Denning and Denning

[2011] FamCA 15

FAMILY COURT OF AUSTRALIA

DENNING & DENNING [2011] FamCA 15

FAMILY LAW – PRACTICE AND PROCEDURE – Case management issues

APPLICANT: MR DENNING

RESPONDENT: MS DENNING

INTERVENOR: ASK FUNDING LIMITED

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 20 JANUARY 2011

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 20 JANUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr McConchie

SOLICITOR FOR THE RESPONDENT: F. Butera & Co

COUNSEL FOR THE INTERVENOR: Ms Badenoch

SOLICITOR FOR THE INTERVENOR: Mason Sier Turnbull

Orders

IT IS ORDERED:

1. THAT on or before 12.00 noon Tuesday 25 January 2011 the husband and the solicitors for the wife make, file and serve upon all parties:

   (a)         any further affidavit upon which they intend to rely;

   (b)         an updated balance sheet inclusive of all assets and liabilities;

   (c)an updated letter in compliance with Family Law Rule 19.04 as to all costs and expenses of and incidental to these proceedings and estimated costs of the hearing;

   (d)a brief summary of the significant s 79(4) contribution issues and s 75(2) factors upon which each of them will rely for the orders sought by them.

2. THAT the solicitors for the intervenor are to have available to the Court a written statement of the alleged debt and all interest, costs or penalties owing thereon as at 31 January 2011.

3. THAT the husband and the solicitors for the wife forthwith serve all court documents and the balance sheet upon which they intend to rely upon the solicitors for the intervenor.

4. THAT as to the car and household belongings the husband and the solicitors for the wife immediately confer and agree upon an actual current market value thereof or, in the absence of any agreement, file appropriate affidavits of value.

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

IT IS NOTED:

A.THAT the husband has advised the Court that he does not require to cross examine the wife’s brother.

B.THAT all parties have assured the Court that the matter will be heard and determined within the allocated four days and each understand that there is no opportunity for this hearing to proceed beyond that four days and if not concluded there is no other day in the first half of this calendar year available for the continuation of this matter.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

MR DENNING

Applicant

And

MS DENNING

Respondent

And

ASK FUNDING LIMITED (ACN 094 503 385)

REASONS FOR JUDGMENT

1. The matter of Denning was listed for case management this day.  The husband is applicant and appears in person.  Mr McConchie appears for the wife, who was unwell and is not in Court for this mention.  Ms Badenoch of Counsel appears for the intervener, ASK Funding Limited, who previously have been granted leave to intervene by an order which I made in September of last year.

2. Property and financial matters only are before the Court.  The husband has filed an amended initiating application and the final orders sought therein, rather than any interim or procedural orders will be before the Court.  The wife has filed on 12 January of this year a response to that application.  The husband’s evidence is comprised within his affidavit, 26 November 2010, and the voluminous exhibits thereto, and his financial statement of 26 November of last year.  If it is that he is to call any other witness, including his mother, to give evidence, then affidavits must be filed and served on all parties before 12.00 noon, Tuesday 25 January 2011.

3. The wife’s evidence is comprised in her affidavit of 14 December 2010 and exhibits thereto, her financial statement filed that same day, and two further affidavits, they being: 

   §an affidavit of Mr F, investigating accountant, filed 19 November 2010;

   §an affidavit of her brother filed 30 June 2010.

4. The brother’s affidavit may be out of date, and in the discussions in Court today, it may have to be updated as to proving alleged debts and otherwise generally, and if so, it must be filed and served on all parties within that same timeframe – that is, 12.00 noon, Tuesday 25 January of this year.

5. The intervener has filed an affidavit by its Chief Executive Officer on 25 August 2010.  That was before the Court to support the intervention order then sought.  The intervener must have before the Court in appropriate form, by affidavit or otherwise with the consent of all parties, the actual sum of moneys allegedly owed to it by the husband as at the commencement of the trial later this month.  On what Ms Badenoch has indicated to the Court today there will be no other evidence called by the intervener, but they reserve their rights to cross‑examine witnesses as to debts and liabilities.

6. Both parties, that is, the husband and wife, must file an updated practice direction document as to their legal expenses as at the commencement of the hearing, and allowing for all moneys to be expended in the hearing – that is, pursuant to Family Law Rule 19.04.  As an overview the balance sheets handed to the Court today both need be filed and leave is given in that regard.  There are quite clear issues as to the quantum of the asset pool and as to the liabilities.

7. I have emphasised to all parties, and again I carefully take this opportunity to highlight the necessity to have evidence before the Court.  There are two term deposits holding the balance of sale moneys from the home, and the C holiday home.  The updated quantum, including interest, must be before the Court as at 31 January.  Otherwise other assets must be proved.  More particularly the issue of liabilities will need attention by the parties.  Somewhat ironically, each claim substantial liabilities, but none are the same.  Indeed, on the document before me, the liabilities of $240,000 claimed by the wife, are wholly different to the husband, who claims other liabilities of $315,000.

8. The court will only accept liabilities that are proved on the evidence, are genuine, and are payable.  There are no superannuation entitlements in this case.  I will provide orders for further documents to be filed by 12 noon next Tuesday, and all documents must be served on all parties, including the intervenor.  I have emphasised to the parties that the matter must be ready to proceed.  It has no more than four days and all addresses and submissions on evidence must be finished within that timeframe.

9. If necessary there may be restrictions on cross-examination time.  The task for the husband and Counsel for the other parties is to identify matters of relevance and cross-examine on matters of relevance, always directed towards identifying the assets and the liabilities in this case.  Otherwise, evidence of the section 79(4) and section 75(2) contributions and factors can be developed to the extent that the affidavit material may be insufficient.

10. Both the husband and wife must understand that their evidence-in-chief is in affidavit form and I will be extremely reluctant to allow any other evidence to be given by them other than in reply to matters cross-examined upon.  That means, carefully, that all of the contributions and the factors under section 75(2), including financial need, future financial dependence, limited incomes, or whatever, must be before the court in affidavit form.  I have taken the opportunity to carefully highlight to both parties that any documents to be tendered in cross-examination must be collated, photocopied, and available to all parties in the court contemporaneous with that cross-examination.

ORDERS DELIVERED

I certify that the preceding ten
(10) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 20 January 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………