Devopoulos and Devopoulos

[2011] FamCA 709

FAMILY COURT OF AUSTRALIA

DEVOPOULOS & DEVOPOULOS [2011] FamCA 709

FAMILY LAW – CHILDREN – procedural – order made for vacation of the property hearing by consent – application by the husband for vacation of the hearing of the parenting matter dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Devopoulos

RESPONDENT: Mr Devopoulos

INDEPENDENT CHILDREN’S LAWYER: Duncan Holmes

FILE NUMBER: SYC 1400 of 2009

DATE DELIVERED: 17 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Redman Hale Simpson

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Hancock Alldis & Roskov Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring

Orders

1. The issues relating to property be severed from the current consolidated proceedings that are due for final hearing commencing 22 August 2011 and those property proceedings be adjourned for further directions.

2. The husband’s oral application to vacate the hearing in relation to the parenting matter is dismissed.

3. Leave granted to the wife to file and serve her primary affidavits today. 

4. The husband file and serve any material upon which he seeks to rely in the parenting matter by 3pm Friday 19 August. 

5. Ms W of Accounting Firm 1, of … K Street, Sydney Suburb 1, be appointed as an adversarial expert on behalf of the wife to investigate the husband’s tax affairs relating to his late lodgement of tax returns for the years 1997 to 2009 (and matters incidental thereto) and that in relation to such appointment, the husband do all acts and things necessary, including  but not limited to:

   5.1.signing an Authority in favour of Ms W in accordance with the attached document within 48 hours of the document being submitted to the husband’s solicitors.

   5.2.Signing all such other authorities/documents as requested by Ms W and as necessary for her to complete the Report within 48 hours of the same having been requested of the husband’s Solicitors.

   5.3.Providing to Ms W all documents (or copy documents) and information as requested by her and as she considers necessary for her to complete the Report within 72 hours of the same having been requested of the husband’s Solicitors (at his own expense).

6. In default of the husband’s compliance with Orders number 5.1 and 5.2, a Registrar be and is hereby appointed upon being satisfied of the relevant default by Affidavit evidence to sign such documents on behalf of the husband.

7. The wife be at liberty to pay all costs associated with the said Report from the Controlled Moneys Account held by Redmond Hale Simpson on behalf of the parties with the National Australia Bank.

8. The question of which party should bear all costs associated with the preparation of the said Report be determined at trial.

9. Each party’s costs for today be reserved. 

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1400 of 2009

Ms Devopoulos  

Applicant

And

Mr Devopoulos  

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife has made an application for severing of the issues relating to property from the hearing that was set down for three days commencing 22 August 2011.  The basis for that happening is the fact that the husband failed and continues to fail to comply with order 6.2 made 30 March 2011.  He also failed to comply with an order that I orally made on 18 July 2011 which was engrossed under the slip rule on 9 August 2011.  The affidavit material would indicate that the husband still has not actually signed the authority.  It is clear that the wife is entitled to inquire as to how it is that an assessment of about $900,000 in tax has been made against the husband, particularly in circumstances where from at least March onwards there was an order that required him to make full disclosure about these matters.  The husband concedes the property matter cannot proceed.  The wife is entitled to the order she seeks vacating the property hearing.

2. The wife seeks further orders aimed at informing her about the tax debt and these are not opposed by the husband.

3. The husband has made an oral application that I also vacate the hearing dates in relation to parenting matter.  That application is opposed by both by the wife and the Independent Children's Lawyer.  The reasons given by the husband in support of his application are:

   3.1.Bifurcation of the hearing would be more expensive 

   I do not accept that severing the property and parenting hearings will necessarily mean that the parties will incur any significant additional costs.

   3.2.Neither party has filed their primary parenting material

   The wife has indicated that she can file and serve her affidavit in relation to parenting issues today.  The lack of preparation for the parenting matter arises in circumstances that are noted in notations 1 and 2 made 18 July 2011. The matter was adjourned on 18 July in order to enable the lawyer for the husband to further talk to his client about what was in the expert report, a report that he had had for some 13 days. 

   When giving the father further time to consider what was in Dr M’s report, the following order was made on 18 July 2011:

   Within four days the husband notify the wife as to whether or not he accepts the recommendations that are contained in paragraph 31 of [Dr M’s] report in relation to [P] and if he does not and parenting issues still need to be determined, then by 1 August 2011 he is file and serve his evidence about [Dr M’s] report and any other matter that might go to the decision I have got to make about parenting matters and the wife file and serve any evidence she wishes to rely upon in respect of the parenting matter

   The father did not comply with that order and offered no explanation as to why he had not complied with that order.  The husband’s oral application to vacate the parenting matter has only been made today.  It is not appropriate for the father to rely upon his unexplained non compliance as a basis for an adjournment application.

4. As is clear from Dr M’s most recent report, there is ongoing difficulties in this case in relation to the management of P’s problems and in my view it is in P’s best interests that they be reviewed and some determination be made in relation to them as soon as possible. 

5. I find that the hearing of the parenting matter should proceed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 17 August 2011.

Associate:   

Date:  19.8.2011