Hatley and Harboard

[2008] FamCA 359

FAMILY COURT OF AUSTRALIA

HATLEY & HARBOARD [2008] FamCA 359

FAMILY LAW – PROCEDURE – Evidence

Family Law Act 1975 (Cth)

APPLICANT: Ms Hatley

RESPONDENT: Mr Harboard

FILE NUMBER: MLF 1286 of 2006

DATE DELIVERED: 7 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 May 2008

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr McGee, O’Farrell Robertson McMahon

Orders

1. That the application in the case filed 30 April 2008 be dismissed. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1286 of 2006

MS HATLEY

Applicant

And

MR HARBOARD

Respondent

REASONS FOR JUDGMENT

1. I have before me today an application in a case filed on 2 May 2008.  It is supported by two affidavits by the respondent, Ms Hatley, both of them in the pro forma fashion, the first seems to have been sworn on 30 April and the second on 1 May. 

2. By request of the parties, I have dealt with this matter over the telephone, because the practitioner for the husband is in regional Victoria, as is the wife.  The matter is part‑heard, and returns before me in about 10 days time for resumption.  The application today seeks permission to present a variety of evidence before the court.  Some of those matters include "shadow valuations of properties" and things like "receipts and accounts". 

3. I have indicated to the wife that she can present whatever evidence she likes, providing it is admissible and a copy has been presented to the husband’s practitioner before the case starts.  Unfortunately, some of the material looks like it is not in a form that could be presented, but that is matter for argument.

4. The second matter relates to an application for the release of funds from B property, which I am told is between sixty and seventy thousand dollars, sitting in the trust account of Mr McGee.  There is no evidence before me today which would enable me to make an order for a partial or interim distribution of property, notwithstanding the strongly emotional plea by the wife that there will be a foreclosure of the property. 

5. The wife says that the notice of foreclosure should have been attached to the affidavit.  I have carefully examined all of the documents that I have been presented with and there is certainly no foreclosure document, nor is there anything in any of the affidavits that would enable me to make any determination of the matter.  In the circumstances, having regard to what the Full Court said in Harris, it would inappropriate for me to make a partial distribution on this material.

6. The third application seeks a request for information from the husband and a variety of other people.  I have indicated to Mr McGee that he needs to be aware of the fact that that request has been made, and he has told me that his client has provided him with boxes of documents, all of which have been inspected by the wife.  I have tried to explain that I am not in a position to give legal advice.  I have urged the wife to obtain independent legal advice, and she has given me a number of reasons why she cannot do that. 

7. The issue of what documents are to be presented to the court is a matter that I will re‑examine on the resumed hearing date, but it seems to me that, even if I made orders in the format that the wife seeks, the reality is that the husband says that he does not have them.  That is not a matter that I could determine on an interim basis, in any event.  It may very well be that it is a matter for determination of credit on the trial. 

8. In passing, I also make mention that the wife has a number of other questions, which seem to me to be revisiting a ruling that I made last year at the hearing; and I have indicated to her that she has a right to seek to appeal against those decisions, should she so wish, and I am not prepared to debate those matters, certainly not at this stage of the trial.

9. In the circumstances, the only appropriate order I can make today is that the application in the case filed 30 April 2008 be dismissed. 

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

Associate: 

Date:  15 May 2008