Foster and Foster (No 2)

[2012] FamCA 295

FAMILY COURT OF AUSTRALIA

FOSTER & FOSTER (NO 2) [2012] FamCA 295

FAMILY LAW – PRACTICE AND PROCEDURE -Case management hearing – Failure to file affidavit and other application as required – Consideration of what is a reasonable excuse – Extended filing dates and further hearing granted – Costs awarded

Family Law Act 1975 (Cth) – s 117

APPLICANT: Mr Foster

RESPONDENT: Ms Foster

FILE NUMBER: MLC 7826 of 2009

DATE DELIVERED: 12 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 12 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nikou SC

SOLICITOR FOR THE APPLICANT: Logie-Smith Lanyon

COUNSEL FOR THE RESPONDENT: Mr Dickson

SOLICITOR FOR THE RESPONDENT: Julie Taylor

Orders

IT IS ORDERED:

1. THAT the husband and his solicitors comply with paragraph 12 of the Orders dated 21 March 2012 and file such amended application on or before 29 June 2012 and further that such document be at large as to financial and property orders sought and not restricted to the sale of any shareholding in the entities identified in that Order.

2. THAT within a further twenty-one (21) days the wife make, file and serve an amended response to that amended application filed on behalf of the husband.

3. THAT within fourteen (14) days the husband, his servants or agents, do all acts and things, give all necessary instructions and make such required searches as to locate and then deliver up to the wife’s solicitors the Memorandum and Articles of Association or any related corporate documents for each of the entities as identified in paragraph 12 of the previous Court Orders.

4. THAT all extant applications, and the husband’s amended application to be filed be all adjourned and listed for further case management and direction, and hearing on issues as are required, before Young J at 10.00 a.m. on 9 August 2012.

5. THAT the husband instruct his solicitors to make, file and serve an affidavit from a school officer or other appropriate person in authority having actual knowledge of the current behaviour and circumstances of the child B as identified in previous Orders and particularly as recorded in Notation B to the earlier Orders of the Court dated 21 March 2012, and any such affidavit(s) are to be filed and served no less than fourteen (14) days prior to the adjourned hearing date.

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

7. THAT the husband pay or cause to be paid to the wife’s solicitors the costs of and incidental to the hearing this day fixed in the sum of $3,500 and the payment of such sum be stayed for ninety (90) days.

8. THAT the extempore reasons for judgment as to costs be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel for the husband and Counsel wife.

IT IS NOTED

A.THAT the Court has been advised that the husband has arranged and the wife is aware of proposed counselling by a qualified psychologist located in Town C to be undertaken on parenting issues generally and specifically to raise the issue of M and the current injunction restraining him being brought into the company of a non-relative child, B and these matters are to be discussed in counselling and any other third party, non-family member, who may assist in that regard is to be invited into counselling if the parties are in agreement on that course of action.

B.THAT Ms Nicou has advised the Court that her client would propose that the parties enter into mediation with an experienced legal practitioner to discuss and, if practicable, resolve all financial issues and division of property between them and that is a matter which Mr Dickson has conveyed to the Court he will take proper instructions upon and convey a recommendation to his client.

C.THAT as to any hearing on child related issues then, subject to the filing of all documentation and the matter being ready to proceed, any such hearing will be primarily limited to the papers unless leave for cross examination is given and will be conducted as a half day hearing and no more.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Foster & Foster (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7826 of 2009

Mr Foster

Applicant

And

Ms Foster

Respondent

REASONS FOR JUDGMENT

1. The matter of Foster was listed before me this day pursuant to my earlier orders pronounced 21 March 2012, and again the husband is represented by Ms Nikou Senior Counsel and Mr Dickson represented the respondent mother.  The issues before the Court remain a limited parenting issue and otherwise a division of property pursuant to section 79 of the Family Law Act 1975 (Cth).

2. I have had the opportunity to consider the orders which I pronounced by consent on 21 March of this year and the matters arising therefrom, upon which counsel have addressed.

3. The husband is yet to comply with paragraph 12, that is, to file an amended application seeking orders in respect of the sale of his shareholding, or that held by or on behalf of the parties, in the company therein identified. 

4. Ms Nikou has emphasised to the Court that there have been delays beyond the control of the husband, brought about by the demise of the legal practice which he had engaged to represent himself and then the transfer of the responsible solicitor to another firm with her file.  And in that regard I have sighted a letter from Ms S, dated 24 April 2012 tendered by Mr Dickson and otherwise the notice of address for service of the new solicitors at which she now works, filed 8 May 2012.  I have returned the letter handed to the Court by Mr Dickson to him and will not mark same as an exhibit for these proceedings.

