Denning and Denning (No 2)

[2010] FamCA 638

FAMILY COURT OF AUSTRALIA

DENNING & DENNING (NO. 2) [2010] FamCA 638

FAMILY LAW – PROPERTY – Interim

APPLICANT: MR DENNING

RESPONDENT: MS DENNING

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 20 JULY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 20 JULY 2010

REPRESENTATION

APPLICANT HUSBAND: IN PERSON

COUNSEL FOR THE RESPONDENT: MR MCCONCHIE

SOLICITOR FOR THE RESPONDENT: F BUTERA & CO

Orders

IT IS ORDERED:

1. THAT the defended hearing date (for four days) commencing this day be vacated.

2. THAT as soon as practicable, and subject to the consent of the wife’s solicitor and chartered accountant engaged by her to investigate the financial affairs of the parties, the husband and Mr F confer and discuss the contents of his past reports to the Court and provide an updated financial analysis of the past profits, income and current pool of assets of the husband and wife.

3. THAT such conference take place at the offices of Mr F or otherwise as may be agreed.

4. THAT Mr F prepare a report, to be provided to the Court of the financial outcome of such discussion and otherwise identify any further documents or information required and which should then have been available to the parties or either of them in the commercial ventures and businesses in which they were previously engaged.

5. THAT all extant applications be otherwise adjourned for mention before Young J at 11.00 a.m. on Tuesday 21 September 2010.

IT IS NOTED

A.THAT the wife instructed her Counsel to advise the Court today that she had caused to make a complaint to the police about the husband’s alleged financial inappropriate dealings with monies of the family or profits arising from past developments of property.  That disclosure was the first notice the husband had received of such a complaint which he has said to the Court he would defend.

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

REASONS FOR JUDGMENT

1. I have highlighted in my comments to the parties this day that there is a limited and diminishing pool of assets, houses about to be sold by the bank and the net moneys of that sale are likely to be less than $100,000.  Thus the pool, subject to all other investigation and assets to be found, if any, may be less than $350,000, leaving aside superannuation, personal assets, chattels and other items not yet disclosed. 

2. The wife has engaged an accountant, Mr F.  He has prepared two reports and affidavits with the court.

3. He has identified substantial deficiencies in the husband’s disclosure and questions arising about moneys that may be unaccounted for.  I do not know if he has carefully cross-referenced the disclosed documents of the husband to his statement of financial position and questions raised by him.  I well understand that the husband currently is incurring no legal fees, as he appears for himself with his accounting and commercial background.  The wife has no such skills and employs an accountant, solicitor and legal counsel at a considerable cost to her.

4. I have raised the scenario of the husband meeting directly with the wife’s accountant, Mr F, both to provide information and answer questions and try and resolve past financial dealings, provide an explanation and more closely work towards developing a current asset pool.  The wife, of course, does not have to accept that scenario, but must be mindful of costs to her.  The reality of this case is so much of the financial and factual knowledge lies in the husband, who was the primary developer and involved with business for and on behalf of the family.

5. What I envisage is the wife engaging at her expense the services of Mr F for several hours.  The husband can attend at his office with all proper documents and willingly and openly discuss past property developments, transactions and the financial history of the family.  The husband has indicated to the court he will truthfully and openly answer questions of Mr F related to commercial and financial transactions and property development and the receipt or disposal of moneys and all associated matters.

6. The husband’s concern is that Mr F’s current report is not reflective of the disclosed documents, raises questions that otherwise could or should have been answered from documents discovered and is substantially incomplete and, therefore, financially misleading to the wife.  That is no criticism of Mr F because he can only act on documents presented to him.  What I am trying to do is to present a circuit breaker in this case so that there can be more meaningful and wholesome financial discussions forthwith at limited cost and expense to the wife to identify real issues and outcomes.

7. I well understand that Mr F must consent, and that is a matter that can be taken up after today, but I intend to make an order, subject to that consent, that the husband confer with Mr F in the immediate future in a cooperative, friendly, and professionally appropriate manner.  Hopefully that will lead to a concise updated financial report being filed on behalf of the wife, identifying then relevant issues and financial concerns, both as to the document and discovery trail and as to the pool of moneys, including any ascertained profits that should now be remaining from the various property developments of past years.

8. This matter otherwise is not ready to proceed and I will vacate the current hearing date. I carefully make no comment upon the alleged police investigation.  That matter would, no doubt, be assisted by an updated report from Mr F identifying issues and it may or otherwise may not resolve outstanding concerns.  Ultimately, in a matter like this where knowledge is largely on one side of the bar table (that is, with the husband) then the wife’s professional advisers must diligently, but commercially appropriately respond to matters in dispute, ascertain what they can and make prudent financial decisions in a cost-effective manner.

9. That is not easy, but they would be well aware of their professional obligations to the wife in that regard.  I have simply provided these extempore brief reasons by way of a summary of matters touched upon in court over the past two hours.  The orders that I make today will be limited and specific and hopefully would lead to some further and better discussions.  Otherwise, I will only list this matter for a case-management update before me at a later date.  I will have these reasons transcribed placed upon the court file with copies to be sent to both parties.

NOTED

1. It is noted the wife instructed her counsel to advise the court today that she had caused to make a complaint to the police about the husband’s alleged financial inappropriate dealings with moneys of the family, or profits arising from past developments of property.  That disclosure was the first notice the husband had received of such a complaint, which he has said to the court, he would defend.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: