Cook and Cook

[2011] FamCA 700

FAMILY COURT OF AUSTRALIA

COOK & COOK [2011] FamCA 700

FAMILY LAW – Part heard proceedings – Disclosure of document on a continuous basis

Family Law Act 1975(Cth)

APPLICANT: Ms Cook

RESPONDENT: Mr Cook

FILE NUMBER: MLF 1997 OF 2003

DATE DELIVERED: 29 August 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 29 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Spicer

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

ORDERS

IT IS ORDERED:

1. THAT all extant applications be further listed for case management and directions before Young J at 10.30 a.m. on Monday 3 October 2011.

2. THAT each of the husband and wife forthwith photocopy or provide to their solicitors for delivery to the solicitors for the other party all credit card statements and bank statements for each of them personally from 30 June 2009 until the current date and continue thereafter to provide such statements on a monthly basis to the other party.

3. THAT the husband do all acts and things to ensure that he provides to the wife, or otherwise causes his solicitors to provide to the wife’s solicitors:

   (a)all taxation returns and annual accounts of all companies and trust entities reported upon by Mr B, Chartered Accountant, for the financial years ended 30 June 2009 and 30 June 2010;

   (b)the husband’s personal taxation returns, Group Certificates and all Notices of Assessment for taxation as issued by the Australian Taxation Office for the financial years ended 30 June 2009 and 30 June 2010;

   (c)all documents pertaining to the past or current interests of the husband in any superannuation fund as and from 1 July 2009 and until the further hearing date;

   (d)disclosure of any and all payments made by or on behalf of the husband to Ms C Cook (formerly D) from 30 June 2009 to the date of the adjourned hearing.

4. THAT on or before 1.00 p.m. Thursday 29 September 2011 each of the husband and wife make, file and serve an updated and complete statement of financial circumstances disclosing therein with particularity all income, assets, financial resources, superannuation and liabilities, inclusive of legal costs and disbursements outstanding and other corporate liabilities for which they are and remain solely liable.

5. THAT the costs of each of the husband and wife of and incidental to the hearing this day be reserved for determination on an adjourned hearing date.

6. THAT in respect of past costs reserved from the hearings on 9 June 2011, 29 July 2011 and this day the solicitors for each party are to prepare written submissions of a reasonable length which are to be filed and served on or before 29 September 2011 and which are to address:

   (a)        the award of costs as sought;
   (b)        the basis upon which such award of costs is sought.

7. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel for the wife and Counsel for the husband.

IT IS NOTED

A.THAT in legal submissions this day the wife’s Senior Counsel presented to the Court the current costs agreement and amending letter a between the wife and her solicitor and that document was marked as exhibit “W2” together with what is said to be a bill of costs in taxable form and totalling $54,248 for legal advice, appearances and all related and necessary transactions and disbursements covering the period April 2011 – August 2011 and that document remains a matter of contest between the parties and may subsequently be a document that is necessary to submit for taxation before a Registrar of this Court.

IT IS NOTED that publication of this judgment under the pseudonym Cook & Cook 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 MELBOURNE

FILE NUMBER:  MLF 1997 of 2003

Ms Cook

Applicant

And

Mr Cook

Respondent

REASONS FOR JUDGMENT

1. In the matter of Cook, the first application before me today is for the Court to consider and then order upon a level of continuing discovery and disclosure by or on behalf of the husband of financial and corporate documents.  Mr St John of Senior Counsel appears for the wife.  Mr Spicer of Counsel appears for the husband.  Both clients and instructing solicitors are in Court.

2. On behalf of his client, Mr Spicer has advised the Court that the husband’s former business partner, Dr E, was made bankrupt on or about 27 June 2011 upon a Debtor’s Petition.  That information was conveyed by letter to the wife’s solicitors on or about 1 July of this year.  There presently remain alive in the Supreme Court of Victoria proceedings where the liquidator of various subcontractors, creditors and others have proceedings now against the husband only as the sole remaining defendant.

3. Those proceedings have a court-appointed mediation date before an Associate Judge on 27 September of this year.  What I have decided after discussion with Counsel in open court is to bring the matter back before me at 10.30 a.m. on Monday, 3 October of this year for further mention, case management or otherwise for issues to be raised with the Court on proper material filed and served.

4. In the meantime an issue of continuous financial disclosure has arisen.  Mr St John has, upon written submission, identified five potential orders that are required to be enforced as against the husband for taxation and other financial statements and documents to be provided as soon as practicable.  Mr Spicer has conveyed to the Court the financial concern of his client and his instructing solicitor as to the costs of disclosure of such documents, including photocopying all such documents and providing them in the context that the Court mediation may either be unsuccessful or produce financially a disappointing outcome to the husband and by inference, to the parties in these proceedings.  I make no comment or finding in any way upon such mediation or the outcome therefrom. 

5. What I do intend to do is to have some level of continuing disclosure of documents, and to that extent, I will amend as I consider appropriate the documents requested on behalf of the wife’s solicitors.  The proposal that Mr Spicer submitted to the Court was that both the husband and wife make, file and serve an updated financial statement inclusive of all of their current assets, financial resources, liabilities and financial commitments, including their legal costs owing and other current debts.  That would be appropriate.  I will so order and that document can be filed and served by both parties on or before Thursday, 29 September.  I pick that day as it is two days after the mediation in the Supreme Court and two working days before the return of the matter in my Court. 

6. I will have disclosured all of the taxation returns and corporate accounts and entities for 30 June 2009 and 30 June 2011 years.  I record that Mr Spicer has advised the Court that the husband and his accountants have or are very close to final completion, approval and lodgement of all such documents for the financial year ended 30 June 2010.  They can and should then be made available to the wife’s solicitors.  I make no orders in respect of the current financial year.  Likewise, in respect of any group certificates or notices of assessment issued by the Australian Taxation Office to the husband, they can and should be provided for both the 2009 and 2010 financial years. 

7. As to superannuation, the husband has various funds as were identified in the part-heard defended proceedings from two years ago and any monthly or quarterly statements or other information as to the value of those funds or the drawings thereon should be disclosed from 30 June on a continuous basis.  There does seem to be agreement that each party should provide their credit card statements and bank records to the other.  I will make that as a mutual order.  I record that the husband has banking arrangements with National Bank and with Westpac, and the wife has such banking arrangements with Commonwealth and ANZ. 

8. If there has been any payment made by or on behalf of the husband to his now wife in the lead-up to their marriage or post-marriage that should be disclosed.  Many of the documents required can conveniently be photocopied by the husband, prepared by him and delivered to his solicitor for delivery to the wife’s solicitor.

9. I am mindful to limit the legal costs incurred by both parties in this exercise, and that is underlying the limitation on the disclosure of documents that I have made, but nevertheless, as these proceedings are part heard, it is fundamental and very appropriate that there be a real level of meaningful and continuous disclosure so as that the wife is not financially disadvantaged more than is otherwise apparent from the very nature of the husband conducting the business, corporate and taxation affairs, and the Supreme Court proceedings, as he is permitted so to do by orders of this Court of 9 June 2011, but always subject to his strict compliance with the terms imposed by those orders, and in particular, I highlight paragraph 2 thereof.  Accordingly, I will pronounce orders of the Court in furtherance to those brief ex tempore reasons delivered without leaving the bench.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 29 August 2011.

Associate: 

Date:  14 July 2011