Trevoska & Trevoska

[2008] FamCA 557

FAMILY COURT OF AUSTRALIA

TREVOSKA & TREVOSKA [2008] FamCA 557

FAMILY LAW – PROCEDURAL – Case management and procedureal orders for trial

Family Law Act 1975 (Cth)

APPLICANT: MS TREVOSKA

RESPONDENT: MR TREVOSKA

FILE NUMBER: MLF 1429 of 2006

DATE DELIVERED: 17 JUNE 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 17 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR BERGER

SOLICITOR FOR THE APPLICANT: BERGER KORDOS LAWYERS

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT: N/A

ORDERS

IT IS ORDERED:

1. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

2. THAT the parties attend a Financial Conciliation Conference with Registrar Kaur at 9.15 a.m. on 3 September 2008 and make a bona fide endeavour to resolve all outstanding financial and property issues.

3. THAT on or before Monday 30 June 2008 the wife file any updated application or affidavit(s) upon which she intends to rely and in those documents specifically deal with:

   (a)the capital gains tax liability issue on the T property previously sold; and

   (b)the debt which she alleges is owed to her parents.

4. THAT on or before Friday 25 July 2008 the husband instruct the solicitors who are now to be appointed by him to act on his behalf to make, file and serve:

   (a)         his response to the wife’s amended application(s);

   (b)         all affidavits upon which he intends to rely;

   (c)         an updated Form 13 financial statement;

   (d)         a one (1) page summary of assets and liabilities.

5. THAT both parties are to update their specific superannuation entitlements as at 30 June 2008 and each of them are to notify the trustee of their Fund(s) of the terms of any orders sought herein and obtain the consent of the trustees as required.

6. THAT if the husband obtains, at his expense, a proper written valuation of the W property which differs from that valuation now obtained from the firm V then that is to be forthwith disclosed to the wife’s solicitors and there is to be a conference of experts as to valuation immediately convened for the purposes of determining the proper valuation thereof.

7. THAT if for any reason one or other of the parties has not properly prepared their case and if the Financial Conciliation Conference is unable to be meaningfully conducted by the Registrar then the matter is to be referred that day for mention to Young J for further orders or removal from the list of defended cases as hereunder ordered.

8. THAT the final defended hearing of this matter be listed before Young J for a three (3) day defended hearing commencing Monday 22 September 2008 at 10.00 a.m.

9. THAT the term for payment of the $500 cost sum ordered against the husband in the Financial Conciliation Conference by Registrar Riddiford be extended to 22 September 2008 or otherwise as ordered by the court.

IT IS NOTED

A.THAT any subsequent variation in the superannuation fund of either party may be updated by an exchange of letters.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1429 of 2006

MS TREVOSKA

Applicant

And

MR TREVOSKA

Respondent

REASONS FOR JUDGMENT

1. The matter of Trevoska was listed before me for mention on 17 June 2008.  Mr Berger, solicitor, appeared for the wife who was not at court.  The husband appeared in person.  The brief history of this matter is that the financial issues were last before a Registrar Riddiford on 22 May 2008.  On that occasion both parties were represented but the husband did not attend, and he advises me that he was ill.  His then solicitors were Auditorie, Mr Forster, and they have substantial filed a notice of ceasing to act as the husband's practitioners. 

2. The husband advises me that they hold the file and he is required to pay them a sum of $3,500 for the release of the file.  He intends to dispute the quantum of those accrued legal costs.  He does however advise the court that he can immediately, and as a matter of certainty, borrow those moneys from his sister so that the file can be obtained and given to a solicitor of his choice.  He assures the court that he wishes to appoint a solicitor to act for him as a matter of urgency.

3. Otherwise the Registrar made orders listing the matter before me for mention this day primarily for the purposes of fixing a final hearing date.  Orders were made for the filing of affidavit material, and procedural documents.  The wife has largely complied with those orders.  The husband has filed no further documents whatsoever.  I have some limited background knowledge of this matter because of prior orders that I have made.  I did order the sale of the property at T, and that has occurred.  There is currently a sum of approximately $488,000 invested by or on behalf of the parties with the Bank of Cyprus.

