The Court Orders by Consent

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The Court Orders by Consent

FEDERAL CIRCUIT COURT

OF AUSTRALIA AT BRISBANEBRC:

BETWEEN:[]

[]

Applicant

AND:[]

[]

Respondent

BEFORE:Judge

ON:

UPON APPLICATION MADE TO THE COURT by [INSERT]for the Applicant and [INSERT] for the Respondent

THE COURT ORDERS BY CONSENT

Sale of property

  1. That forthwith the Applicant and Respondent do all such things and sign all documents to cause the sale by private treaty the property situate at and known as [INSERT] being the whole of the land more particularly described as Folio [INSERT], being Lot [INSERT] in Registered Plan [INSERT], County of [INSERT], Parish of [INSERT] (the [INSERT] Property).
  2. That the Applicant and the Respondent do all acts and execute all documents to cause the proceeds of sale of the [INSERT] Property to be applied as follows;

(a)First, in payment of any real estate agent’s commissions, auction expenses, advertising expenses and other costs associated with the sale;

(b)Secondly, in payment of any outstanding council rates, taxes and insurances;

(c)Thirdly, to discharge the mortgage number [INSERT] secured against [INSERT];

(d)Fourthly, to pay the remainder to the trust account of the solicitors for the Applicant to be held on trust for the Applicantand Respondent to be invested forthwith.

Disclosure

  1. Each party provide or cause to be provided to the other party a copy of the following documents that are in their power, possession or control:

(a)the documents described in Attachment A hereto within twenty-eight (28) days;

(b)any documents requested and particularised in writing by the other party (subject to relevance and any objection to claim of privilege which shall be particularised in writing) at the cost of the party requesting the documents within twenty-eight (28) days of the receipt of the request;

  1. A schedule shall be prepared in writing and served by the Applicant upon the Respondent within 14 days identifying:

(a)the property and superannuation interests of the parties (including any alleged tracing or accounting of profits that the Applicant contends should be taken into account);

(b)the alleged value of each item of property and superannuation interest (and if not known, then so stating); and

(c)the liabilities that the Applicant believes should be taken into account.

  1. The Respondent shall within 14 days of receipt of the schedule referred to in the preceding order give notice to the Applicant in writing in relation to the schedule of:

(a)any additional property or superannuation in which the Respondent has an interest that is not included on the list and any other property that the Respondent believes should be taken into account (including any alleged tracing or accounting of assets that the Respondents contend should be taken into account);

(b)any item of property or superannuation that is agreed or disputed;

(c)any liabilities that are agreed or disputed about being taken into account; and

(d)any value that is agreed or disputed.

  1. Within 14 days of receipt of the notice referred to in the preceding order the parties’ legal representatives shall confer in writing so as to attempt to agree any matters in dispute.

Valuation

  1. Where, after the parties have conferred pursuant to paragraph 6 and where there is no agreement as to the value of an item ofreal property the parties shall sign and provide to [INSERT REAL PROPERTY VALUERS] a joint letter of engagement to engage [INSERT REAL PROPERTY VALUERS] as Court Expert Valuer to value the said real property.
  2. Where, after the parties have conferred pursuant to paragraph 6 and where there is no agreement as to the value of an item of personal property the parties shall sign and provide to [INSERT PERSONAL PROPERTY VALUERS] a joint letter of engagement to engage [INSERT PERSONAL PROPERTY VALUERS] as Court Expert Valuer to value the said real property.
  3. Where, after the parties have conferred pursuant to paragraph 6 and where there is no agreement as to the value of a business, company or partnership interest the parties shall sign and provide to [INSERT AACOUNTANT] a joint letter of engagement to engage [INSERT AACOUNTANT] as Court Expert Valuer to value the said business, company or partnership interest.
  4. Where, after the parties have conferred pursuant to paragraph 6 and where there is no agreement as to the value of superannuation interest the parties shall sign and provide to [INSERT SUPER VALUERS] a joint letter of engagement to engage [INSERT SUPER VALUERS] as Court Expert Valuer to value the said superannuation interest.
  5. That each of the parties shall provide, as and when required by a Court Expert Valuer, the documents and information sought by a Court Expert Valuer, and access to any property or books of account or record for the purposes of preparing his or her report.
  6. That the Court Expert Valuer is appointed a Court Expert pursuant to rule 15.09 of the Federal Circuit Court Rules 2001.

Mediation

  1. The parties agree to attend a mediation in [INSERT]on [INSERT] …/..OR

at a time and date to be agreed but no later than the earlier of [INSERT] and as soon as practicable after the date for disclosure provided for in paragraph 3.

  1. The parties agree to appoint Mr / Ms [INSERT] as mediator of these proceedings…./…OR

Unless the mediator is otherwise agreed, the Applicant shall provide to the Respondents the names of the three (3) proposed mediators.

The Respondentsshall nominate one (1) of the proposed mediators to conduct the mediation.

In the event the Respondents fails to nominate a mediator within seven (7) days of receiving the information, referred to in Order 18 hereof, the Applicant shall nominate the mediator.

  1. The parties shall comply with any reasonable request of the mediator to provide information and documents to conduct the mediation.
  2. The costs of the mediator shall be met by the parties equally.

Arbitration

  1. That the financial proceedings in this matter be referred to arbitration[1] to be conducted by [INSERT] a prescribed arbitrator under the Family Law Regulations or an arbitrator whose name is agreed upon by the parties or failing agreement, by an arbitrator nominated by the chairperson for the time being of the Australian Institute of Family Law Arbitrators and Mediators [2].
  2. That the costs of the arbitration be shared equally between the parties, unless the parties agree otherwise in writing.[3]
  3. That at the end of the arbitration, and the making of an award, the arbitrator shall inform the court that:

a)the arbitration has ended and

b)an award has been made,

by filing a certificate stating those facts[4].

  1. That either party be at liberty to apply for registration of the award under regulation 67Q. [5]
  2. That the parties otherwise comply in all respects with the Family Law Regulations that apply to arbitration.
  3. That the matter be adjourned to [INSERT] for further mention, directions and orders with respect to any matter arising from the arbitration.

Costs

  1. That the costs of and incidental to this application be reserved.

1

[1] Sec 13E

[2] Reg 67B(d) – AIFLAM is the body nominated by the Law Council of Australia which keeps the list of legal practitioners who are prepared to provide arbitration services under the Act.

[3] This re-states Reg 67 content.

[4] Reg 67P(4) does not specify the way the arbitrator informs the court so the UCPR method of notice to the court by mediators and case appraisers of the end of their role is suggested.

[5] This direction is suggested to remind practitioners of the need to have the award registered.

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