5. More particularly, Ms Nikou has emphasised to the Court that the husband has made all inquiries that reasonably were open to him within the family to sell his shareholding to existing family shareholder members or perhaps indeed to the independent shareholder, Mr G.  It is said that all of those inquiries were unsuccessful.  I carefully make no finding of fact or no observation upon the extent of that inquiry made by the husband and whether the outcome is or is not reasonable.  In due course they may remain a matter for cross-examination.

6. Likewise, I have been advised that the husband has advertised in the press for the acquisition of or other dealing with his minority shareholding interest in the entities and that was largely unsuccessful and certainly did not bring about any concluded transaction.  Again, I make no other comment and that may be a matter to be further scrutinised in the ongoing financial proceedings.

7. When the matter was last before me I made an order requiring the husband to file an amended application.  That was sought by his Senior Counsel and was necessary because of the change in emphasis of the property case.  Clearly there has been an abundance of time for that to be filed before today, notwithstanding the legal dramas with his engaged solicitors, but over the past three or four weeks that document should have been prepared, filed and served.

8. I will provide an extended period until 29 June 2012 and I will amend paragraph 12 somewhat in that it does not apply only to the sale of any shareholding that he may have in the related businesses, but generally as to orders sought by him in property proceedings before the Court so that the possibility of an adjournment of proceedings on a long-term basis or the realisation of assets or any other matter can be dealt with.

9. I will provide the wife 21 days to file an amended response and I will list the matters before me at 10 am on 9 August.  I merely record in these ex tempore reasons for judgment that somehow, somewhere and sometime these parties or one of them first in time, must determine a course of action, must file documents and must move forward unless there is out of court discussions through an organised mediation or any other settlement process.

10. I am advised that the parties are likely to agree on mediation and Ms Nikou has emphasised that it will be with a strong mediator.  Whatever, I do not buy into the appointment of any mediator and who it would be, but given the experience of counsel before me, I am sure they will agree upon the right person. 

11. As an overview, mediation perhaps is unlikely to be successful unless wholly embraced both by the husband and his extended family who may want to protect their corporate interests, and as Mr Dickson has highlighted, the strength of their balance sheet.  I make no finding.  I have no evidence.  I merely record that a successful mediated outcome will depend upon more than the husband and wife being present and presenting their issues of gloom and despair or financial need in the current environment. 

12. It will take a practical commercial aspect which, in the end may be likely far less expensive than a protracted hearing involving two, three or four represented parties, minority shareholdings and other corporate and commercial issues.  Again, I make no comment other than to encourage the parties to show a very significant degree of commonsense and family involvement to find a negotiated outcome.

13. The other matter that remains alive is the child issue of contact between M, who is 10 and a half years of age and a child friend known as B, and there have been earlier materials filed on this topic.  All parenting matters have resolved save this outstanding issue.  I am advised that the parties have organised counselling with a Town C-based psychologist, though the expense of that exercise is yet to be the subject of proper discussion and I require counsel to resolve that issue today.

14. Those discussions will not just relate to B and/or M and any communication or contact between the two, but to some wider parenting issues involving the daughter H.  Again, I do not open up those issues and there are no applications before the Court and the parties need to resolve these matters themselves with professional assistance.

15. What I had required and what I had clearly noted in my orders of March this year, in notation B, was that the Court would consider the continuation of the injunction restraining contact between M and B upon the filing of further material, which was to include an affidavit from the father and a further affidavit from someone of appropriate authority and knowledge within the school system as to B’s more recent behaviour.

16. At the commencement of the proceedings Ms Nikou sought to file an affidavit of B’s father, Mr D.  It was evidently prepared and served late on Friday afternoon, that is, the previous working day to this hearing.  Mr Dickson objected to the filing of the affidavit.  I have not received the affidavit and it is and has become unnecessary to rule on its filing this day.  It can now be filed forthwith for any further hearing, but again I stress - and the father is in Court to hear this as are his other friends, and of course his legal practitioners – I require an independent affidavit, be it from the school principal or the vice-principal or other person who knows of B and/or any issues or behavioural matters of and concerning B insofar as they impact not just upon M but upon any other child. 

17. I make no finding that there is any such issue and it may be that B is now a totally respectable, well-behaved child who is focused on his school and behaves appropriately with others.  I make no finding and I draw no conclusion, but I must have evidence.  I said that last time and I say it again I intend the message to be blunt.  The more quality evidence the better.  It must be appropriately served upon the wife’s solicitors well in time and not at the last minute.  Again, I intend to be blunt with that message.

18. I will now pronounce orders but I will have these ex tempore reasons for judgment transcribed, placed upon the court file and made available to both parties. 

