Amaretti and Amaretti

[2009] FamCA 420

FAMILY COURT OF AUSTRALIA

AMARETTI & AMARETTI [2009] FamCA 420

FAMILY LAW – PRACTICE AND PROCEDURE – Interim hearing

APPLICANT: Mr Amaretti

RESPONDENT: Ms Amaretti

INDEPENDENT CHILDREN’S LAWYER: Julie Redman

FILE NUMBER: ADC 3394 of 2007

DATE DELIVERED: 28 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 28 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Dickson

SOLICITOR FOR THE APPLICANT: Lempriere Abbott McLeod

COUNSEL FOR THE RESPONDENT: Mr A Barnes

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms M Ross

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Alderman Redman

Orders

1. That the affidavit filed by the husband on 14 April 2009 be uplifted and returned to the husband’s solicitor forthwith.

2. That the time for the husband to file and serve his affidavit of evidence in chief be extended to 4:00pm on 21 May 2009.

3. That the time for the husband to file and serve the affidavit of evidence in chief of Dr P be extended to 4:00pm on 18 May 2009.

4. That further consideration of this case be adjourned to 9:15am on 28 May 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3394  of 2007

MR AMARETTI

Applicant

And

MS AMARETTI

Respondent

EX TEMPORE REASONS

1. This is a matter which is effectively part‑heard, although it involves both property and children's issues and only the children's issues are subject to Division 12A.

2. It was hoped today that the parties would have filed their affidavits and the matter would be ready to be listed for a conclusion hearing.  We are of course still waiting for the report of Ms T, but that is not due until 15 May 2009.  When I set this regime up on the last occasion, it was everyone's view, including mine, that we did not need to have Ms T’s report before the matter was listed for a final hearing.

3. Unfortunately today the matter is not ready to be listed because the husband's affidavit, is inappropriate in so far as it addresses the children’s issues.  To explain that further, in my view the husband's affidavit, which was filed on 14 April 2009, is inappropriate as an affidavit of evidence in chief.  It includes many unnecessary and irrelevant facts, and it dwells too much on historical issues.  The husband relates incidents that occurred many years ago, and which are of limited relevance now.  There should be more concentration on recent events.

4. As a result of the approach taken by the husband and his solicitors the affidavit is 64 pages long and comprises 299 paragraphs.

5. I am not so fussed about that part of the affidavit dealing with property settlement from that point of view.  However, I have raised issues with the husband's counsel as to certain matters deposed to in that part of the affidavit which seem to me can only have an impact upon the valuation of the assets, despite that not being an issue which is outstanding.  The parties have agreed the value of all assets and we have a settled balance sheet before the court. 

6. In the circumstances I propose to uplift the affidavit, return it to the husband’s solicitors and extend the time for a substituted affidavit to be filed and served.

7. The other issue which I have raised is that there has not been non compliance with the Rules in relation to paginating and indexing the annexures, and that makes it impossible for the judicial officer to follow the affidavit.  Thus I return it for that reason as well.

8. The husband also has not been able to comply with the order for the filing of a medical report.  Initially it was to be from a Dr B.  The husband is now consulting another doctor - namely, Dr P - and he has been unavailable to complete an affidavit.  An extension of time is sought to do that, and that is consented to.

9. I note that other documents that have been filed have been filed late, but no issue is taken by either party about that, because both parties are in default, frankly, and I do not propose to spend any more time on this matter today to make any further orders about that.  I will proceed on the basis that those documents are before me.

10. I have also raised an issue about the orders that the parties seek in relation to their superannuation entitlements.  I will not repeat all that has been said, but that is a matter which the parties and their legal advisers will consider and, in my view, is a matter which they should be able to reach agreement about fairly readily.  That might entail a change to the orders that each party seeks by way of property settlement.

11. In terms of the listing of this matter for a conclusion hearing, unfortunately I cannot give the matter a date today.  I will be able to give the matter a date, though, in May 2009.  Thus the matter should be adjourned until late May, and that will serve not only that purpose but by then the report of Ms T will be available, the further affidavit of the husband will be available, and any issues arising from that can be addressed on the adjourned hearing date.

12. To enable the parties to plan for the conclusion hearing, I propose that that be listed in September 2009.  There is a possibility that it could be listed in August, but that can all be addressed on the adjourned hearing day.  I also note that five days is required for the hearing.

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland J delivered on 28 April 2009.

Associate