Hirschfield and Hirschfield and Anor

[2007] FamCA 268

FAMILY COURT OF AUSTRALIA

HIRSCHFIELD & HIRSCHFIELD AND ANOR (NO. 2) [2007] FamCA 268

FAMILY LAW - PROPERTY SETTLEMENT - Application to set aside orders altering property interests - Case management

Family Law Act 1975 (Cth)

APPLICANT: MR HIRSCHFIELD

RESPONDENT: MRS HIRSCHFIELD

INTERVENOR: MARSHALLS & DENT (a firm)

FILE NUMBER: MLF 2154 of 2005

DATE DELIVERED: 20 MARCH 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J.

HEARING DATE: 20 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR INDOVINO

SOLICITOR FOR THE APPLICANT: KLONIS KIRBY & CO

COUNSEL FOR THE RESPONDENT: MR TERZIOVSKI

SOLICITOR FOR THE RESPONDENT: ROSALIE GUTMAN & ASSOCIATES

COUNSEL FOR THE INTERVENOR: MR McBRIDE

SOLICITOR FOR THE INTERVENOR: MARSHALLS & DENT

Orders

1. THAT the return date for the Form 2 application of 21 March 2007 be vacated.

2. THAT the further hearing of the extant interim and final applications of the husband and wife be adjourned for mention before Young J. on Thursday 29 March 2007 at 10.00 a.m.

3. THAT on or before 4.00 p.m. Tuesday 27 March 2007 the wife make, file and serve an affidavit as to her knowledge, belief or information upon:

   (a)the property previously owned in Israel and identified in the affidavit material now before the Court; and

   (b)the proceeds of sale of such property and how they were dealt with by the husband and/or wife.

4. THAT the wife exhibit to her affidavit such bank records, statements and documents as may explain either of the issues.

5. THAT forthwith the solicitors for the husband and wife confer, at a mutually convenient time and each of them make disclosure and discovery to the other of any document, bank record, statement or transfer of funds of and relating to property or moneys owned by one or other of them, or themselves jointly and now the subject of issue in these proceedings.

6. THAT there be mutual and informal discovery and inspection as between solicitors and parties by each of the husband and wife.

7. THAT the attendance of the Intervener at the adjourned mention date, 29 March 2007, be excused.

8. THAT the costs of all parties of and incidental to the mention this day, and for a period of two (2) hours, be reserved for determination at the adjourned hearing date.

9. THAT the extempore reasons for judgment delivered this day be transcribed, be placed upon the Court file and be made available to all parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2154 of 2005

MR HIRSCHFIELD

Applicant

And

MRS HIRSCHFIELD

Respondent

And

MARSHALLS & DENT (a firm)

REASONS FOR JUDGMENT

1. The matter of Hirschfield returns to court this morning for mention.  Mr Indivino of counsel now appears for the husband, Mr Terziovski of counsel appears for the wife and Mr McBride again appears as the intervenor.

2. I should at the outset say that I am part‑heard in a defended matter and that this matter was intended for a brief mention.  In the lead‑up to this hearing the wife has filed a Form 2 application returnable today seeking compliance by the husband with previous court orders and for a payment out to her of certain moneys from a trust account where some $90,000 AUD (approximately) is held pending further order. 

3. In support of that application there is an affidavit filed by her solicitor, Ms Gutman and a significant bundle of exhibits thereto, a further affidavit of the wife and an updated Form 13 financial statement of the wife.  Those documents are identified as court documents 30‑33 inclusive in the court file. 

4. Subsequently, the husband has now caused to be filed a Form 2 application in the case, document 34, seeking a release of moneys to him from that sum held by the wife's solicitor and as against the intervenor seeking orders for inspection and photocopying of their file, which is currently held by way of a lien for outstanding court costs.  In support of that application the husband filed two affidavits, being documents 35 and 36 on the court file.  One of those affidavits predominantly is filed in support of the interim application, the other is being filed in support of the substantive section 79A application. 

