Hirschfield and Hirschfield and Anor

[2007] FamCA 204

FAMILY COURT OF AUSTRALIA

HIRSCHFIELD & HIRSCHFIELD AND ANOR [2007] FamCA 204

FAMILY LAW - PROPERTY - EVIDENCE - S.79A - Procedural issues - Further affidavit to be filed

Family Law Act 1975 (Cth)

APPLICANT: MR HIRSCHFIELD

RESPONDENT: MRS HIRSCHFIELD

INTERVENOR: MARSHALLS & DENT

FILE NUMBER: MLF 2154 of 2005

DATE DELIVERED: 13 March 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: Young J

HEARING DATE: 13 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TIERNEY

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 further hearing of all extant applications be adjourned for mention at 10.00 a.m. on Tuesday 20 March 2007 at 10.00 a.m. before Young J.

2. THAT on or before 12.00 noon on Monday 19 March 2007 the husband make, file and serve one (1) affidavit consolidating all of his facts and evidence in relation to the s.79A application and in particular consolidating his earlier affidavits filed 17 November 2006, 18 December 2006 and 3 January 2007 and incorporating the additional facts and information supporting the orders sought and the particularity of such orders as are now identified in his amended application for final orders filed 13 March 2007.

3. THAT the husband provide further and better particulars of the grounds relied upon and as are now identified in sub-paragraph (B) – paragraphs (i) – (vi) of his amended application for final orders filed 13 March 2007.

4. THAT if there are any urgent interim financial matters that the husband intends to put before the Court then a Form 2 application detailing those orders be filed and served by 12.00 noon Monday 19 March 2007 together with an appropriate affidavit supporting those interim orders now sought.

5. THAT on or before 4.00 p.m. Friday 16 March 2007 the wife make, file and serve any Form 2 application for interim orders, together with an affidavit in support thereof and that such application be made returnable at 10.00 a.m. on Tuesday 20 March 2007.

6. THAT both the husband and wife attend Court on the adjourned hearing date with their legal representatives.

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

8. THAT the costs of and incidental to the mention this day of the counsel and solicitor now appearing for the husband, the counsel for the wife and the solicitor for the interveners be reserved and be limited to a period of 1½ hours and such costs, and earlier costs be determined on the further adjourned hearing date.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2154 of 2005

MR HIRSCHFIELD

Applicant

And

MRS HIRSCHFIELD

Respondent

And

MARSHALLS & DENT

REASONS FOR JUDGMENT

1. The matter of Hirschfield is again before me for mention.  On this occasion, Mr Tierney of counsel, instructed by the recently appointed husband's solicitors, appears.  The wife is represented by Mr Terziovski of counsel and Mr McBride, solicitor, appears for his firm, who are interveners.

2. The matter was last before me on 6 March 2007 and I made certain orders for compliance with past orders and otherwise the matter was stood over to this day for further mention.

3. This morning I have been provided with copies of documents now filed on behalf of the husband.  They are a Form 1 application for final orders as amended, a Form 13 financial statement, and the document that I required to be filed pursuant to paragraph 4 of my initial case management order of 21 February 2007.

4. It would seem that those documents were served upon, or at least provided to, the legal practitioners for each of the other parties over the long weekend just concluded or thereabouts.  The actual timing is not of particular concern to me.  There has been extremely limited time for any instructions to be taken.

5. The application for final orders sets out the specific orders sought and gives particularity of grounds relied upon.  They are provided for, in pages that are unnumbered, at paragraphs A and B thereof.  The particular grounds sought are, in part, unsubstantiated by affidavit material.

6. Dealing firstly with the issues raised in subparagraphs (v) and (vi) thereof, there must be a more complete affidavit of the husband dealing with all issues of duress, incompetence or negligence.  What occurred today was that I provided, as a matter of courtesy, to the husband's counsel and solicitor, and to be shown the husband a copy of the signed order on the court file.  What the court file shows by way of the pink court officer's sheet and the accompanying document is that the matter was listed for mention before her Honour Dessau J on 16 August 2006.  The matter was first mentioned at 2.20 p.m. and concluded at 2.25 pm.  Mr McBride, solicitor, appeared for the husband, and Ms Gutman, solicitor, appeared for the wife.

7. The annexed orders purport to bear the signature of both the husband and wife and where there are amendments, an initial from the husband and wife.  Those orders are dated 16 August 2006.

