Aitken and Murphy

[2012] FamCA 136

FAMILY COURT OF AUSTRALIA

AITKEN & MURPHY [2012] FamCA 136

FAMILY LAW – PRACTICE AND PROCEDURE - Application for adjournment of all proceedings pursuant to s 90SN(9) – Financial conciliation conference not yet held – Material said to be incomplete – Lack of disclosure – Argued that court should not commence to hear further interim proceedings – Leave granted for such oral application to be made – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Aitken

RESPONDENT: Mr Murphy

FILE NUMBER: MLC 11907 of 2010

DATE DELIVERED: 13 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 13 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: TJ Mulvany & Co

Orders

IT IS ORDERED:

1. THAT the oral application made with leave by Counsel for the respondent for the dismissal of proceedings as a result of non-compliance with s 90SM(9) of the Family Law Act1975 (Cth) be dismissed.

2. THAT a transcript of the proceedings this day from the commencement of the proceedings and the announcement of appearances of Counsel to the break in proceedings at approximately 11.50 a.m. be transcribed, placed upon the Court file and made available to all parties including the subpoenaed firm.

3. THAT a further transcript of proceedings this afternoon, from the commencement of the further submission of Mr Brown SC at approximately 3.20 p.m. and until 4.00 p.m. be transcribed, placed upon the Court file and be made available to all parties including the subpoenaed firm.

4. THAT a transcript of the extempore reasons for judgment be prepared, placed upon the Court file and made available to the parties.

5. THAT the proceedings of and concerning the subpoena issued by the respondent’s solicitors on 7 February 2012 and the notice of objection thereto filed by the applicant’s solicitors on 15 February 2012, and now involving the subpoenaed firm on matters put in issue, be otherwise adjourned to a date to be fixed before Young J.

6. THAT a transcript of the whole of the proceedings, including the mention of the matter at 10.00 a.m. on 1 March 2012 be transcribed, and that such transcript be placed upon the Court file and made available to the parties and to the subpoenaed firm.

7. THAT the oral recording of the proceedings that day, as has been listened to by Senior Counsel for the subpoenaed firm and his solicitor, be otherwise made available upon request to the solicitors and Counsel for each of the applicant and respondent so that, within Court time and within the Court building they may each have the opportunity to listen to that recording of proceedings.

8. THAT, if the solicitors and Counsel for the applicant do propose to make, file and serve any further submission on the subpoenaed document issue hereafter identified then such submissions are to be prepared, filed and served upon the solicitors for the respondent and the subpoenaed firm at least five (5) clear days prior to the adjourned hearing date, as notified.

9. THAT the costs of and incidental to the hearing this day, insofar as they may be apportioned to and relate to the subpoenaed file issue, and time taken therewith, they then be reserved for determination as to all issues of payment and/or quantum to the adjourned hearing date.

10. THAT the file of Kennedy Partners in this matter, as has been produced in Court this day pursuant to a subpoena remain with and be held by the Court in safe custody and by the subpoenas clerk pending further order of the Court.

IT IS NOTED

A.THAT Counsel for the respondent has prepared and filed with the Court on 8 March 2012 submissions upon the release of documents pursuant to the subpoena addressed to Kennedy Partners and upon the applicant’s assertion of privilege.  Counsel maintains that the 26 paragraphs of that submission cover all relevant matters and include particulars of any alleged misconduct or fraud on the part of the applicant as is necessary to prove to invoke s 125 of the Commonwealth Evidence Act.

B.THAT Counsel for the applicant has requested further and better particulars of such allegations of misconduct and fraud and has heard the response of Counsel for the respondent in that regard.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 11907 of 2010

Mr Aitken

Applicant

And

Mr Murphy

Respondent

REASONS FOR JUDGMENT

1. The matter of Aitken & Murphy and now involving Kennedy Partners Solicitors  as a subpoenaed firm is listed before me for a discrete hearing this day.  Mr Davis of Counsel appears for the applicant, Ms Smallwood of Counsel for the respondent and Mr Brown of Senior Counsel has announced his appearance on behalf of the subpoenaed firm. 

2. There is initially a preliminary application raised by Counsel for the respondent, and these ex tempore reasons for judgment address that matter and my resultant determination thereof.  First, I record that, without opposition, I have given leave to Mr Davis to file a further amended initiating application and that document has been produced to the Court this day.  It had earlier been served upon the respondent. 

