Younan and Younan

[2014] FamCA 65

FAMILY COURT OF AUSTRALIA

YOUNAN & YOUNAN [2014] FamCA 65

FAMILY LAW – PRACTICE AND PROCEDURE – Case management hearing – Valuation issue.

Family Law Act 1975 (Cth)

APPLICANT: Mr Younan

RESPONDENT: Ms Younan

FILE NUMBER: MLC 8961 of 2012

DATE DELIVERED: 23 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salamanca

SOLICITOR FOR THE APPLICANT: Pryles & Co

COUNSEL FOR THE RESPONDENT: Mr Schetzer

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

Orders

1. That the husband forthwith instruct N Storage to permit access to the storage facility containing the R collection by valuer Mr O and that Mr P may also be present.

2. That the husband have leave to file and serve an affidavit by Mr O by no later than 4.00pm on 29 January 2014.

3. That the costs of both parties of this day are reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the application in a case filed 23 January 2014 is dismissed.

3. That the reasons this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Younan & Younan 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 MELBOURNE

FILE NUMBER: MLC 8961 of 2012

Mr Younan

Applicant

And

Ms Younan

Respondent

REASONS FOR JUDGMENT

1. This is a formal application and also an oral application brought on urgently in relation to a trial that is listed to commence before me next week.  The evidence that supports the application is contained in an affidavit by the solicitor for the husband.  There is no affidavit in reply by anyone on the wife’s behalf, and that is probably understandable, having regard to the fact that the documents were only served late last night.  Whilst there is criticism of the assertions in the affidavit, I am not prepared to draw any adverse inference at this stage, and to the extent that the wife wishes to, she can have leave as she has foreshadowed to subpoena the person who seems to have caused some of the problem in the first place. 

2. The application in writing seeks that an expert have access to a storage facility where some artefacts are contained for the purposes of valuation.  The reason why that application is made is because there is an injunction made by the Court about a year ago precluding the parties, and obviously their agents, having access to that facility.  It seems to me that the fundamental principle under which the inspection is to take place is that a valuation will follow.  A valuer needs to see the artefacts.  The wife’s position was that the filing of the affidavit as a consequence of evaluation would be late, and therefore it would not be appropriate to make the order.

3. Mr Schetzer on behalf of the wife also points out that the evidence is sufficiently vague as to what the previous valuer was doing, and why she has adopted the position she has, but also the fact that even if she had been cooperative it seems that the timetable would not have been met.  The real dilemma in these situations for the Court is that it is important that the trial proceed on a level playing field.  Section 79(2) mandates that the Court must not make an order unless it is satisfied that it is just and equitable to do so.  That is the basis for my caution in rejecting the wife’s argument.  The dilemma for the Court is that if someone has a plausible explanation as to why they cannot call evidence, the Court has to seriously consider permitting them to the find that evidence so that its s 79(2) mandate can be fulfilled.  There is a problem here, and both parties want the trial date maintained.  It is logical that the injunction be varied to permit access by the valuer, Mr O.  There is clearly no trust between the parties in relation to either of them having access alone, and I do not propose to enter into that debate.

4. Counsel for the husband has come up with a sensible proposition, and that is that someone will point out where the artefacts are, and how that takes place is a matter for the valuer.  The application did not seek that there be an order for the consequential filing of the expert’s affidavit.  To simply ignore that issue would be a farce, bearing in mind that the whole purpose of the exercise is to put the evidence before the court.  Whilst there may be grounds for criticism of the husband for not having this material ready on time, there are all sorts of arguments about who is at fault in all of that, and I do not propose to enter into that debate at that stage because it seems to me that it may distract everyone’s attention from the real issue, which is getting this trial started next week.

5. Notwithstanding the problems, it is logical to give the husband leave to file his affidavit provided it is filed by no later than 4 pm on 29 January 2014. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 January 2014.

Associate: 

Date:  13 February 2014