Claridge and Claridge (No. 2)

[2007] FamCA 1275

FAMILY COURT OF AUSTRALIA

CLARIDGE & CLARIDGE (NO. 2) [2007] FamCA 1275

FAMILY LAW – PRACTICE AND PROCEDURE – Conciliation Conference – Further information to be provided to the single expert

Family Law Act 1975 (Cth)

APPLICANT: Mrs Claridge

RESPONDENT: Mr Claridge

FILE NUMBER: MLC 648 of 2007

DATE DELIVERED: 2 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 2 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T.J. Serra

SOLICITOR FOR THE APPLICANT: Meerkin & Apel

COUNSEL FOR THE RESPONDENT: Mr G.R. Atkinson

SOLICITOR FOR THE RESPONDENT: Dimitra Iatrou Pty Ltd

Orders

1. That all necessary times be abridged to enable the Form 2/Form 2A application in a case (returnable on 22 October 2007) to be heard on this day.

2. That each of the husband and the wife comply with all reasonable requests by Mr W, forensic accountant (“the single expert”) for the purpose of providing information including attendance at any meetings at reasonable times specified by the forensic accountant.

3. That the parties, through their solicitors, attend a Conciliation Conference to be appointed as soon as practicable upon completion of the report by the single expert.

4. That until further order each of the husband and the wife be and is hereby restrained, personally and by their agents, from removing chattels from the property at X.

5. That the Husband and the Wife co-operate such that, pending final trial of these proceedings, the billable person referred to in any utility accounts, including council rates for the said property at X shall be the Wife and that the husband contact the local council and Western Point water within 7 days to advise them to send all accounts to the wife at P. O. Box … C.

6. That the said return hearing date of 22 October 2007 be vacated.

IT IS FURTHER ORDERED (NOT BY CONSENT):

1. Than the costs of provision by Mr J of R Company, accountants of the documents and information reasonably requested of him by Mr W in the course of preparation of Mr W’s single expert report in these proceedings be paid out of, the funds currently invested on behalf of the parties in trust deposit under the control of Meerkin & Apel, Solicitors (“the trust funds”) PROVIDED THAT:

   (a)the costs of Mr J are not to exceed $8,800.00 (inclusive of GST)

   (b)a copy of Mr J’s detailed invoice is provided to both parties;

   (c)a list of documents and information as provided to Mr W by Mr J is provided by Mr J to both parties

   (d)each party have liberty to apply in the event that it is indicated that the costs of Mr J exceed the sum of $8,800.00 (inclusive of GST) or are anticipated to do so.

2. That the Husband do all things he is reasonably able to ensure that Mr J provides the documentation and information referred to in paragraph 7 hereof to Mr W on or before 30 November 2007 and IT IS FURTHER REQUESTED of Mr J that he facilitates this time line.

3. That in the event Mr J is unable or unwilling to provide the documents and information within the prescribed time line pursuant to paragraph 8 hereof then the Husband shall retain an alternative accountant on the same basis and terms (including terms of payment) as referred to in paragraphs 7 & 8 hereof.

4. That from the trust funds there be forthwith paid out to TRU Energy the sum of $549.38 in payment of the “Impending Legal Action Notice” issued 7 September 2007.

5. That all questions of any financial adjustment(s) between the parties arising out of paragraphs 7 and 10 of these orders be matters for determination at trial if deemed appropriate by the trial judge.

FURTHER BY CONSENT:

1. That the Form 2 Application in a case of the Wife filed 24 September 2007 and the Form 2A Response of the Husband filed this day be otherwise dismissed.

2. That all extant interim issues (as noted in the Orders of this Court ordered 26 June 2007) be otherwise adjourned for hearing in the Judicial Duly list on a date to be fixed by the Listings Registrars subsequent to the completion of the Conciliation Conference.

3. Certify for Counsel.

4. The transcript of my reasons given this day shall be prepared and retained on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 648 of 2007

MRS CLARIDGE

Applicant

And

MR CLARIDGE  

Respondent

REASONS FOR JUDGMENT  

1. The parties separated in 2005, and are in the midst of ongoing litigation in relation to their financial affairs, the expense of which must quickly be becoming disproportionate to the assets that might be available for ultimate distribution. 

2. What is clear - and this is agreed by everybody - is that the case cannot be moved forward until there is a forensic accountant's report.  In fact, that has been clear for some time, and there have been various court orders and measures put in place to achieve that.  Sadly, it still has not come to fruition, and the parties are here today pretty well back near the beginning of things: still no forensic accountant's report, still no conciliation conference, still no closer to either being able to have settlement discussions that are meaningful, or to have the case ready for trial.

3. I am pleased that with the assistance of their lawyers they have at least reached agreement today on a number of issues as to how to move the case forward, and they have left only two issues for me.  The first is as to who should bear the costs of an accountant who, on behalf of the husband and/or his entities, will gather the material towards the preparation of the forensic accountant's report, and secondly, who should pay a “TRUENERGY” account of $549. 

4. Let me deal with the “TRUENERGY” account first, to put that to one side.  This is an account due in relation to the X property, in which the wife and children have been living since January of this year.  The bill is referable to a period in which she has been living in the home. 

5. The wife says that the husband should pay it, because it is in his name.  He caused her inconvenience and expense at some point, allowing the electricity to be cut off, and in any event, she says he uses the property for up to one-seventh of the week. 

6. The husband says the bill should be paid from joint monies held in trust, and I agree with him.  It is a bill that should be paid, and the characterisation left to the trial Judge.  If the trial Judge ultimately has a particular view based on all the information that will be available to him or her, an adjustment can be made.  In the meantime, the bill should simply be paid.  The wife cannot be heard to complain, given that she is the one living in the property.

7. So far as the accountant's fees are concerned, the wife says that the husband should do the work himself and not incur any accountant's fees.  She says that otherwise the limited funds available to the parties are being further diminished.  She says that one of the letters written by the forensic accountant suggested that the husband's accountant has said that it is the husband who would provide all the material himself.

8. I am not at all critical of the fact that the husband is relying on his accountant to prepare the sort of detailed material that both parties have obviously envisaged would be required for the firm of M Company to prepare the forensic report.  I am not overly concerned that at one point that firm had indicated that they believed that the husband was to provide the material directly.  Mr Atkinson does point out that the husband's accountant was owed money at that point.  In any event, what has transpired between the husband and his accountant, is that there is now some sort of agreement that the accountant is prepared to do the work. 

9. The husband’s accountant has provided a rough quote of $8800.  I do not blame the wife for being concerned about the lack of detail surrounding that.

10. If I consider the on-going litigation, and the lack of progress, I regard it as urgent for this report to be prepared.  It is realistic for the husband's time to be used on his business.  It is realistic that joint monies at this point be used so that the matter can be progressed, and it is entirely reasonable that the trial Judge determine things if a different approach is required once the evidence is heard.

11. There should be a ceiling of $8800 on the amount that can be paid to the husband's accountant.  I would hope though that it might be considerably less once the work is undertaken.  It is entirely reasonable that the husband should take any of simple steps that are within his domain, so that the fees are not unnecessarily spent, and I expect that he will do that because the monies from which the accountant will be paid are monies that belong to both parties.

12. The accountant must provide a detailed account of the services rendered.  That must be provided to both parties, as must the material that the accountant brings forward. 

13. I am happy to word the order in the way that counsel might agree, so that for example the sum of $8800 (or hopefully less) will come initially from whatever is left of the $20,000 fund, and beyond that from the balance of monies held.  I will leave that to Counsel to draft the orders, including that the hearing date of the 22^nd shall be vacated.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  2 October 2007