3. That application further crystallises interim orders that were previously sought in the earlier amended application that had been filed on 9 November 2011 and, for interim orders sought, the substantial variation is that two additional financial orders are sought, the first being a payment of $390,000, said to be in full and final satisfaction of terms of settlement arising out of Victorian Supreme Court proceedings and not involving the respondent, and further, the sum to be paid to the applicant’s lawyers has increased from $150,000 to $200,000.  I note that there also has been a change of lawyers on the record for the applicant and subpoenaed firm were formerly his lawyers on the record.  The firm Barbayannis Lawyers now represent the applicant.

4. Ms Smallwood has initially directed the attention of the Court to section 90SN(9) of the Family Law Act 1975 (Cth), which records that this Court must not make an order in de facto property disputes and related issues dealt with under Part VIIIAB – Division 2, unless there has been a financial conciliation conference held. The section, however, does record a number of exceptions to that mandatory rule, the first and most significant being that it does not apply to interim proceedings, or where the parties consent to such an order. Otherwise, in subparagraphs (b) and (c), there are exceptions relating to the need to make an order urgently, or where special circumstances exist, or where such a conciliation conference would not be practicable.

5. The primary submission of Ms Smallwood was that the obligation imposed upon the Court by s 90SN(9) is mandatory and should be applied in this case, there being no evidence before the Court in affidavit material filed by the applicant as to any need for an urgent order or other special circumstances. By inference Ms Smallwood implied that the onus of proof should be upon the applicant.

6. I pause to record that a conciliation conference was first ordered by Registrar Lethbridge on 28 March 2011.  That conference was to be held on 20 June 2011, but subsequently was adjourned, initially to 19 September of last year, and then again to 9 November of last year.  As of today that conference has still not occurred and there may be any number of practical discovery and disclosure orders, or other orders as to the obtaining of final valuations, which give a measure of common sense to the continued adjournment of that application.

7. I have been the case manager of these proceedings since they were transferred to me from another judge.  I have had the opportunity to make case management or other direction orders on a number of occasions, and I have also heard a substantial interlocutory matter relating to the granting of a certificate pursuant to section 128 of the Commonwealth Evidence Act 1995.

8. By reference to recent orders I observe that I have described the proceedings before me as interim orders, such as in subparagraph B of the notations to the orders made 1 March 2012, and further, I specifically record paragraph 2 of my orders of 1 February 2012 whereby I adjourned to this hearing a one-day interim defended matter.  Indeed, to go further back the orders of 15 December 2011 order 1 thereof, records the adjournment for further hearing of the interim orders then sought by the applicant in his application field 9 November 2011 for hearing as a one-day interim defended matter on 1 March 2012, which date was ultimately adjourned to this day.

9. In summary therefore, the previous orders of the Court do sufficiently highlight that, at all times, this Court has approached the hearing and determination of the interim orders sought, as distinct from the final property and financial orders sought, on the basis of an interlocutory hearing and thus where orders would be made until further order.

10. In this case, and by the application filed by leave this day, the applicant clearly seeks a substantial sum of money to be paid by way of three separate characterisations.  The total is approaching, but less than, $1 million.  Those interim property orders, if that is ultimately how they are characterised, need be sought as a stage in the hearing and determination of the final property proceedings.  Whatever else can be said about this case, it is that there are ongoing property and financial disputes, which are still the subject of alleged non-disclosure, or inappropriate disclosure, or lack of material filed, and still need various valuations to be obtained.

11. I am therefore of the view that the proceedings before me are interim proceedings.  I will not make any final order today, but the orders that I make will be made until further order.  It may well be that if any monies were ordered, and I prejudge no issue, there will be orders for them clearly to be brought to account in the adjustment of final orders.

12. I had paused momentarily in the delivery of this ex tempore judgment, which is given without leaving the Bench, to reflect on any perceived difference between interim orders and orders made until further order, but for the purposes of these reasons, I am satisfied that in an interim hearing this day, all orders I make will be until further order, within the wider context of this case. 

13. Accordingly, I rule upon the submission of Ms Smallwood that it is not successful. I will not defer all interim hearings in these proceedings pending the preparation and readiness of the case for a defended hearing. I record that a similar provision exists in section 79(9) of the Family Law Act 1975, under the umbrella of property in marriage disputes within Part VIII of the Act.

I certify that the preceding Thirteen
(13) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 13 March 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………