8. I make no finding whatsoever as to the orders or when or where they were signed.  I do understand, and it is not in his affidavit, that the husband alleges that the signature is not his, that he did not sign the document, and presumably therefore did not sight the document.  In any event, through his counsel, he indicated that he was not at court on 16 August 2006 but was otherwise engaged.

9. I have not sought a full response from Mr McBride who formally represented the husband and now appears for the intervening firm of solicitors in respect of fees owing.  Mr McBride, however, has indicated to the court that the husband attended his office on 16 August 2006 at some time prior to 2.20 pm but did not accompany him to court.  He certainly did indicate to the court that the husband signed the document that had been drawn up following the settlement in the previous late afternoon (15 August 2006).

10. All of these matters will have to be investigated as they go to the core of the husband's case of alleged duress and that allegation has now been expanded by allegations of incompetence and negligence which the husband of course must prove.

11. Again, I deal no further with the facts and I make no finding whatsoever.  I take this opportunity to repeat, yet again, that I will not be involved in any defended hearing or other form of hearing where evidence is given if the matters involve evidence to be given by Mr Rosen of counsel or Mr McBride.  I have known both of these legal practitioners for many years.  That is likely to be the case for any other Judge in the Melbourne Registry of this court and I have previously said it will necessitate an interstate Judge hearing all final applications when they are ready to proceed.

12. I have further concerns, as to issues of preparation, about the document filed by the husband today in support of the application, that is, the case summary and analysis of argument.  What the court needs ultimately is evidence.  If there are allegations of assets that the wife owns in Israel and has refused to disclose or to account for, there needs to be evidence from which a conclusion could be drawn or at the least, reasonable and proper inferences of fact deduced. 

13. The arithmetic approach of the alleged current value of the wife's assets as set out in the husband’s legal submissions, sub-paragraph F(c), may be intriguing, but whether it is accurate or not and whether it is acceptable in evidentiary form is a very different issue.  Again, I do not make any ruling, I merely highlight that allegation of the calculation by which the wife has said that she would now approximately have $2 million offshore needs proof and to be based in fact.  That is one of the challenges of the husband.

14. In that submission, the solicitors for the husband indicate that they intend to rely on several of the various affidavits that have been filed by the husband or on behalf of the husband. These are identified in sub-paragraph (c). The simple reality in this case is that all of the evidence of the husband of and related to the application pursuant to section 79A of the Family Law Act 1975 needs to be reconsidered and consolidated. It is reasonable for the court to expect, under the existing Family Law Rules, for there to be one carefully prepared factual affidavit setting out the matters and facts which are relied upon by the husband. Clearly, there are additional matters that have been raised from the bar table today that must go to the very heart of his allegation in relation to his past legal practitioners. These need to be in affidavit and in a final form so that the issue can proceed to hearing.

15. In the unique circumstances of this case, I have not as yet given any particular thought, nor have I been asked by any practitioner, to split the hearing so that the first step of any hearing would be the application to set aside existing orders under s.79A and thereafter the consequential issue would be, if successful in the initial application, whether there be a rehearing and what is the matter to be reheard and then determined pursuant to section 79 of the Act. That approach of course is contrary to reported Full Court decisions. I would not likely adopt that approach but it may be that another Judge will have to determine that matter. I make no finding on that issue.

16. From this mention this morning which has now occupied more than one hour, it is clear that the husband's affidavits do need to be reconsidered, updated and made more complete.  I propose to require that to be done as soon as practicable.  I see no reason why it could not be done by next Monday, given the consolidation of the three affidavits post-August 2006 is a manageable task, and the additional matters and facts are known to the husband and can be told to his legal practitioners forthwith.

17. I am uncertain but it does appear that there are some preliminary property issues in any event the husband would want to raise with the court and which might include a repayment of some funds from the wife's solicitor, either to his solicitor or to himself.  The husband alleges he is in a very difficult financial circumstance as to income.  The scrutiny of his Form 13 financial statement will not occur today but there will be very real issues if this matter proceeds on an interim or otherwise on a final basis as to his actual gross income from all sources, expenditure, liabilities and other financial matters which I put to one side without any finding whatsoever.  That document does need urgent and immediate attention.

18. On behalf of the wife, her counsel has indicated that she will be flying from Israel this week and arriving here on Thursday.  Initially the mention of this matter was to be on Friday of this week but I will adjourn that mention to next Tuesday, 20 March 2007, before me at 10.00 a.m.  On behalf of the wife, it is foreshadowed that there are urgent interim property matters or financial issues to be raised in court.  No application is as yet filed.  The wife has filed no further affidavit.

19. Any financial issue the wife desires to raise will not be heard unless there are proper legal documents drawn, filed and served.  In that regard, I will permit the wife until 4.00 p.m. this Friday to make, file and then serve any application or affidavit.  In so doing, I am not giving her any guarantee whatsoever of a hearing date on interim matters.  I do not know what will be in the application.  The husband is entitled to have time to respond thereto.  I make no finding upon her alleged difficult financial circumstances and her urgent need for moneys or partial performance of the court orders.  I have raised with her counsel there may be jurisdictional issues, given that there is already a section 79 determination that she is looking to uphold.  Again, all of these matters can be re-mentioned next Tuesday, but I carefully emphasise to all legal practitioners and to the husband, who is in court, that the future hearing of this matter remains totally uncertain, both as to content and timetable, save that a final hearing will not be before me if current allegations remain as I have earlier outlined.

20. An interim issue that does need to be resolved is the production of documents from Marshalls & Dent, Solicitors to the husband.  They formerly acted for him but for some reason, it would seem that the husband does not have copies of past documents.  I would understand that there may be file notes or other documents that he has not sighted.  There is an agreement to produce, as I understand the submissions, certain of those documents that were requested under cover of a letter dated earlier this month.  There is an agreement to pay photocopying fees but there is no agreement to pay associated legal fees incurred by Mr McBride. 

21. As I understand the issue in this case on this limited procedural matter, there are proceedings in the County Court instigated by the husband seeking to claim a multimillion-dollar sum from his former solicitors.  Those proceedings are ongoing.  Mr McBride has referred the matter to his legal professional indemnity insurer and they have engaged a legal firm, Middletons, to represent Mr McBride's firm in that matter.  I know little or nothing of the proceedings in that court, but Mr McBride has explained that part of his time in this case has been taken up in obtaining the necessary instructions or release so that documents can be available to the husband in this court which otherwise might not have been legally available in that County Court proceeding.  I have not heard submissions on this issue.  I make no final finding.

22. What I have endeavoured to raise by way of a suggestion only is that there can be a release and disclosure of those documents as itemised on the basis of payment not only of photocopying fees but of legal fees as sought which are approximately $800.  I would be prepared to reserve as a future issue in this case any payment, refund or security for costs issues so the husband is free to argue the return of that sum of money to him by his former solicitors.

23. I, at this stage, do not propose to pronounce orders in that regard.  All practitioners and the husband have heard that matter raised in court, but whether they proceed upon that basis and then seek orders at the further mention next Tuesday to encapsulate that matter I leave to them.  I indicate I will likely make appropriate orders if I am asked by consent so to do.  That will facilitate payment being made forthwith and the documents released, but that is a matter I leave to the practitioners.  I did sight a letter from the husband's new solicitors dated 7 March 2007 seeking those documents but I return that to Mr McBride who tendered the letter in his submission.  It will not be marked as an exhibit. 

24. For the purposes of these brief reasons, I have had the opportunity to revisit previous orders that I have made on 6 March, 27 February and 21 February.  I am not satisfied that the current documents filed by the husband satisfy those orders and requirements.  There is certainly a lack of factual basis for the current order(s) and that needs to be satisfied by the consolidated affidavit of the husband.  It will also require more particulars to be given upon the grounds relied upon.

25. At the moment, the particulars really do no more than restate the various requirements of section 79A but do not particularly highlight with sufficient detail and reality the suppression of evidence or the fraud committed by the wife. They certainly fall short in terms of the allegations against the solicitor on the grounds of particularity. However, the husband will have the opportunity to further correct and develop those grounds and give further and better particulars by the further mention date next Tuesday.

26. I incorporate into the reasons that I did propose to mention this matter next Monday, but for the convenience of the husband who has indicated he is in another court totally distinct from these proceedings and upon which I do not require information, I have elected to stand the matter over for mention next Tuesday.  I again emphasise it is a mention.

27. For those very brief reasons covering issues that were raised in court over the past one and a half hours but without intending there to be any findings on fact and again with the emphasis that I will not hear this as a defended matter on the current allegations now made, I propose to make the following further orders.

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

………………………………………………………..
Associate: 
Date: 16 March 2007

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