19. The orders are the same as the 21 March orders, save that the solicitors for the husband have changed; no longer Anderson Rice, but are now Logie-Smith Lanyon, as per the notice of address for service filed.  The appearances remain the same.

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

20. There will be certification for counsel, including Senior Counsel for the appearance this day in the appropriate form.

21. It is noted the Court has been advised that the husband has arranged and the wife is aware of proposed counselling by a qualified psychologist located in Town C to be undertaken on parenting issues generally, and specifically to raise the issue of M and the current injunction restraining him being brought into the company of a non-relative child, B.  These matters are to be discussed in counselling, and any other third party, non-family member, who may assist in that regard is to be invited into counselling if the parties are in agreement on that course of action.

22. I am not making that as an order; it is a suggestion, but there has got to be a bit more common sense or investigation on these issues of such young children and/or their need to see each other, or the barriers thereto.  And, again, I am not saying any other matter, and I have no view of the outcome.

23. That’s notation A, notation B:  the parties have advised the court that they intend to appoint a senior - - -

    RECORDED  :  NOT TRANSCRIBED

24. I will do it in a different way.  Ms Nikou has advised the Court that her client would propose that the parties enter into mediation with an experienced legal practitioner to discuss and, if practicable, resolve all financial issues in division of property between them.  That is a matter which Mr Dickson has conveyed to the Court he will take proper instructions upon, and convey a recommendation to his client.

    RECORDED  :  NOT TRANSCRIBED

25. C:  as to any hearing on child-related issues, then, subject to the filing of all documentation and the matter being ready to proceed, any such hearing will be primarily limited to the papers - - -

    RECORDED  :  NOT TRANSCRIBED

26. Unless leave for cross-examination is given, and will be conducted as a half-day hearing and no more.

    RECORDED  :  NOT TRANSCRIBED

27. Arising out of the orders that I have made, I have now an application from Mr Dickson on behalf of his client for a costs order.  His brief is marked at $3,500 and, as to quantum, there is no challenge thereto by Senior Counsel for the husband.  The principles of the Family Law Act are that each party generally pays his or her own costs.  There is, however, an exception, and that is in circumstances provided for in subparagraph s 117(2) thereof, whereby the Court determines if it is just for a costs order to be made.

28. The circumstances and factors upon which the Court must exercise discretion are identified in subparagraph s 117 (2)A of that section.  Those factors include the financial circumstances of the parties, the conduct of the proceedings, and whether any party has been wholly unsuccessful in the outcome and I have very carefully assessed all of the relevant factors.  Otherwise, there are general discretions to the Court and I leave to one side the issues surrounding the provisions of legal aid, which are not applicable in this case.

29. I am generally aware of the financial circumstances of the parties.  In terms of any property settlement, it is submitted there are minimal assets, save for a shareholding that the husband has in the various entities earlier described in my previous judgment.  The husband has a minority shareholding.  It is intertwined with a majority family shareholding and another independent shareholding.  I am generally aware of the background circumstances of these issues.

30. The husband was required to file an amended application.  It is substantially out of time.  There have been some contributing factors, such as the dissolving of the practice of his former solicitors, and his current solicitor taking the file to her new office.  Those matters are understandable, and occupy a window of some three weeks or thereabouts.  Having said that, the previous orders of the Court were made on 21 March 2012, and now, 12 June, the application is not filed, and on a separate and child-related issue, affidavits sought to determine that issue are also not filed.  It is said the husband works extremely hard and had no time to give instructions to his solicitor.

    RECORDED  :  NOT TRANSCRIBED

31. It is said that the deponent required for the child’s affidavit was away, and it was only his recent return which has enabled that affidavit to be available today, though it has not been filed and was the subject of objection taken.

32. All matters considered, the conduct of the proceedings today have been frustrated.  Even more so now that Mr Dickson has highlighted that his solicitor wrote a letter some weeks ago highlighting the issues today, the lack of compliance with past court orders, and giving the husband’s solicitor every opportunity to be reminded of and to seek an adjournment.  That did not occur.  The simple reality of today is that fees have been incurred, and the matter has not been progressed.  I have now given it another hearing date before me on 9 August to facilitate what should have been done for today.

33. The conduct of the proceedings are such that there is no reason – and, indeed, it would be wholly unjust for the wife to be financially penalised.  In the exercise of my discretion, it is just, indeed, I find, overwhelmingly just, for there to be a costs order, and I will order the costs order which is unchallenged in quantum.  I will provide a period of 90 days for payment.  That order will be included within my previous orders. 

I certify that the preceding Thirty three
(33) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 12 June 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………