Dodds & Dodds and Anor

[2007] FamCA 1320

FAMILY COURT OF AUSTRALIA

DODDS & DODDS AND ANOR [2007] FamCA 1320

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment of interim financial matters to a date on which other interim financial issues are already listed – reservations about time available to hear all interim matters – practitioners will be required to tailor their client’s case on all issues accordingly – direction to practitioners to produce to clients information in relation to costs

Family Law Act 1975 (Cth)

APPLICANT: Mrs Dodds

RESPONDENT: Mr Dodds

INTERVENOR: K Pty Ltd

FILE NUMBER: MLF 3090 of 2006

DATE DELIVERED: 1 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.J. Combes

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr D.J. Brown SC

SOLICITOR FOR THE RESPONDENT: Harwood Andrews Lawyers

COUNSEL FOR THE INTERVENOR: Mr G.R. Dickson

SOLICITOR FOR THE INTERVENOR: Bazzani Scully Brand Lawyers

Order One

1. That all extant applications be adjourned to 16 November 2007 at 10am before the Honourable Justice Dessau to the extent that they have not already been adjourned to that date. 

2. That paragraph 3(a) of the Order made on 18 September 2007 and subsequently varied on 18 October 2007 be further varied to require payment by the wife’s solicitors, Marshall & Dent of the following funds as soon as practicable:-

   (a)The sum of $426,418 to the intervener, K Pty Ltd;

   (b)The sum of $120,000 to the solicitors for the husband, such funds to be disbursed only in payment of taxation or penalties due to the Australian Taxation Office.

3. That the question of costs of all parties of this day be reserved. 

4. That the Director Penalty Notice addressed to the husband from the Australian Taxation Office and issued 23 October 2007 be marked exhibit “H1” and remain on the Court file. 

5. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties.

Order two (costs)

1. That by not later than 4.00 p.m. on Thursday  15 November 2007, the practitioner for the husband and the practitioner for the wife each provide notice in writing to his/her client of:-

   (a)the actual costs incurred by the client up to and including the interim hearing in the long judicial duty list on Friday 16 November 2007;

   (b)any expense paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

   (c)the source of the funds for costs or expenses which have been  paid or in respect of which there is an arrangement to pay, so that:-

   (i)if costs have been paid by cheque, then details must be provided of the account on which the cheque was drawn;

   (ii)if costs paid have been paid by credit card, then the details must identify the finance provider and number and name of the credit facility; and

   (iii)if costs were paid in cash, then the details must identify the payer.

2. That by not later than 5.00 p.m. on Thursday 15 November 2007, the practitioner for the husband and the practitioner for the wife each provide to the Associate to the Honourable Justice Dessau, by facsimile a copy of the notification given to his/her client pursuant to paragraph 1 of this Order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3090 of 2006

MRS DODDS  

Applicant

And

MR DODDS  

Respondent

And

K PTY LTD
Intervenor

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list.  The applications returnable today were adjourned here pursuant to an Order made on 18 October 2007.  They are an application by the husband filed on 4 October 2007 and an application of the intervenor filed on 4 October 2007.  I have presided over a partial adjustment by the parties of those applications as a stop gap measure before the interim issues can be determined and, otherwise, I have adjourned the applications to Dessau J's long duty list (as one of two matters) on

   
   

   16 November 2007.  The wife sought the adjournment.  The husband and the intervenor opposed the adjournment.  These are my reasons for acceding to the wife’s application. 

2. Today Mr Dickson of counsel appears for the husband, Mr Brown SC appears for the wife and Mr Combes of counsel appears for the intervenor, K Pty Ltd. 

3. The husband and wife separated in September 2005 after a marriage of some 27 years.  There are personal assets and there are business assets.  The business which will ultimately be assets divisible between the parties in these proceedings is operated under S Constructions.  The parties have been in litigation in this Court since November 2006.  A point of contention at the moment seems to be the application of assets held personally to retirement of debts that were incurred through operating the corporations. 

4. It is common ground that the interim issues which currently require determination are as follows:

   a)How the proceeds of sale of a property in P ought be to be applied. 

