Graham & Callen

[2013] FamCA 35

FAMILY COURT OF AUSTRALIA

GRAHAM & CALLEN AND ANOR [2013] FamCA 35

FAMILY LAW - PRACTICE AND PROCEDURE – Subpoenas – leave to issue

Family Law Act 1975 (Cth)

APPLICANT: Mr Graham

RESPONDENT: Ms Callen

INTERVENOR: B Pty Ltd

FILE NUMBER: MLC 7912 of 2010

DATE DELIVERED: 21 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 21 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Hammet

SOLICITOR FOR THE RESPONDENT: Sam Holt

COUNSEL FOR THE INTERVENOR: Mr Ogge

SOLICITOR FOR THE INTERVENOR: Neil Ogge Lawyers

IT IS ORDERED THAT

1. The husband have leave to file the affidavits of Mr J, Mr W and Mr R.

2. The second named respondent have leave to file the affidavit of Mr A Callen sworn 17 January 2013. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Callen & Anor 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 7912 of 2010

Mr Graham

Applicant

And

Ms Callen and B Pty Ltd

Respondent

REASONS FOR JUDGMENT

1. On 2 July 2012 I made orders for the preparation of this matter for final hearing.  They included a timetable for the filing of trial affidavits.  The husband was required to file his affidavits of evidence-in-chief by 4 pm on 22 October 2012.  The wife and the second named respondents were required to file their affidavits of evidence-in-chief by 19 November 2012 and the husband had until 10 December 2012 to file any affidavit in reply.

2. Although the father filed his affidavit of evidence-in-chief on 26 October 2012 only a matter of days late neither the wife or the second named respondent complied with my order.  The matter was listed for Mention before me on 11 December 2012.  On that date I extended the time for the wife to file her affidavits of evidence-in-chief to 4 pm on 3 January 2012.  The time for the second named respondent to file its affidavits of evidence-in-chief was extended to 4 pm on 21 December 2012.  I extended the time for the husband to file any affidavits in reply until 4 pm on 16 January 2013.

3. The matter is listed for a three day final hearing commencing today.  Notwithstanding when the matter was listed for Mention before me on 11 December 2012 all three parties were keen to retain the final hearing date.  They have all failed to comply with my orders in relation to the filing of affidavits and now seek leave to file their respective affidavits out of time.  I will deal with them each in turn. 

4. Firstly, the husband seeks to file an affidavit he swore on 17 January 2013.  That addresses two issues.  Firstly, the fact that he has now lodged tax returns for the financial years ending 2006, 2007, 2008, 2009, 2010 which he says will give rise to a CGT liability referable to shares he traded during the marriage.

5. It is submitted on behalf of the wife that there is no evidence of the returns, copies of which have been annexed to his affidavit have actually been filed or it follows from that submission that they will be filed in that form or that that amount of tax is payable or will be paid.  It is further submitted that if the evidence was to be admitted Mr O, the wife’s accountant would need to consider that evidence and that further evidence might be required.  The wife’s primary position is that these proceedings have been on foot for some years and it has been open to the husband to prepare his returns and make this information available at any time during the proceedings and that the wife would be disadvantaged by the admission of this evidence at this stage either in the conduct of the matter or in the event that it becomes necessary for the matter to be adjourned.

6. The husband’s case is that he should be given credit for the money he says he made from share trading which he says he contributed to the redevelopment of the property at C Street, Suburb T, (“C Street”).  If I were to include his alleged taxation liability in the pool that would arguably correspondingly diminish the size of his alleged contribution.  In those circumstances the husband conceded that he would not seek to rely upon those paragraphs of the affidavit he now seeks to file as he does not wish to delay the hearing.  The other issue he addresses in this affidavit is in relation to his share trading.  In particular he refers to and seeks to rely upon Banker’s Trust (“BT”) transactions statements which are annexed to that affidavit.

7. It is submitted on behalf of the wife that the husband’s share trading and his contribution to the redevelopment of C Street has been an issue throughout these proceedings and that not only has the issue been in dispute the wife has been requesting the husband’s records with respect to his share trading since early 2011.  It is clear from the husband’s submissions, however, that he did not contact BT until late 2012.  It is also submitted that the documents that the husband now seeks to introduce do not address the issue of what if any capital the husband had to contribute to the redevelopment and that are likely to require further investigation and possibly further evidence, and at the very least some analysis by the experts engaged by the wife.

8. Although I am mindful that the husband is representing himself in these proceedings that does not mean that he should not be required to comply with orders or meet his obligation to provide full and frank disclosure.  The husband has at times in these proceedings been represented and he advised me that he had obtained advice from a barrister friend.  The wife has complained on more than one occasion and in fact continues to complain about the husband’s failure to provide full and frank disclosure, and I am satisfied that the husband would understand that obligation.

9. Whilst the fact that the husband is acting on his own behalf might explain why he might seek to extend the time for filing his reply to the wife’s affidavit, it does not explain why at this late stage of the proceedings he is producing documents in relation to issues that have been in issue throughout the proceedings as against new issues raised in the affidavits of the wife and the second named respondent. 

10. I must weigh up the positions of all parties and not just the husband.  In all of the circumstances I am satisfied that the wife should not at this stage of the proceedings have to meet a case based upon documents which should, and I find no reason why they could not have been provided at a much earlier stage of the proceedings, nor if it can be avoided should she be faced with having to seek an adjournment to analyse and obtain evidence in relation to documents the husband has failed to provide. I do not propose to give the husband leave to file his affidavit sworn 18 January 2013. 

11. The husband also seeks to rely upon the affidavit of Mr J in relation to the question of the CGT payable as a consequence of the transfer of C Street to the wife.  This is similarly an issue that has been in dispute throughout these proceedings.  The wife relies upon the evidence of Mr O in relation to this issue.  She filed an affidavit sworn by Mr O on 2 August 2011 and an updated affidavit on 18 December 2012.  The updated affidavit is limited to the calculation of the general interest charge arising as a result of B Pty Ltd’s failure to pay the CGT.

12. The affidavit sworn by Mr J annexes a letter to the husband dated 15 September 2011 clearly responding to the affidavit of Mr O.  There is no suggestion that the husband did not understand the issues or understand that he was required to file his documents in accordance with the orders.  From my observations of him to date he appears quite capable of conducting the proceedings on his own behalf and understands what is required.  One obvious example of this is that he previously filed an application in a case seeking to have the matter proceed on an undefended basis because the wife had failed to comply with previous orders.  The husband was clearly aware that the wife intended to rely upon the evidence of Mr O as demonstrated by the letter from Mr J addressing that evidence.

13. Whilst I am not prepared to allow the husband to use the fact that he is representing himself to circumvent his obligation to provide full and frank disclosure or to comply with orders of the Court that being said Mr J’s evidence would appear to be a large degree consistent with the evidence of Mr O and any dispute between them of limited compass.  It is possible that if the two accountants confer they may come to an agreed position.  Even if I did not allow the husband to file this affidavit these are matters which would most likely put to Mr O in cross-examination and that he will need to consider.

14. While this might occasion some delay it is limited and in my view not likely to require the adjournment of the matter.  On that basis I propose to give the husband leave to file the affidavit of Mr J however I will reserve the question of any costs that have or may arise in relation to the late filing of that affidavit. 

15. The husband also seeks leave to file the affidavit of Mr W.  It is submitted by Mr Hammet for the wife that Mr W’s report is essentially a critique of Mr F’s report that unlike Mr F, Mr W has relied upon what the husband has told him and spreadsheets prepared by the husband and not source documents.

16. Whilst that appears to be correct that ultimately will be a question of what weight I should give to his evidence rather than in these circumstances a reason to necessarily exclude that evidence.  The husband clearly understood that the wife intended to rely upon Mr F’s evidence and although there is some dispute as to the adequacy of his disclosure cooperated with Mr F for the purposes of his report.  It is also clear however that the husband held out some hope that as he said Mr F would correct what the husband described as the errors in his report and that it would not be necessary for him to obtain his own report.  Mr F’s report was not filed and served in accordance with my orders.  Whilst the wife blames the husband for this, this remains to be tested, and I’m not in a position to make findings in relation to whether or not the late filing of this affidavit is as a result of the husband’s failure to provide disclosure.

17. Whether it is or is not given that Mr W’s reports is largely a critique of the evidence of Mr F in balance I am satisfied that the wife or the second named respondent will not be disadvantaged if I give leave to the husband to file his affidavit.  The affidavit does not raise any new evidence of any significance and as with the evidence in relation to the CGT it is possible that if the two experts confer they may be able to reach agreement or at least limit any dispute between their respective positions.  These would appear to be matters that can be addressed in evidence rather than requiring further evidence.

18. I will again reserve the question of the costs incurred as a result of any delay caused by the introduction of Mr W’s evidence. 

19. Finally, the husband seeks leave to file the affidavit of Mr R which essentially annexes a number of invoices evidencing the building costs which the husband had previously referred to but not specifically discovered.  This is not new evidence as such and subject to cross-examination as to the veracity of that evidence can be taken into account by both Mr F and Mr W without one would think too much difficulty and I propose to grant the husband leave to file that affidavit. 

20. As previously mentioned both the wife and the second named respondent have also sought leave to file further affidavits.  The wife has not strictly complied with the orders with respect to the filing of documents however these documents were available to the husband, do not raise new issues and he has not taken objection to them.  The second named respondent also seeks leave to file the affidavit of Mr A Callen sworn 17 January 2013.  I’m advised by Mr Ogge that Mr A Callen was overseas and unable to swear his affidavit by the required date.  In any event the affidavit does not raise any issues that are likely to take the husband by surprise and I propose to give leave to the second named respondent to file the affidavit.

21. Finally, I note that there are a large number of annexures particularly annexed to the husband’s affidavit.  As previously indicated I will not, until referred specifically to the particular annexures, treat those as evidence in the case until it becomes clear that they are relevant to the case. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 21 January 2013.

Associate: 

Date:  5 February 2013