Daniels and Findlay

[2009] FamCA 539

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY [2009] FamCA 539

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: Mr Daniels

RESPONDENT: Ms Findlay

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 19 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 19 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.J. Combes

SOLICITOR FOR THE APPLICANT: Holt & McDonald

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the wife shall have leave to withdraw her Application in a Case filed 22 May 2009.

2. That the wife shall file and serve a Report from her General Practitioner Dr S as to her on-going medical conditions, her prognosis, and any likely expenses associated with her conditions by 19 August 2009.

3. That the wife shall endeavour to sell the parties’ motor home situated in the United Kingdom and shall fully account to the husband’s solicitors in writing for any sale proceeds within 7 days of receipt of funds.

4. That in the event that the parties’ motor home does not sell, the wife shall obtain two independent valuations and shall forward same to the husband’s solicitors by 23 October 2009.

5. That the parties shall appoint B Chartered Accountants to conduct an audit of Y Company (UK) Ltd and B Accountants shall conduct the audit by 15 September 2009 and provide a report to the husband’s solicitors and to the wife.

6. That the costs of the audit shall be limited to £2,000 to be paid from the monies held on trust for the parties by Holt & McDonald at first instance and then determined at trial.

7. That the wife shall produce auditable accounts for the last two years to B Chartered Accountants by 21 August 2009.

8. That the wife shall file and serve her updated financial statement by 4.00pm on 22 June 2009.

9. That the parties shall file a joint balance sheet in accordance with paragraph 6 of Bryant CJ’s orders of 25 March 2009 save that it shall be filed by 4.00pm on 17 July 2009.

10. That any monies outstanding to N Company shall be paid by the husband’s solicitor from the monies held in trust on behalf of the parties, the apportionment of which is subsequently to be determined at trial.

11. That paragraph 2 of the orders of Cronin J of 20 March 2008 shall be varied to permit the parties to roll over the fixed term deposit accounts referred to in sub-paragraph 1(c) of those orders for a period up to four months.

12. That the wife shall bring to the attention of her surgeon Mr R that she is unable to undertake knee reconstruction surgery until after this trial, due to finish on 4 December 2009.

13. That the husband’s solicitors shall provide to the wife within 7 days copies of any Minutes of Director and/or Shareholder meetings in relation to T Pty Ltd.

14. That all existing applications shall be adjourned for final hearing before me for 5 days commencing 30 November 2009, and Registrar Riddiford shall conduct a telephone mention with the parties in the week commencing 26 October 2009 or as close as practicable to that date, and the parties shall be advised of that date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1996 of 2008

MR DANIELS

Applicant

And

MS FINDLAY

Respondent

REASONS FOR JUDGMENT

1. The parties separated after a 38-year marriage.  The husband filed an Application for property orders about 15 months ago, on 5 March 2008.  As I said earlier this morning, the imperative now is to get the case ready for hearing.  In the course of doing that, I need to ensure that the parties have had the opportunity to do what is reasonably necessary and proportionate to prepare the case,  and I need to ensure that there no delays or undue obstructions.

2. I note that the wife had an Application in a Case before the court, filed by her on 22 May 2009.  I have given her leave to withdraw that application. 

3. The case has been being readied for trial for some time.  Bryant CJ made two lots of orders for that purpose.  The first lot was on 6 January 2009, and the second lot was on 25 March 2009.

4. In the January orders her Honour made an order that the husband and the wife file affidavit material by particular dates in March.  In the March orders, those affidavits not being filed, her Honour ordered a valuation of the parties' property at M, a single expert report to be prepared by N Company in relation to the valuation of various interests, the wife's affidavit to be filed by 30 April, the husband's affidavit to be filed by 19 May, the parties to file updated financial statements and a joint a balance sheet, and that the final hearing was to go ahead before me after mid-June 2009.  In addition, each party received $20,000 from some moneys held in trust.