5. Additionally, the husband has now filed as court document 37 further and better particulars of grounds supporting his primary application - that is, as to why there was an alleged miscarriage of justice on the grounds of fraud, suppression of evidence, duress or otherwise, and seeking to set aside the consent orders made by Dessau J on 16 August 2006.  I have perused all of those documents.  Otherwise, I have had brief submissions from counsel appearing this day for the husband and wife. 

6. This matter has come before the court at a time when I am part‑heard in another defended matter and where I can only afford limited time to the alleged urgent interim issues.  Both the husband and wife are in court.  The wife has flown from Israel and is now residing in what she would seek to convince the court are difficult financial and accommodation circumstances.

7. I do not propose to traverse the merits of the competing applications this day. I propose to stand matters over until next Thursday, 29 March at 10 o'clock, but specifically for mention or for submissions on interim issues. I do not envisage that matter will occupy more than an hour or so of that morning. The issue with the hearing of the section 79A application remains; that is an interstate judge will be required to hear and determine those issues because of the allegations made against Mr Rosen of counsel and Mr McBride, solicitor. I make no comment on those allegations and have heard no evidence nor submissions in that regard.

8. I will require the wife to make, file and serve one further affidavit.  I well understand the submissions of her counsel that she has disclosed to the court in paragraphs of her earlier affidavits her knowledge or understanding of the dealings that she had or the family had with a property in Israel and the proceeds of sale resulting therefrom.  There is an allegation that part of the moneys were expatriated to Australia.  What I require her to do is to file in that affidavit to the best of her knowledge and belief all of the financial and other circumstances surrounding those transactions and exhibit relevant documents in support of her evidence.

9. The husband has now new solicitors.  My understanding is that they have not sighted the documents that previously were the subject of disclosure and inspection between the wife's solicitor and the former solicitors for the husband, Mr McBride and his firm.  I am going to require the two solicitors to confer at a mutually‑convenient date immediately and discover and examine those financial and related documents.  I do so to ensure a level of justice in the case but also so that both parties, and in particular the husband and his legal advisers have a fair and complete knowledge of documents relating to those financial and property transactions. 

10. This case must not proceed on speculation.  At the end of the day there will be an onus of proof applied.  It may be at the higher end of the probability scale.  I leave that entirely to the trial judge.  Where there are documents available and to the extent that they are relevant they must fully and properly be examined and understood. 

11. The husband additionally says that he would now like released funds to further explore in Israel the trail of money, albeit that it may be cold, as some 15‑plus years have expired since the sale of the property and the commencement of the financial repatriation of money to Australia.  Again I make no comment, I do not pre‑judge that issue; but the husband would well and truly have to give further and better particulars of what documents he would likely locate in Israel and the source of those documents and how he would plan the overseas investigation.  I put the husband and his solicitors on notice of that likely requirement.

12. Otherwise I record that there have been submissions between counsel for the husband and myself and subsequently counsel for the wife as to the way in which the outstanding issue of an concerning the intervenor and their claim for costs can be dealt with.  I do not propose to bind any trial judge, but there has been discussion on the basis that the section 79A proceeding must be heard and determined, and, if necessary, the consequential section 79 application by way of a re‑hearing of the property claim.  Thereafter, and as a discrete issue, and perhaps not involving the wife, there could be a determination of the claim for costs of the intervenor. 

13. One of the benefits of that proposed course of conduct would be that the intervenor would be excused from the hearing of all other applications, save when and if required to give evidence, or otherwise as solicitors or the trial judge may agree.  Again, specifically I am not case‑managing these issues at this stage of the proceedings.  What I propose therefore to do is to require that further affidavit and disclosure, but otherwise make no orders and stand this matter over for mention next Thursday.

14. I will have those orders taken out, the file put together.  I will make what inquires I can of an interstate judge and deal with the matter as I can next Thursday, but exclusively on the basis that I am not guaranteeing any interim hearing.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 29 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HIRSCHFIELD & HIRSCHFIELD