Halpin and Halpin

[2009] FamCA 720

FAMILY COURT OF AUSTRALIA

HALPIN & HALPIN [2009] FamCA 720

FAMILY LAW – PROPERTY – Property proceedings listed before the court for final hearing in one months time – Age and health of husband an issue – Non-compliance with filing of affidavits and financial discovery and documents – overseas assets – Allegations of offshore corporate activities and transfer or disposal of significant funds

Family Law Act 1975 (Cth)

APPLICANT: MS HALPIN

RESPONDENT: MR HALPIN

FILE NUMBER: MLF 762 of 2006

DATE DELIVERED: 3 AUGUST 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TEASDALE

SOLICITOR FOR THE APPLICANT: KENNA TEASDALE

COUNSEL FOR THE RESPONDENT: MR SPICER

SOLICITOR FOR THE RESPONDENT: MADISON LAWYERS

Orders

IT IS ORDERED:

1. THAT following upon the attendance by the husband on his cardiovascular surgeon, Dr A, on 14 August 2009 a report be requested and made available to solicitors and to this Court as to the current medical and surgical prognosis for the husband and all issues arising therefrom that may impact upon the future hearing of the defended applications now before the Court (and which were scheduled for final hearing on 31 August 2009).

2. THAT forthwith the solicitors for the parties prepare and send a letter of instructions to Dr A so that he may be aware of the current circumstances of litigation before this Court.

3. THAT the husband use his best endeavours, subject to professional medical advice, to give instructions to his solicitor to facilitate both the preparation and filing of his trial affidavit and a statement of his financial circumstances and his responding affidavit to the wife’s forensic accountant.

4. THAT any application for interim orders as may be sought on 31 August 2009 is to be filed and served as soon as practicable and the solicitors are to confer on any such orders and discuss possible outcomes prior to the future listing of this matter.

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

6. THAT both parties are to forthwith attend to the preparation of and disclosure of financial information to and including 30 June 2009 and each of them give all necessary instructions and do all acts and things to forthwith comply with their document filing obligations with the Australian Taxation Office and the Australian Securities & Investment Commission.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 762 of 2006

MS HALPIN

Applicant

And

MR HALPIN

Respondent

REASONS FOR JUDGMENT

1. In this matter Mr Spicer of counsel appears for the husband, instructed by Mr Bonsall.  Mr Teasdale, solicitor, appears for the wife.  The wife is in court; the husband is unable, for reasons that I will identify hereafter, to be in court this day and presently he is on the Gold Coast at his home at N.  Before the court is a substantial property and financial application, which is listed to commence its final trial on Monday, 31 August of this year.  It is listed for four days as a defended matter.  I am reminded by Mr Spicer that there was been no recent mediation, out of court, of the matters in dispute. 

2. The purposes of this extempore judgment are primarily to identify the factual issues and matters in conflict between the parties.  I do not intend to deal with any disputed legal matters.  The matter was last before me on 21 July 2009, and on that day, I directed that, on or before today, an affidavit be filed from a medical practitioner as to the husband’s current state of health and how that may impact upon the hearing the defended matter.  I made further orders for the production of documents and directed that the affidavit of Mr W be filed and that it deal with matters put in issue by the wife’s forensic accountant and disclose other information and knowledge as to overseas funds and investments. 

3. There were to be updated valuations of the four investment or residential properties at B, S, M and N.  Finally I observe that there was, annexed to that order, a notation of the court seeking to disclose and make available all financial documents, certainly to 30 June 2008.  As we are now into the 2009/2010 financial year, it is apparent that there should be financial documents, disclosure and inspection as at 30 June 2009.  Pursuant to paragraph 1A of those orders, the husband’s solicitor has now filed an affidavit.  Annexed to that affidavit are various letters from the husband’s general practitioner and his cardiovascular surgeon, both of Queensland. 

4. The two annexed letters from the general practitioner are dated 31 July 2009, and I have read the documents.  They disclose that the husband has a significant adjustment disorder of depression, anxiety and ongoing stress, primarily related to these court proceedings and the financial separation from his wife.  In that first letter it was said that the husband had developed heart palpitations and, by way of background, had some form of surgery earlier this year, in May.  The follow up letter of the same day, and written at a time when the husband had returned to his nearby general practitioner, advised the court that he (the husband) has rapid atrial fibrillation and, as a result, an urgent referral has been made to Dr A in his Brisbane cardiology practice.  I am advised that appointment is fixed for Friday, 14 August, though, looking at the 28 July letter, that date has been seemingly previously arranged and cannot be brought forward. 

5. Mr Spicer’s primary submission identified the health and well-being of the husband.  I understand that he has previously attended with his Melbourne solicitor at counsel’s chambers for the purposes of giving instructions for his affidavit, which is his primary source of evidence in the matter.  That is incomplete and is yet to be filed.  What I have indicated to counsel is that there must be a report filed of the husband’s current state of health by his cardiovascular surgeon as soon as practicable, not necessarily by way of affidavit to the court but by way of a report to the solicitors. 

6. I will require the solicitors to write a joint letter forthwith to that surgeon, with a copy to the general practitioner, identifying the state of proceedings before the court, how long the matter has been in the court list awaiting hearing and the fact that it had reached the end of the queue and has been allocated a defended hearing date on 31 August.  That is a matter of importance.  The stress, anxiety and depression of and incidental to that court hearing, may be having a major impact upon the husband.  I make no finding in that regard but merely identify the issues that have been raised by his counsel and the general practitioner’s letter. 

