Bradley and Bradley

[2009] FamCA 102

FAMILY COURT OF AUSTRALIA

BRADLEY & BRADLEY [2009] FamCA 102

FAMILY LAW – PROCEDURE – Case management orders

APPLICANT: Ms Bradley

RESPONDENT: Mr Bradley

INDEPENDENT CHILDREN’S LAWYER: David Schetzer

FILE NUMBER: MLF 877 of 2006

DATE DELIVERED: 27 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 27 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.F. Holmes

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr D.T. Cash

SOLICITOR FOR THE RESPONDENT:

Orders

1. That by the 10th March 2009 the Husband shall provide to the Wife's solicitors:-

(i)     All documents as set out in paragraphs 2 and 4 of my Orders of the 5th September 2008.

(ii)     Details concerning the cars as ordered by Bennett J on the 12th February 2008   paragraph 3.

(iii)   Details of the agreement he claims he has made with the bank regarding mortgage payments.

(iv)   Up to date details of the progress of the Supreme Court proceedings on foot against him brought by Mr G including Further and Better Particulars of the Statement of Claim, the Defence and any procedural Orders and future listing dates.

(v)     Details and a copy of the Statement of Claim and the Judgment entered against him in County Court proceedings brought by his parents.

1. That all Financial Applications are adjourned for Mention before me on the 11th March 2009 at 10am and in the event that the Husband has not complied with these Orders Financial Applications may be ordered to proceed on an undefended basis.

1. That the parties and the children, the elder child J born … July 1998 and the younger child R born … February 2003 attend upon Mr H for the purpose of the preparation of an updated Family Report with the parties to pay equally the cost of the assessment and Family Report.

1. That the parties attend upon a psychiatrist nominated by the Independent Children's Lawyer for the purpose of assessment and preparation of psychiatric reports with the parties to pay equally the cost of the assessments and reports.

1. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. That all children's issues shall be adjourned to a Telephone Mention before Registrar Field on a date to be notified to the parties in mid April 2009.

3. That a transcript of my reasons given today shall be prepared and retained on the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 877 of 2006

MS BRADLEY

Applicant

And

MR BRADLEY

Respondent

REASONS FOR JUDGMENT

1. This case started before me on 5 September 2008.  I made orders for various documents to be exchanged, in particular, the husband's personal tax returns for the years ending 06, 07 and 08, as well as returns for T Pty Ltd and M Business, which encompassed his business and the B Superannuation Fund.  I also ordered him to make available profit and loss and balance sheets for the same financial years and the same entities.  I was satisfied that they were the fundamental documents to ensure disclosure of the husband’s financial position so that financial matters could be resolved.

2. Today I find that, despite my orders and several subsequent extensions by Registrar Field, those orders have not been complied with.  I am also told that the mortgage over the property in which the wife and children are living has also not been paid.  Put in its simplest possible terms, I am unimpressed with the excuses that have been offered on behalf of the husband.  It is simply not good enough. I am concerned that the case needs to be moved forward, and there should be no further delay just because the husband has failed to comply with the orders and the ample opportunities he has had not only to provide this material to the wife, but to comply with his statutory obligations to the Australian Tax Office.

3. Mr Holmes for the wife has asked me today to contemplate going ahead with the case without the husband being given further time. 

4. I propose a halfway course.  I am going to allow him six weeks, which is the time asked for by his counsel.  In that time he must provide:

   a)The documents that are set out at paragraph 2 of my previous orders;

   b)The details in relation to the value of cars referred to in orders by Bennett J that are as old as February 2008;

   c)The details of the agreement he claims he has made with the bank suspending mortgage payments;

   d)Up-to-date details of the progress of Supreme Court proceedings on foot against him brought by Mr G, including further and better particulars of the statement of claim, the defence and any procedural orders and future listing dates; and

   e)Details and a copy of the statement of claim and judgment entered against him in County Court proceedings in his parents' favour.

5. There are two other aspects that have been dealt with in court.  The first relates to documents to be produced by the wife.  The husband claims that she has failed to produce documents that she was ordered to produce.

6. There are a number of difficulties with his application, the most pressing that it has been so incoherently presented that I cannot easily make head or tale of what is being claimed.  When Mr Cash started giving submissions on his behalf, it appeared that he was claiming that the wife had not produced any of the documents ordered by me in my Orders of 5 September 2008.  Mr Cash had to quickly correct that when he realised that Mr Holmes had in his possession today a large folder of documents that had been produced to the husband’s solicitors.

7. Mr Cash then said that it was documents referred to by the husband's solicitor in a letter by 8 January 09 that had not been produced.  Again, once the relevant letter was produced, it seemed that some of the documents had in fact been produced by the wife, there was an explanation as to why others were missing, some were about relatively minor issues, and none appeared to be in the category of the fundamental financial documents that the husband had failed to produce.

8. It is simply impossible to approach the matter on any sensible basis, given the way it was presented for the husband.  Moreover, I have made it clear to counsel for the husband that if the odd page of various documents is missing, and the wife has given an explanation, she can be cross‑examined about that.  She will stand or fall on her own evidence, and of course they can seek to issue any subpoenas if they believe there is something sinister about any gap.

9. The other outstanding issue today relates to the two young boys of this marriage.  I said earlier I remember the case well because of the poignancy of the evidence about these two young boys, described by the ICL as “delightful”.  There is an existing order, made on 18 May 2007, for the boys to spend five nights’ per fortnight with their father.  However, for his own reasons, the husband is choosing to see them only each Friday evening for several hours.

10. Sadly, any reasonable proposal for the time to be in accordance with the court orders is rejected by the father, who says he is overwhelmed and simply unable to make the appropriate arrangements.  When I suggested today that if he is genuinely overwhelmed and not able to see his way clear to spending longer with the children, then I could formalise orders for the one night a week to provide certainty for the boys and to bring an end to the litigation.  I emphasised it could be adjusted in the future if there was a need.  The husband rejects that proposal, even though the children remain in an unenviable sort of limbo at this point. 

11. The ICL has sought that there be an updated Family Report.  That is sensible.  It is the only way I can ascertain what is going on for these young boys who must be mightily confused, being caught in the middle of such a bizarre conflict.

12. Secondly, the ICL has suggested that there be a psychiatric assessment of each parent.  Again, that strikes me as sensible and indeed fundamental to the inquiries that need to be made on behalf of these boys.  The husband objected through counsel on the basis that he cannot afford his half share of the fees.  I reject that on the evidence that I have before me, and take the view that it is fair for both parents to pay half of the associated costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  27 January 2009