Calder and Calder

[2016] FamCA 839

FAMILY COURT OF AUSTRALIA

CALDER & CALDER [2016] FamCA 839

FAMILY LAW – PROCEDURE – where the matter is listed for final hearing – where orders are made for disclosure and tax returns – where all other matters are adjourned for mention.
APPLICANT:	Ms Calder

RESPONDENT: Mr Calder

FILE NUMBER: ADC 585 of 2014

DATE DELIVERED: 13 October 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 13 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Burrell

SOLICITOR FOR THE APPLICANT: David Burrell & Co

COUNSEL FOR THE RESPONDENT: Mr R. Richards

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

Orders

1. That all applications for final orders be adjourned for hearing on 1 May 2017 at 10 am as a 5 day primary matter.

2. That the matter be listed for mention at 9.15 am on 15 December 2016.

3. That within 28 days the husband disclose to this Court and to the wife all of his paid and unpaid legal fees, accounting, valuation and counsel fees relevant to these proceedings, including the source of such payments up to and including 31 August 2016.

4. That the husband do all such acts, matters and things and use his best endeavours to have as soon as practicable all 2016 financial year financial statements and tax returns relating to the parties, the Calder group or their investments prepared and to make available copies of same to the wife and B Accountants, being the jointly appointed valuer herein.

5. That the husband use his best endeavours to provide the May and June 2016 financial management accounts as soon as practicable in respect of all of the entities in the Calder group to B Accountants and the wife.

6. That the husband will forthwith provide to B Accountants all of the documents as may be available to him and as sought in the letter from B Accountants to each of the parties’ solicitors dated 27 September 2016. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calder & Calder 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 ADELAIDE

FILE NUMBER: ADC 585  of 2014

Ms Calder

Applicant

And

Mr Calder

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. On 25 August 2016 consent orders were made in respect of the provision of further documents to attempt to advance this matter in general, but in particular to assist in the single expert, Mr B of B Accountants to prepare a valuation of the interests the parties have generally in the Calder group of companies and entities.  That order provided that the wife’s Application in a Case is to be re-instated, further applications and affidavits were to be filed and the matter adjourned for hearing until today with half a day allowed. 

2. Notwithstanding that it did not strictly comply with the provisions of that order, the Court was prepared to receive an Application in a Case filed 6 October 2016 on behalf of the wife, which seeks various orders for the further provision of documents and to the valuation of certain items.  It’s also noted that in in 1(h) of that application there is a claim by the wife for an increase in the amount that she currently receives pursuant to 3(b) of the order made on 2 April 2014.  Notwithstanding the relatively short notice of the application, the Court has been significantly assisted by the provision of an affidavit from the husband filed on 12 October 2016. 

3. As a result of the matters raised there is some agreement.  Irrespective of the parties’ agreement and their general desire to progress the matter to the point where there is a concluded balance sheet or asset pool and then hopefully for the parties to consider a way forward in terms of a resolution, I am conscious that in May 2016 the matter was listed for final hearing in the week commencing 24 October 2016.  If the matter had been able to be made ready the proceedings would have started as listed.  In any event, that date was vacated to enable documents to be provided and consideration to be given as to valuation issues. 

4. Notwithstanding the agreement, the Court is still concerned that the matter has not progressed to a point where the Court can have some confidence that the parties are focussed upon a resolution as opposed to the litigation.  I have determined that in the circumstances of this case the interests of the parties would be best served by listing the matter for hearing. 

5. It is a complex property matter.  I appreciate that there is some disagreement between counsel as to how much time is required, but I consider that it should  be listed for a five day primary hearing and by a careful consideration of the Court’s diary,  but also the timetable in terms of the preparation of what is likely to be a detailed forensic accounting report, the only months that are available for this matter to be listed are April and May 2017.  Because of the necessity that this matter be given a five day hearing time.  I propose to list the matter, notwithstanding that it is not necessarily entirely convenient to the wife’s solicitor in the week of 1 May 2017. 

6. I do not propose at this stage to make trial directions.  I am not asked to do so and I think that there is sufficient time to enable some of the valuation issues to be produced and finalised and for the parties to consider whether litigation is indeed the proper way forward.  In that regard the matter should come back for mention before me on 15 December 2016.  Counsel did not speak against that approach. 

7. Another issue was raised by Mr Burrell that relates to an order sought that moneys currently being received by the wife in the sum of $4000 per month pursuant to an order made in April of 2014 be increased to $6000 per month.  I do not propose to hear that matter today, nor indeed do I think it is proper that I hear it until and unless it has some formality in terms of the precise order that is being sought supported by an affidavit of the wife setting out the circumstances and basis upon which that order should be made. 

8. That is raised against a background of an order sought by the wife that the parties file and serve an up-to-date financial statement.  At this stage I do not consider that that is necessary until and unless the wife determines to bring an application.  It may be that the listing of the matter provides some focus and that the parties can reach some interim agreement.  The wife may consider that her financial resources are sufficient to see her through for what is a period of about five or six months.  Once trial direction orders are made that will of necessity include an update financial statement, but I do not think that it should be done at this stage, and I do not propose to order it. 

9. I have indicated to counsel that if such an application is brought it will present the Court with a difficulty in terms of when I can accommodate the argument, but I will do the best that I can and I do not want it to be seen that the listing of the matter for trial is in any way to be seen as putting off or attempting to avoid any application that may be brought. It seems to me the primary focus should be on listing the matter for trial and against the background of that the parties are better able to consider a settlement.  There is an end date.  For those reasons then I make the orders as appear at the commencement of these reasons.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 October 2016.

Associate:

Date:  24 October 2016