7. The reality of this case is that, at some stage, the defended hearing must be heard and concluded or otherwise the matter will need to resolve out of court at mediation or discussions between solicitors and the parties.  The pressure upon the husband, if indeed it is related to the existence of this court case, can and will only finally be managed or cease upon a just and equitable settlement being concluded.  Currently, as to evidence, Mr H has a report before the court that raises a number of matters that might be seen to be contentious by the husband, and he has had his solicitors recently prepare and file an affidavit of Mr W, filed 2 July 2009, Document 30 in the Court Index. 

8. That gentleman is an overseas based investment and financial consultant and businessman, who describes himself as a company director and practises from offices on Hong Kong Island.  That affidavit takes issue with some of the matters already in evidence before the court, and raises a number of issues which in itself need to be supported by the production of documents or otherwise needs answers.  The reality is that the husband primarily gave instructions, and his trial affidavit is of significant issue and importance in the proceedings.  I am advised that that affidavit cannot be completed at this stage because of lack of instructions, and the reality that I have expressed is that the husband’s solicitor might simply have to fly to the Gold Coast and take instructions in a more relaxed atmosphere. 

9. That may or may not be possible.  I make no finding and I will pronounce no orders in that regard but, at some point in time, that affidavit must be completed, or, more particularly, I must be satisfied that every reasonable effort has been made to complete that affidavit by way of taking of meaningful and relevant instructions from the husband.  As a background, the husband was, upon his return to Australia from Thailand, residing in the S property.  He has now elected to live in the N unit and that may be related to his medical specialists, treatment and advice. 

10. I have floated with counsel the option that the husband needs to reflect upon which residence will be his primary residence and where he will live, as it impacts upon the court hearing date and ability to file evidence and give instructions.  I note the letter from the general practitioner makes it clear that flying is not a restriction upon the husband.  That matter, perhaps, will be further dealt with by the specialist in his upcoming consultation with the husband.  The wife resides in B.  There was an investment property at M, though that is an asset of the superannuation fund. 

11. As I hear from legal practitioners today, the husband has certain financial pressures upon him which include payment of legal costs and expenses, not only of this case but in a commercial investment made with X Business.  That company is in liquidation and has attracted considerable newspaper publicity.  As an investor, the husband is required to continue monthly payments of $6000 per calendar month, and that is an issue both of stress and concern for him, and financial contribution required.  As to the wife, she has the financial pressures of litigation, including her lawyers and Mr H’s accountancy fees.  There will likely be many other fees and expenses of this case to confront her in the short term. 

12. As an overview, legal practitioners have agreed that the pool of assets in this case will lie somewhere between $4 million and $7 million, and that is a matter for evidence upon which I make no finding.  A simple observation, however, is that there is such an asset pool that each of them should have some level of financial security and dignity.  And one of the interim issues that may be before the court will relate either to the sale of a property asset or the borrowing of moneys upon an asset, and some interim property settlement distribution or other release of moneys to them.  I would encourage solicitors and clients to talk upon this issue over the next few days, but it is a matter which I reserved to myself on 31 August. 

13. If the matter is to be progressed on that day, there will need to be an application filed, supported by proper affidavit evidence, identifying with particularity the orders sought and the source of funds and what asset made be sold or used for security purposes.  If it is possible by that day, some updating affidavit from the husband’s solicitor as to the X Business investment would be helpful, more particularly, dealing with any ongoing commercial litigation or the position adopted by the commercial solicitors engaged by the investors, though that is said with an understanding that that matter will likely lead to significant mediation or litigation over the future time span. 

14. What I propose to do today are to make limited case management orders in respect of the preparation for further hearing on 31 August.  I do so in the realistic expectation that the final defended matter will be unlikely to proceed that day and it will be more likely interim issues.  What would be most helpful would be for the husband to be able to give full and proper instructions to his solicitor, so his affidavit can be filed and served. 

15. It may be, and I will take an understanding approach if the affidavit deals with many, but not all of the complex issues in this case, but sufficient to consider any interim order.  Ultimately, the ability of the husband to give comprehensive instructions will be dependent upon his health.  The wife is entitled to a full and detailed statement and knowledge of the husband’s current state of health and how it actually is impacting upon him and his ability to have instructions given by him and to present and prepare his case to the court. 

16. The issue of financial disclosure is relevant, and the obligations remain imposed upon the husband and wife to continue to provide information.  Given that we are now more than one month into this current financial year, the reality is that this case needs to be prepared upon all financial statements and disclosure to 30 June 2009, and that immediately involves preparation of documents and continuing financial disclosure from one party to the other.  In particular, it means that the husband will have to give to his accountant instructions for the preparation of tax returns and financial statements.  He would therefore need to comply with timelines required by both the Australian Taxation Office and the Australian Investment and Securities Commission, and one would think that he can and will comply with those matters diligently. 

17. That is a matter that I will need to hear upon on 31 August.  As I said at the outset, these matters dealt with in this extempore judgment are more of the factual background to this case.  I will pronounce orders as indicated above and I will have these reasons transcribed, placed upon the court file and made available to the solicitors for the parties.  It will provide a background to the approach that I bring to the matter on 31 August. 

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: