Tinsley and Tinsley
[2009] FMCAfam 251
•19 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TINSLEY & TINSLEY | [2009] FMCAfam 251 |
| FAMILY LAW – Adjournment – new material – party prejudiced if not adjourned. |
| Applicant: | MR TINSLEY |
| Respondent: | MS TINSLEY |
| File Number: | MLC 4961 of 2008 |
| Judgment of: | Turner FM |
| Hearing date: | 19 March 2009 |
| Date of Last Submission: | 19 March 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms R.L. Wheeler |
| Solicitors for the Applicant: | Holt & Macdonald |
| Counsel for the Respondent: | Dr R.S. Ingleby |
| Solicitors for the Respondent: | Schetzer & Constantinou |
ORDERS
Interim orders are made by consent in terms of orders 1 to 5 of the wife’s proposed orders and orders 1 and 2 of the husband’s proposed orders both dated 19 March 2009, marked “Exhibit A” and placed on the Court file.
The solicitors for the Applicant file three clean typed copies of these Orders within 7 days.
The matter is fixed for final hearing on 31 August 2009 at 10.00 am with an estimated hearing time of 5 days.
The child [X] born in 1998 spend time with the husband from 6.00 pm on Thursday 19 March until 6.00 pm Saturday 21 March 2009. The wife to deliver [X] to the husband’s parents residence, and the husband’s parents are to return [X] to the wife’s residence.
The costs of today are reserved.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceedings.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Tinsley & Tinsley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4961 of 2008
| MR TINSLEY |
Applicant
And
| MS TINSLEY |
Respondent
REASONS FOR JUDGMENT
(Extempore and revised from transcript)
The husband filed an affidavit in this matter on 12 March 2009. It is asserted that it was posted to the applicant on 12 March 2009. It is asserted for the wife that she did not receive it until Tuesday 17 March, that is, two days ago. The wife asserts that this hearing should not proceed today and tomorrow. She seeks an adjournment to respond to new materials said to be raised in the affidavit of the husband. It is said that the new material falls within the terms of order 5 of the orders of
5 February 2009: That order provides that if the respondent is caught by surprise by material produced at that final hearing of which she was not previously aware, she may apply for an adjournment to answer the material.
It is alleged that the first new issue arises from paragraph 2 of page 9 of the affidavit of 12 March 2009. On Tuesday, it was said the valuation of Property C is $1.5m. The wife says the correct valuation is $1.15m: a difference of $400,000. The material in Court today shows that the wife obtained her valuation of $1.15m the same day that she received the valuation of $1.55m from the husband. The Court accepts that there should be a conference between the valuers to arrive at an agreed figure.
At paragraph 3.19 of the husband’s affidavit filed on 25 July 2008, he deposes that he withdrew $150,000 from the joint bank account.
At paragraph 35.1 of his affidavit of 12 March 2009 he deposes that he withdrew $299,000. This is material which, it is said, the wife was previously unaware and is said to fall within order 5 of the orders of
5 February 2009.
Referring again to the affidavit of 12 March 2009 at paragraph 38.11, it is said that there is a new allegation that “there was never a loan from the husband's estate”. The Court is prepared to accept as truthful submissions from Counsel, as to whether an allegation is new or not. On that basis, the Court is satisfied that new material has been raised.
At paragraphs 14 and 25 of his affidavit of 12 March 2009 the husband makes an allegation that during the year 1998 to 1999, the wife did not contribute in any way financially to the upkeep of the family consisting of [X] and the husband. This is also said to be new material. It is submitted for the wife that she will be prejudiced if she is forced to proceed with the hearing today and tomorrow.
The second reason for seeking that the hearing not proceed today is an application that the matter should be transferred to the Family Court as it will take longer than two days. There is no longer a two-day rule in this Court. The Court refuses the application to transfer the matter. This Court has 5 days straight available for hearing between 31 August and 4 September 2009.
The third reason for seeking not to proceed today is that the wife has had difficulty obtaining information from the Child Support Agency. She seeks that the husband authorise the Child Support Agency to send material relevant to the husband to either of the parties' solicitors. This information may help resolve inconsistencies in the alleged dates of cohabitation and separation. It is appropriate that that material be obtained.
The fourth reason for seeking not to proceed today is said to be that the husband is seeking an order as to his time with [X], and the wife says she has no details as to what is being sought. The Court has been told that a letter was sent to the wife by the husband's solicitors setting out what is sought. The Court has not been told that that letter was not received. The Court therefore rejects that reason.
The fifth reason is that the party’s valuers have not conferred on the value of the property of Property C. There is a difference of $400,000 in the valuation. It is in the best interests of both parties that that issue be resolved before the hearing.
The sixth reason for seeking not to proceed is that the wife wants to seek more detail of the husband's entitlements under a trust controlled by his mother. The Court has been told by his mother that there is no such trust. The Court rejects this ground.
The Court satisfied that the wife will be prejudiced if an adjournment is not granted. There is a difference of $139,000 in the sum said to be withdrawn from the joint bank account. The valuation of the major property is in dispute. There is a dispute as to a loan from the husband’s estate. There is a dispute as to whether the wife contributed financially for a year to the costs of the family.
The Court grants an adjournment. The matter is listed for final hearing on 31 August 2009 with an estimated duration of 5 days.
[X] is to spend time with the husband from 6.00 pm on Thursday
19 March until 6.00 pm Saturday 21 March 2009. The wife to deliver [X] to the husband’s parents residence, and the husband’s parents are to return [X] to the wife’s residence.The Court makes orders by consent in terms of orders 1 to 5 of the wife’s proposed orders and orders 1 and 2 of the husband’s proposed orders.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 19 March 2009
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