5. Since then, a very lengthy affidavit was filed by the wife on 22 May.  A lengthy affidavit was filed by the husband on 5 June.  He also filed an updated financial statement.  The M property valuation has been done, and the N report, dated 5 June, has been received by the court. 

6. I have had the parties here today to establish what, if anything, needs to be done to get the matter ready for trial and to set the trial date.

7. As to the affidavits, the husband says that his affidavits for trial are complete.  The wife says that she does not believe hers are complete.  However, she has filed a three-volume affidavit.  In it, as ordered by Bryant CJ, she has dealt with issues of contributions and section 75(2) factors.

8. There is an issue about the wife’s medical conditions and the impact on her future needs.  There is a dispute about it.  Accordingly, I am satisfied that she needs to file medical evidence.  I will deal with the nature of the orders in that regard shortly. 

9. The wife has raised certain issues arising from the valuation of assets in determining whether or not she can complete her affidavit material.  First, she raised an issue in relation to $42,000 that she said the single valuer, N Company, dealt with incorrectly.  I explained to her, and she made it clear that she now understands, that she can cross‑examine N in due course about that.  She need not file any more material about it.  Her view on the issue is known, and the appropriate time for the issue to be dealt with further is at trial in the course of cross‑examination and the evidence generally.

10. She raised an issue about the property at T being sold by the husband for less than it should have been.  Similarly, the issue is one that is known, and she can cross‑examine about it.  So that is not an impediment to her affidavit material in its current form being as complete as it needs to be for trial.

11. Next, she wants the opportunity to sell the parties' motor home, located in the United Kingdom.  She is leaving for the UK this coming Monday.  There is no disagreement about her selling while she is there.  I will make the appropriate order about it.  Again I note that that is nothing that in any way needs to be addressed in her affidavit beyond that.

12. She then raised the issue of wanting to establish the value of a UK company, including assessing its tax liabilities, and obtaining advice as to its potential winding-up.  She has chosen a well-regarded UK accounting firm of B Chartered Accountants to assist.  Even though that is a firm that she worked for in the past, the husband apparently agrees that is the appropriate firm.  Mr Combes for the husband was drafting an order to encapsulate the parties' agreement.  He has just informed me that there are a few little issues in relation to finalising that.  I will deal with that in a moment when I look at all the orders.

13. I note that of a pool of assets worth several million dollars, the wife concedes that on any view the valuation of this particular entity will be in relative terms, very modest.  It will not make a significant difference to the outcome of the case.  The husband in his material has made it clear that there are sufficient assets here on any view for there to be an appropriate adjustment if that is required.  So the case certainly cannot be delayed just because of this aspect.

14. Otherwise there is the N report.  The accountant has, as they pretty much put it, done the best they can in the circumstances.  The report is subject to some information that they would have liked but was not to hand.  The wife does not accept the report.  That is obvious.  Although she is unrepresented she is confident that, as a professional accountant, she has the expertise to cross‑examine the expert.  That can certainly occur at trial and I expect it to occur at trial.  It has apparently been quite difficult for N to obtain material needed.  I do not propose delaying the trial for N to obtain further material.  They will stand or fall on their report and they can be asked about missing material, as can the parties.

15. I note that the wife is yet to file her updated financial statement.  She must do so.  I have explained to her that if there are figures that for her are uncertain she can indicate them as an estimate.  I will make orders about her filing that document.  I note too that the joint balance sheet has not been prepared and I will make arrangements for a new timeframe for that.

16. Usually I would order trial documents telling me what each party says.  However, in this case I can glean that sufficiently from the material.  Unless there is any objection, I would leave that out.  I am nervous about the volume of material.  In this case I fear that it would only add to the expense and that volume.  Both parties have been quite precise about what they are seeking, so that is quite straightforward.  I note the parties agree that the documents are not required.

17. Let me make it absolutely clear on transcript that if I am about to take five days of court time out of the equation to list other cases, I expect the case to go ahead.  I am also extremely mindful that by then it is heading towards two years since the application was started.  It is essential that the case is heard and completed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  19 June 2009