West & North

[2008] FamCA 559

FAMILY COURT OF AUSTRALIA

WEST & NORTH [2008] FamCA 559

FAMILY LAW – CASE MANAGEMENT AND PROCEDURAL ORDERS

Family Law Act 1975 (Cth)

APPLICANT: MS WEST

RESPONDENT: MR NORTH

FILE NUMBER: MLC 3591 of 2007

DATE DELIVERED: 15 JULY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 15 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR McBRIDE

SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT: MR WOOLF

SOLICITOR FOR THE RESPONDENT: MEERKIN & APEL

ORDERS

IT IS ORDERED:

1. THAT the parties attend a Financial Conciliation Conference on 13 November 2008 at 2.15 p.m. before Registrar Lethbridge and make a bona fide endeavour to resolve all property and financial matters in dispute.

2. THAT on or before 5 November 2008 each of the parties make, file and serve:

   (a)a specific application or response document identifying the specific financial orders now sought; and

   (b)an updated Form 13 statement of financial circumstances.

3. THAT on or before 25 July 2008 the husband’s solicitors make, file and serve the affidavit and report of his treating psychologist, Mr K.

4. THAT the wife be permitted the opportunity, by arrangement between solicitors, to require the husband to attend an independent psychological examination and report, at her expense, but only if there are matters of issue that arise from the filing of Mr K’ report and if so such further affidavit is to be filed and served on or before 29 August 2008.

5. THAT the parties are to obtain a single expert valuation of all real property and the shares in G Golf Club and for this purpose they are to instruct their solicitors to appoint an agreed single expert valuer.

6. THAT the parties be excused from filing a trial affidavit for the purposes of the financial conciliation conference but if the matter does not there resolve then both parties are to make, file and serve their trial affidavit, and any other affidavits upon which they rely, on or before 28 November 2008.

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

8. THAT as soon as practicable the clients are to agree upon and instruct solicitors to appoint a single expert to value the interest, equity or entitlement that they, or each of them, may have in:

   (a)         their self managed superannuation fund; and

   (b)         N Pty Ltd

   such valuation to be at the joint expense of the parties and is to be prepared and be available to the Court on or before 5 November 2008.

9. THAT both parties are to cooperate and provide all tax returns, bank documents and records and other corporate documents required to facilitate such valuation and facilitate the further hearing of this matter.

10. THAT otherwise, and subject to the outcome of the Financial Conciliation Conference the matter be listed for mention before Young J on Monday 1 December 2008 at 10.00 a.m.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3591 of 2007

MS WEST

Applicant

And

MR NORTH

Respondent

REASONS FOR JUDGMENT

1. The matter of West & North, MLC 3591 of 2007, is before the court for case management orders.  Mr McBride, solicitor, appears for the applicant wife; Mr Woolf, solicitor, for the respondent husband.

2. The proceedings in this matter were issued in March of 2007.  The only documents before the court are the respective applications and a Form 13 financial statement.  The matter was allocated a financial conciliation conference on 4 July 2007 before Registrar Sikiotis but did not resolve.

3. The assets of the marriage are predominantly a home in B, where the wife now lives, and a home which the husband has recently sold at C.  What has been indicated to the court is that from the proceeds of sale of his home, the husband has now paid a deposit on a property in suburban Melbourne and otherwise there needs to be disclosure of the balance of moneys arising from the C property sale.  The parties are therefore to obtain valuations of both properties, being the B property and the recently purchased property, and/or to determine the equity or other available proceeds of sale which should be before the court for an appropriate adjustment of property.

4. The husband is the sole proprietor of N Pty Ltd and there is an agreement that a single expert forensic accountant is to be appointed by the solicitors for the parties to value his interest, equity and entitlement therein.  That is a matter that I leave for solicitors but on the basis that it is to be given priority. 

5. The parties or one or both of them have self-managed superannuation funds and the equity in those funds is likewise to be valued and must be before the court for the Financial Conciliation Conference that I will appoint for 13 November 2008. 

6. I have been asked to structure the affidavits to minimise cost and expense.  Accordingly, for the Financial Conciliation Conference, both parties will file a Form 13 financial statement and a one-page summary of assets and liabilities.  If the matter does not resolve, then there must be a more detailed trial affidavit and affidavit of witnesses filed by 28 November of this year. 

7. If the matter is settled before the Financial Conciliation Conference it can be mentioned by solicitors to me and I will vacate that court date.  Otherwise, I will list the matter for mention before me on a date to be appointed later this year with the purposes of having a hearing of no more than two days' duration in the early months of the 2009 calendar year. 

8. I include in these extempore reasons the optimism of solicitors that this matter should resolve, that it is of limited issues, and a modest quantum.

9. There are two other issues that should be identified.  The first is that the husband does have some emotional or psychological issues which are the subject of a report from Mr K.  That has just been received by his solicitor, but will need to be placed in evidence.  I reserve to the wife, through her solicitors, the opportunity to have the husband independently psychologically examined.  Whether that is prudent is not a matter upon which I express comment and likewise whether it is cost-effective and necessary for hearing is a matter that will have to be determined by the wife and her solicitor.  The current indication is they want to pursue that course of action, subject to the contents of the current report.

10. The issue, as I understand this case, is that the husband currently cannot and does not want to be in the physical presence of the wife, such as he will not voluntarily enter this courtroom with her being present. 

11. The other issue I record is that both parties now enjoy golf and are members of golf course G and golf course Y.  The husband is a long‑term seven-day playing member of golf course Y, the wife a more recently joined six-day playing member.  The husband would have the wife removed from membership and from that golf course.  The wife currently would oppose that application.  It may be that commonsense is and can be that the wife plays on stipulated days such as a ladies' day when the husband is not on the course.  Hopefully some level of commonsense will apply.  The alternative is to exercise jurisdiction of the court and remove one or other of the parties from that established golf course.  That may mean issues of a joining fee and membership entitlement at a nearby course become issues in the case.  I make no finding at this stage but urge commonsense on solicitors and parties.

12. I will have these reasons transcribed and placed upon the court file.  I will pronounce procedural orders to facilitate the further Conciliation Conference for defended hearing one day.  It is clear with the money and issues in this case, commonsense is a priority and hopefully this matter will be adjusted out of court.

13. Finally, and for the purposes of completeness, I confirm that I have made a disclosure to the court, necessary because the wife is an employee of a firm providing professional services whom I have attended for decades.  That fact has been disclosed to the husband's solicitor who has sought instructions (out of court) from the husband, who has indicated no objection would be taken to the matter being contained within my docket and heard by me if necessary at a future hearing date.  Otherwise, I make no further comment or observation on this matter.  Specifically, I will further allow both parties to amend their application and response and in this case, I will require particularity, not the very general form of application or response that is before the court.  The parties will have to finetune with precision the orders that they seek in dollar terms before the Conciliation Conference.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate:      …

Date:              21 July 2008