Thales and Long and Anor

[2017] FamCA 150

FAMILY COURT OF AUSTRALIA

THALES & LONG AND ANOR [2017] FamCA 150

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

APPLICANT: Mr Thales

FIRST RESPONDENT: Ms Long

SECOND RESPONDENT: Ms B Long

FILE NUMBER: MLC 8329 of 2016

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Boutique Family Lawyers

SOLICITOR FOR THE RESPONDENT: Lincolns Lawyers and Consultants

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tao Jiang Lawyers

Orders

1. The wife’s application for an expedited trial management hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8329 of 2016

Mr Thales

Applicant

And

Ms Long

First Respondent

And

Ms B Long

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent wife in this case seeks an expedited trial management hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The wife relies upon the summary of argument dated 15 February 2017 pursuant to orders made by Registrar Mestrovic on 1 February 2017. The applicant husband and the second respondent, the wife’s brother, both support the wife’s application for an expedited hearing.

2. The substantive proceedings were commenced in this Court by the husband on 1 September 2016. The Initiating Application filed by the husband sought final and interim property orders and was listed urgently before Johns J on 7 September 2016. Johns J made orders by consent on this date in relation to the sale of a property owned by the second respondent and that inter alia the net proceeds of sale be held on trust pending final settlement or written agreement of the parties, the parties be restrained from dissipating the matrimonial assets, which primarily consists of two real properties, and procedural orders with respect to the wife filing documents and the listing of a conciliation conference on a date to be fixed.

3. The husband filed an Application in a Case on 17 October 2016 seeking further interim property orders including a payment of $10,000 to him from the wife and valuations of the two real properties and the parties’ business interests. The application was abridged and listed before Registrar Mestrovic on 10 November 2016 and on this date the matter was listed for a conciliation conference on 16 December 2016 with the usual directions and orders being made for the two real properties to be valued.

4. The matter did not settle at the conciliation conference and was adjourned to the Registrar’s Directions Hearing List on 1 February 2017. On this date Registrar Mestrovic allocated the matter to the pool of cases awaiting hearing and made orders for the making of a priority application.

Legal Principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before the Judge. As set out in the Rules:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

   (b)  whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

   (c)  whether the applicant is suffering financial hardship that:

   (i)  is not caused by the applicant; and

   (ii)  cannot be rectified by an interim order;

   (d)  whether the continuation of interim orders is causing the applicant or a child hardship;

   (e)  whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

   (f)  whether the case involves allegations of child sexual, or other, abuse; and

   (g)  whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Discussion

1. The wife seeks an expedited hearing on three grounds:

   (a)the purpose of the case will be lost if not heard quickly;

   (b)the wife has acted reasonably without delay in the conduct of the case and there is no discernible prejudice to the applicant or the second respondent;

   (c)the nature of the issues between the parties is such that it is unlikely to resolve unless findings of fact are made by Judge at trial.

2. With respect to the first basis, the wife submits that she does not have capacity to independently service the mortgage secured on one of the real properties and that the husband does not contribute to such repayments. The repayments are currently being made out of two offset accounts and if the matter is not determined, within seven months there will be insufficient funds remaining and mortgagor may commence proceedings. And that in the event that the mortgagor commences proceedings the equity in the two properties will be diminished such that there “may be nothing, or little left for division between the Applicant and the First Respondent rendering the whole purpose of the Initiating Application otiose.”

3. Secondly, the wife submits that the husband has not responded to her proposal to sell the real property which would allow the mortgage to be discharged and there is no discernible prejudice to the applicant or the second respondent.

4. Finally, the wife submits that the matter has limited prospects of settlement as a result of the allegations the husband has made with respect to the wife diverting matrimonial funds.

5. I am satisfied the wife has acted reasonably and without delay and there is no discernible prejudice to the applicant nor the second respondent should the trial management hearing be expedited however the Court must be satisfied that there are circumstances that warrant this case being given priority to the detriment of other cases. It is the wife’s own case that it was her proposal to the husband that the real property be sold and the mortgage discharged. Notwithstanding the wife has not sought an interim order to this effect it is nonetheless open to her to do so and I am satisfied that this course of action would allow the parties to preserve the asset pool pending a final hearing. (r 4(c)(ii) of the Rules).

6. In these circumstances I am not satisfied that the matter should be afforded priority to the detriment of other cases which are similarly awaiting hearing. In all of the circumstances I propose to dismiss the wife’s application for an expedited trial management hearing and the matter will remain in the list of cases awaiting allocation to a judicial docket.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan on 10 March 2017.

Associate: 

Date:  10 March 2017