Darwin and Guarra

[2010] FamCA 1073

FAMILY COURT OF AUSTRALIA

DARWIN & GUARRA [2010] FamCA 1073

FAMILY LAW – PROCEDURE – Order made for appointment of joint expert – Delay in appointment of joint expert – Joint expert’s report deemed necessary to assist Court to determine jurisdictional issue – Adjournment sought of substantive application to a joint expert report received –Adjourned opposed – Adjournment granted

APPLICANT: Mr Darwin

RESPONDENT: Ms Guarra

FILE NUMBER: SYC 4787 of 2009

DATE DELIVERED: 17 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Barry J

HEARING DATE: 17 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney of Counsel appearing for the Applicant Husband

SOLICITORS FOR THE APPLICANT: Somerville Legal

COUNSEL FOR THE RESPONDENT: Ms Nash of Counsel appearing for the Respondent Wife

SOLICITORS FOR THE RESPONDENT: Pelosi & Associates

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned to a date to be fixed.

2. The Wife’s legal representatives to advise this Honourable Court’s List Clerk and the Husband’s legal representatives when the report has been received from Professor Acone, at which time the matter can be listed for determination of the forum issue in this jurisdiction.

3. Both parties’ costs reserved to the Judicial Officer determining the issue of forum.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4787 of 2009

MR DARWIN

Applicant

And

MS GUERRA

Respondent

REASONS FOR JUDGMENT

1. The parties in these proceedings are litigating on two fronts.  The wife, who is the respondent in this court, is the applicant in proceedings for spouse maintenance, child maintenance and child related orders in the civil tribunal in Rome.  In the Italian proceedings the husband is seeking an order to stay such litigation.  For her part, the wife is seeking a stay or dismissal of the proceedings in this court.  The orders she seeks are to be found in the response document she has filed in this matter.

2. On a date that I am not quite sure of, the Italian court made an interim order that the husband pay €1500 a month.  I am informed, via the written submissions of counsel for the wife that this translates to approximately $477 a week in Australian dollars.  The husband was also ordered to pay €1300 a month child maintenance.  On my rough calculations that is €300 a week, or at the current exchange rate of about 72 Australian cents to the Euro, is about $A416 a week.

3. So the summary is that the husband is currently paying €2800 a month, which is about €646 a week, or $A900 a week.  That totals $A46,800 a year.  The husband says his liability totals €48,000.  That figure is to be found in an email from the husband to the wife, subject: re divorce, sent on 5 September 2009:

   You milk him for $48,000 per year, plus health insurance, for the rest of his life.

   No explanation is forthcoming for the divergence in the figures supplied.

4. I do not need to refer to the terms of the letter.  All of that is by the by.

5. The proceedings are next before the Italian court on 2 December this year.  On today’s date, the wife seeks an adjournment of the proceedings in this court, pending the receipt of a single expert report from a Professor Acone, who has been briefed by the parties jointly.  He is asked to give his opinion on the legal position in Italy.  The precise terms of the letter of instructions are to be found at annexure G to an affidavit of the wife’s solicitor, filed by leave on today’s date.

6. The expert on page 2 of the letter is asked:

   Should you agree to be appointed, please, prior to undertaking any work, advise:

   (i) the likely quantum of your fees for the preparation of the report.

   (ii) an hourly rate for any queries

   (iii) the cost of giving evidence if required.

   (iv) whether the report will be available by 8 November 2010, if not, when?

7. Apparently, there has been no reply from Professor Acone, not even to the preliminary queries.  The circumstances in which Professor Acone came to be engaged would seem to be as follows:  there were proceedings before Registrar Campbell in this registry.  As I understood it, the husband sought that there be adversarial experts engaged to advise on the legal position under Italian law.  Whether the wife was agreeable to an adversarial expert, but proposed a different expert, or whether she was seeking a joint expert, is not greatly relevant.  Suffice it to say that on 12 August 2010, it seems that Registrar Campbell made an order for the appointment of a single expert.

8. As a result of that determination, the husband filed an application, in form 2, for a review.  I understood that application was filed on 27 August.  The order that he sought was that the parties be granted leave to rely upon an expert on Italian law, as instructed by either party.  The matter came before Watts J in this registry on 21 September.  His Honour dismissed the application for review.  By paragraph 4 he ordered this matter be listed for hearing in relation to the forum issue at 10.00 am on 17 November 2010.  There is a notation to the order.  The notation reads:

   The parties have agreed that Professor Acone will be the single expert.

   Paragraph 9:

   The solicitors for the parties will confer today and extract from the two case outline documents that have been presented to me today, background facts and the questions that each party wishes to put to the single expert, and that they will thereafter decide on whom of them will be responsible for forwarding those instructions to Professor Acone.  Under the rules, I note both parties will be equally responsible for Professor Acone’s fees.

9. Then there were paragraphs 10 and 11 which related to the filing of affidavit material.

10. Annexed to the wife’s solicitor’s affidavit, filed by leave today, is a copy of the correspondence passing between the respective solicitors, between the date of Watts J’s order on 21 September up until the forwarding of the letter of instructions.  I do not, at this point in time, apportion blame for the delay in instructing the single expert, but the reality is that the letter of instruction was not forwarded until 29 October.  As I understand it, it was forwarded electronically.

11. As I have said, there is no word from Professor Acone of when he will be able to inform the parties on the matters raised on page 2, that I have previously referred to, nor when the court could expect to receive his report.  As I have noted, as the report has not been received, counsel for the wife seeks an adjournment of the proceedings until it is received.  The adjournment is opposed.  Counsel for the husband says he would not oppose the adjournment if the wife would give an assurance that the proceedings in the Italian court, listed for the 2 December, would be adjourned.  No such assurance is forthcoming.

12. Litigation in any jurisdiction can take many pathways.  The parties to these proceedings have deemed it essential to a determination of the forum issue before this court, to inform the court of the legal position in Italy.  Whether that was to be done by adversarial experts or a joint single expert is really not to the point.  Ultimately, the court ruled that there should be a joint expert.  To accede to the husband’s position to proceed to hear and determine the forum issue, without the benefit of the expert’s report, is to adopt a stance contrary to the manner in which the parties themselves had previously agreed to conduct the litigation.  Accordingly, I will grant the adjournment.  It will be necessary to grant the adjournment to a date to be fixed.

13. I will make an order that the solicitors for the wife advise the list clerk and the husband’s solicitors, when the report has been received from Professor Acone, at which time the matter can be further listed for determination of the forum issue in this jurisdiction.  I would have thought that a far more fundamental issue to investigate on a preliminary basis in the meantime, certainly from the wife’s perspective, but also from the husband’s perspective, is whether the husband’s company has any value.  Perhaps the parties would be better advised agreeing on a single expert in that regard to venture a preliminary opinion.

14. If the answer is in the negative, the parties’ litigation on property settlement issues in this jurisdiction would seem to involve a modest superannuation policy that may not vest for some time.  I note the husband is 55 years of the age and the wife is 56.  Orders will issue in accordance with these reasons.

RECORDED  :  NOT TRANSCRIBED

1. It may be somewhat premature to make an order for costs.  I can understand the force of the submission made by the wife’s counsel, but at this stage I will reserve costs of both parties to the judicial officer determining the issue of forum.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 17 November 2010.

Associate: 

Date:  17 November 2010