Wellman and Wellman

[2014] FamCA 257

FAMILY COURT OF AUSTRALIA

WELLMAN & WELLMAN [2014] FamCA 257

FAMILY LAW – Application in a case – application for vacation of hearing dates.

APPLICANT: Mr Wellman

RESPONDENT: Ms Wellman

FILE NUMBER: SYC 3153 of 2011

DATE DELIVERED: 1 April 2014
Ex tempore

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 1 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. That the Husband’s Application in a Case filed 26 March 2014 is dismissed.

2. That the Wife’s costs of today’s hearing are reserved to the final hearing.

THE COURT NOTES:

1. The Husband sought in his Application in a Case filed 26 March 2014 (Order 5) a valuation by an expert witness of the property formerly owned by the parties in New York (together with improvements, fittings and fixtures erected thereon).  There is consent by the wife for an expert report to be prepared on the condition that the expert witness is agreed to as an independent valuer and there is an agreed letter of instruction.  The cost of such valuation may be in issue at the final hearing but in the first instance the cost is to be met by the Husband.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3153 of 2012

Mr Wellman

Applicant

And

Ms Wellman

Respondent

REASONS FOR JUDGMENT

1. This is an application by the husband for the vacation of hearing dates commencing for four days on 27 May 2014.  In support of the application, the husband relies on his own affidavit filed on 26 May 2014 and the affidavit of his solicitor of 21 May 2014. 

2. The application to vacate the dates is opposed by the wife and she has filed an affidavit in the matter sworn on 30 March 2014. 

3. I take into consideration that the solicitor for the husband says that the preparation for the matter has created difficulties for him and his office and he is concerned that the matter will not be able to be prepared within time.  I accept that the solicitor might have those difficulties given that he has been quite recently briefed in a matter with significant assets without conceding that it is a matter of particular complexity.

4. However, I also take into account that the matter was set down for hearing at a time when issues were really clearly known between the parties and I further take into account that dates were offered in February 2014, which would have been, I think, three or four weeks further on.  At that time, although they were acceptable to the wife, the husband’s response was to keep the dates in May and that was done.  That is an indication that, at that time, there was confidence that the matter would be able to be prepared in accordance with the directions. 

5. Although there has been reference to some complexity in the parenting issues, I am not satisfied about that.  There has been a wishes report for the fourth child of these parties, who is the only one under 18, she will be 15 in May.  By consent she presently attends the boarding school of G School.  Although both parties seek an order for residence about her, I am satisfied that it is likely, given the history as I understand it of these parties and their children, who have both lived and worked overseas extensively throughout the relationship since 1984, that parenting orders are likely to be changed by consent between the parties or further application as their circumstances inevitably change and that they both know that.

6. In any event, the views and wishes of a young lady of 15, who is the youngest of siblings and likely to be more mature as the wishes report suggests, means that it is not likely to be a complex parenting matter and I accept Mr Schonell’s point that that is reflected in a projected day of cross-examination of the wife which would, presumably, include both property and parenting.

7. In circumstances where the matter is set down where senior counsel has been briefed and at all times until this application, the matter is considered to be a four day matter and where both parties have really pressed and worked quite hard to bring the matter to a final hearing, it seems to me to not be appropriate to vacate the dates.  But rather in the event that despite the best efforts of both parties, it could not be concluded in the four days to consider the position then rather than to take the step of vacating the dates now.

8. What I will do is note that the husband, in number 5 of the orders sought in his application in a case, a valuation by an expert witness of the property formally owned by the parties in New York together with its improvements, there is consent by the wife to the husband undertaking such evaluation on condition that the valuer is agreed to as an independent valuer and, presumably, as to the instructions and the cost of that valuation may be an issue in the final hearing but is, in the first instance, met by the husband and permits the husband to undertake that course. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex tempore on 1 April 2014.

Associate: 

Date:  15 April 2014