   This was a property which was constructed under a joint venture agreement between the wife and the intervenor.  In this respect the intervenor claims an adjustment in its favour of $721,000+.  The wife concedes an adjustment of $426,418 is due so that much can be paid over today.  Also the husband contends that related entities (the assets and liabilities of which will be divisible between the parties in the Part VII proceedings) owe tax and the Australian Tax Office (“ATO”) has commenced recovery action.  He has recently received a Director’s Penalty Notice sheeting home to him personally a part of that debt and there are more penalty notices on the way.  The husband contends that the taxation must be paid eventually and the wife is putting her head in the sand by alleging that the monies held out of the joint venture ought not be applied to unrelated debt. 

   b)The husband's application to borrow funds to complete a building project at W.

   c)The husband's application to sell other assets (owned personally and through companies) to retire debt (owed personally and through companies).

   d)The wife's application to be paid spousal maintenance as a lump sum in the absence of a periodic order. 

   e)The wife's application for litigation funding relief. 

   f)

   The application of the intervenor to recover the sum of $721,000 odd from the parties, or such of the balance as will remain, having regard to the payment which the intervenor is to receive pursuant to orders that

   
   

   I make today in the sum of $426,418. 

   Additionally, there are other ancillary issues, such as costs and responsibility for interest which is running on liabilities between adjourned dates and for so long as the liabilities remain unpaid. 

5. I am satisfied that there is sufficient complexity in this case for me to fall into error if I adopt a piecemeal approach rather than a more comprehensive approach.  I cannot deal comprehensively with the interim matters because the majority of the relevant applications are already listed before Dessau J on

   
   16 November 2007

   . 

6. I am satisfied that, when all interim applications are listed for determination before the one Judge, there is a better chance of doing justice to the parties than I feel I could achieve by a piecemeal approach today.  For instance, if I acceded today to the applications of the husband and the intervenor to apply monies in payment of debt to the intervenor and the ATO, the relief sought by the wife in applications returnable on 16 November 2007, for lump sum spousal maintenance and a litigation funding order, would be rendered nugatory because the funds that the wife seeks to access for those purposes would have been extinguished by orders made in favour of the intervenor and the ATO.  Of course, in the result that may occur.  I just think that today does not provide the width of perspective necessary. 

7. I should mention here that, absent a resolution or partial resolution(s) between the parties, if all matters remain contested I have reservations about the feasibility of the Court disposing of all of the matters requiring determination on 16 November 2007.  Her Honour is likely to have half a day at most for this case so it will be up to the parties to tailor the presentation of their case accordingly.  That means stating succinctly why the orders they seek should be made notwithstanding contentions to the contrary and why orders which they oppose should not be made. 

8. I have indicated to the parties that on 16 November 2007 they may raise with Dessau J whether Her Honour would be prepared to recommend to Cronin J the appointment of a Judge manager.  It appears that this matter, which was initiated by the wife’s application for final orders filed on 1 November 2006, has come to Court on numerous occasions including:-

   ∙29 November 2006 before Mushin J when Ms Nikou SC appeared for the husband and Mr Curtain of counsel appeared for the wife;

   ∙7 December 2006 before Brown J when Ms Nikou SC appeared for the husband and Mr Strum of counsel appeared for the wife;

   ∙15 March 2007 on the return of subpoenae;

   ∙20 March 2007 before Dessau J when the husband appeared in person and Mr Brown SC appeared for the wife;

   ∙8 May 2007 on the return of subpoenae;

   ∙27 July 2007 before Dessau J when Mr Dickson of counsel appeared for the husband and Mr McBride, solicitor, appeared for the wife;

   ∙13 September 2007 on the return of subpoenae;

   ∙17 & 18 September 2007 before Mushin J when Ms Stoikovska of counsel appeared for the husband and Mr Strum of counsel appeared for the wife;

   ∙18 October 2007

   before Brown J when Mr Dickson of counsel appeared for the husband and Mr Brown SC appeared for the wife and

   
   

   Mr Combes of counsel appeared for the intervenor, K Pty Ltd.

   It may be that a Judge manager could curtail the frequency of court appearances or the scope of what is adjourned into the judicial duty list from time to time. 

DISCUSSION WHEN MATTER SUBSEQUENTLY MENTIONED WITH ALL COUNSEL PRESENT

1. Counsel for the husband and the wife have no objection to their instructing solicitors being required to put into print in anticipation of the hearing on

   
   

   16 November 2007 the information required under r 19 in relation to client costs.  I will make an order in those terms.  The information furnished to each client should be in a form which is available to be handed up to Dessau J if Her Honour requests it or exchanged with the other side if that is ordered to take place.  

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett 

Associate: 

Date:  12 November 2007