4. Paragraph 6 of my orders of 14 August 2006 required capital gains tax to be assessed and paid.  Seemingly that has not been done, and by letter dated 13 June 2008 the wife through her solicitors advised the court and the husband of a potential capital gains tax liability of $80,000.  There is no agreement as to that sum, though largely because the husband has no knowledge of the calculation thereof.  It would be a matter of concern if that liability remains, in whatever amount, and is the subject of ongoing interest in default given the specific terms of the order to pay the tax that day.  What must be completed as a matter of urgency is a proper assessment of the tax debt, if any, and the payment of those moneys in discharge of a liability to the Australian Taxation Office.  If there is additional interest then that must be separately identified and the responsibility for payment of that sum will no doubt be a matter in issue in the case.

5. There is also a dispute as to the value of the property known as the two units at W.  As I best understand the submissions from Mr Berger, a valuation was jointly agreed on 26 July 2007 by the firm V.  That was $460,000.  Seemingly and in May of this year and prior to the financial conciliation conference, both solicitors then representing the parties agreed to an updated valuation by that same firm.  That valuation is now $500,000.  That sum is disputed by the husband.

6. The husband must obtain his own evidence and discuss with the solicitors for the wife, and or have valuers discuss the true valuation of the property in its current state.  Whether I permit a contest of valuers over a limited dispute is a matter upon which I reserve judgment, but clearly both parties must have appropriate evidence for discussion out of court as for value.  The other matter that became apparent today is that the units are on a common title.

7. They do not have separate titles and therefore cannot be individually sold.  That may or may not become an issue in the proceedings.  It is a matter upon which no consideration has currently been given, there is no independent evidence and no independent valuation.  The costs of restructuring the properties and separation of title have not been contemplated.  I leave all those matters to solicitors if there is to be any development of that issue.  I observe that these matters may become an issue on the basis of the amended application for final orders now filed by the wife on 13 June 2008.  What she now seeks is the release of all of the moneys from the sale of the T property, that is, $488,000 presumably subject to payment of capital gains tax, if any, and otherwise an additional payment of $220,000 to be made by the husband to her within 60 days.

8. Just how the husband can raise those moneys may be a different issue, leaving aside of course the question about what is an appropriate payment upon which I make absolutely no comment or finding in this preliminary stage.  There are matters of evidence that potentially could disrupt any appropriate financial settlement conference or hearing unless they are better addressed by the parties.

9. There is also a potential dispute as to the validity of a loan to the wife from her parents in the sum of $40,000.  That will have to be proved by the wife and clearly it will be disputed by the husband, but again I make no further comment or observation on this issue which is not properly before the court in evidence at this stage.

10. Given that the youngest child is soon to turn 18 years-of-age I understand that there are no real children or parenting issues before the court.  Again, I have not further pursued that issue or whether there are issues or a financial consequence arising from the circumstances of the family.  I leave those matters to be considered by solicitors and if relevant to be presented in evidence.  I intend to make some procedural orders now.  These will need to be complied with precisely so that the matter can have the benefit of a financial conciliation conference before Registrar Lethbridge on 13 August 2008 at 9.15 a.m.

11. I will otherwise list the matter before me on 22 September 2008 for a three day hearing.  I do however make it perfectly clear that my direction to the Registrar will be if the matter is not ready to proceed on all issues on 13 August, then I will de-list the matter from my September hearing date.  I am proceeding on the basis that the husband does genuinely want to have this matter prepared and listed for hearing.  It may be that it is a relatively straightforward financial matter, I cannot help but observe the notation that Registrar Lethbridge made on this file on 1 May 2008, that it would be better suited for hearing in the Federal Magistrates Court.

12. If the matter cannot be fully prepared and ready by early August of this year then that is a real option to transfer the proceedings.  For the purposes of these extempore reasons I emphasise that the husband has assured the court that he can obtain the file post haste, and he will appoint solicitors and prepare the case and be ready for hearing.  That means filing appropriate evidence with the court including a financial statement, and I will pronounce orders this day covering his obligations in that regard.

13. I observe that Registrar Riddiford has made detailed procedural orders and the effect of the orders that I make today will largely be to extend the filing date, but otherwise the thrust of those orders remain.  I will extend the payment date for the required payment of $500 which were costs ordered and thrown away on the conciliation conference by the non-appearance of the husband to the settlement of this matter, or otherwise to the listing before me on 22 September 2008.

14. I will have these reasons transcribed and placed upon the court file.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate:      …

Date:              21 July 2008