facto relationship.
The power to make declarations of interests in property of parties to a de facto relationship can be found in s.90SL of the Act.
The power to make orders in to determine matters involving alteration of the interests in property of parties to a de facto relationship can be found in s.90SM of the Act. The powers given to the Court under s.90SM are similar to those given to the Court under s.79, which applies to the property of parties to a marriage.
The Court has general powers under s.90SS(1) that are similar, but not identical, to those given to the Court under s.80 of the Act, that applies to the property of parties to a marriage. Those powers include the power to make a permanent order, an order pending the disposal of proceedings, or an order for a fixed term (s.90SS(1)(h)).
Jurisdiction
In her Application for Final orders, the applicant seeks a declaration that the parties lived together in a bona fide domestic relationship for a period between 1994 and 19th December 2009 as defined by s.4AA of the Act.
Similarly, the respondent, in his Response to Initiating Application filed on 5th August 2010, seeks a similar declaration, but for a shorter period, namely between 2006 and December 2009.
If a declaration is to be made, it will be under the provisions of s.90RD.
To my mind, it is not relevant for the purpose of this interlocutory application, to make a finding about the conflicting claims of the parties about the length of the period in which they were in a de facto relationship, even if it were possible to do so, as neither party’s evidence has been tested by cross-examination.
What is relevant is that the respondent concedes in his affidavit of 4th August 2010 that:
In 2006 the applicant and I commenced a de-facto relationship and we received a joint pension. We separated in December 2009.[10]
[10] Affidavit of Mr Ogilvie 4.8.2011 at [10]
This concession is sufficient to give the Court jurisdiction, because it concedes that the parties lived in a de facto relationship for a period of at least two years and they separated after 1st March 2009.
The affidavit evidence of each party confirms that they resided at [omitted], a suburb of Sydney, in the State of New South Wales, during that period.
New South Wales is a participating jurisdiction for the purposes of section 90SK and has been so since 1st March 2009.
I find that the parties lived in a de facto relationship for at least two years and that they separated after 1st March 2009. They were ordinarily resident in New South Wales, a participating jurisdiction, when these proceedings commenced.
I am satisfied that the Court has jurisdiction to hear and determine the application.
I will make a declaration under s.90RD that a de facto relationship existed between the parties from 2006 until December 2009. If there is evidence led in the final hearing that satisfies the Court in doing so, the Court may vary the declaration (see 90RH).
The Court has the power to make a partial property order, which is the order that the applicant seeks. She wishes to have a hip replacement operation and she has insufficient funds to have that operation performed as a private patient.
I am satisfied that there is evidence that there is a waiting list of 12 to 18 months for a person who is not covered by private health insurance to have a hip replacement operation as a public patient in a hospital. Whilst the applicant’s condition is not life-threatening, there is evidence that it is painful and it would be in her interests for the operation to be performed earlier. This can only be done if she is in a position to pay for the operation.
The estimate of the costs of the operation given by Dr L shows that the applicant will need at least $21,405.00 and possibly as much as $26,405.00, depending on the cost of the prosthesis.
If the applicant cannot afford the costs, she will have to wait for 12 to 18 months until the operation can be performed as a public patient. If a partial property order is not made in the near future and the applicant has to wait for a final hearing, it is likely that it will be at least 12 months before the Court will be in a position to hear her application.
However, the Court must be satisfied that such an order would be just and equitable (see s.90SM(3)). It would not be just and equitable to make an order that the respondent pay to the applicant an amount that would exceed the figure that she could reasonably expect to receive after a final hearing.
The respondent, in his Response to Initiating Application filed on 5th August 2010 seeks an order that he pay to the applicant within 42 days the sum of $50,000.00 to be held in trust for her ongoing maintenance and support. It is a reasonable inference that the respondent would not ask the court to make such an Order unless he were satisfied that he had the funds available to meet that Order.
The Court must be satisfied that there are funds reasonably available to meet the applicant’s claim for a partial property order. The respondent values the caravan at $17,000.00, according to his Financial Statement. He stated that he had a bank balance of $8,984.00 in his account at the Westpac Bank at that time. He has not provided any updating material that would show that his financial position has appreciably worsened since then. He also has a superannuation entitlement of $89,434.37. His home at [omitted] is encumbered. His income exceeds his expenses.
I am satisfied that the respondent has the capacity to pay to the applicant an amount of $26,000.00, made up as follows:
a)A transfer of the caravan to the applicant at its value of $17,000.00; and
b)The payment of a lump sum of $9,000.00.
The applicant has been seeking that the caravan should be sold or, if it remained unsold, should be transferred to her so that she may sell it. The caravan has remained unsold.
The Future Progress of this Application
It is regrettable that the parties have been prevented by illness or injury from attending a Conciliation Conference with a Registrar. Whilst the restriction on making a final property order where the parties have not attended a conference before a Registrar contained in subsection 90SM(9) does not apply to the Federal Magistrates Court, it remains the case that the Court must consider the use of primary dispute resolution procedures to resolve any matter in dispute (see Federal Magistrates Act 1999, s.22). Section 23 of the Federal Magistrates Act provides that if the Court considers that a dispute resolution process may help the parties to resolve that dispute, it must advise the parties to use that dispute resolution process. The Court may adjourn any proceedings before it to enable attendance in connection with the dispute resolution process, which includes conciliation.
In my view, this is a matter where the parties would be assisted by attendance at a Conciliation Conference before a Registrar. A previous order was made and an appointment was set, but the conference did not take place because the respondent was hospitalised. No further appointment has been made.
The asset pool in dispute is not a large one. The respondent discloses the total value of his property as $641,984.00 and the total gross value of his superannuation as $86,434.37. The applicant claims to have precious few assets. It is not in the parties’ best interests to expend large sums of money on legal expenses.
Again, the parties will be able to attend a Conciliation Conference before a Registrar long before the Court will be able to hear this application on a final basis. At present, the parties can expect a conference to be appointed within approximately three months. The current workload of the judicial officers of this Court is such that a final hearing will be at least a year away.
I intend to direct that the parties attend a Conciliation Conference before a Registrar on a date to be fixed and I will make directions accordingly.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 4 May 2011
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