Jones and Norman

[2009] FamCA 677

FAMILY COURT OF AUSTRALIA

JONES & NORMAN [2009] FamCA 677

FAMILY LAW – PRACTICE AND PROCEDURE – Production of documents

APPLICANT: Ms Jones

RESPONDENT: Mr Norman

FILE NUMBER: MLC 7487 of 2008

DATE DELIVERED: 22 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 22 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Tollhurst Druce & Emmerson

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: Nevile & Co

Orders

1. That on or before 12 August 2009, the husband provide to the wife legible copies of:

   (a)all statements for all bank accounts in his name or held on his behalf or to which he is a signatory (whether solely or with any other person/s) in Australia, Indonesia or elsewhere, for the period from 1 January 2005 to date, including but not limited to accounts with:

   (i)     A Bank Indonesia[i];

   (ii)    B Bank Indonesia[ii];

   (iii)     C Bank Asia;

   (iv)   Westpac Bank;

   (b)all statements for all credit card accounts in his name or to which he is a signatory (whether solely or with any other person/s) in Australia, Indonesia or elsewhere, for the period from 1 January 2005 to date, including but not limited to credit card accounts with:

   (i)     A Bank Indonesia;

   (ii)    B Bank Indonesia;

   (iii)     C Bank Asia;

   (iv)   ANZ Jakarta;

   (v)    Westpac Bank;

   (vi)   Citibank;

   (vii)    American Express;

   (c)all original payslips (including for bonuses) for the period from 1 January 2005 to date from:

   (i)     A Bank Indonesia[iii]; and

   (ii)    B Bank Indonesia[iv];

   (d)any other outstanding documents required to be provided by him pursuant to paragraph 10 of the Orders of the Honourable Justice Dessau made 12 June 2009.

2. That on or before 12 August 2009 the wife shall provide to the husband copies of all documents supporting the withdrawal and the use of funds from the Westpac eSaver account in her name from 21 July 2008, save for funds withdrawn pursuant to court orders.

3. That within 14 days the husband shall provide to the wife’s solicitors an authority to enable the wife to attain a valuation or appraisal and any evidence of comparable sales, of Apartment 2 …, Jakarta.

4. That the final hearing shall be adjourned to 14 September 2009 for three days.

5. That each of the husband and the wife file and serve by 31 August 2009 any further documents upon which they may seek to rely at trial and by 7 September 2009 an outline of case and joint balance sheet.

6. That the husband pay the wife’s costs thrown away by reason of the adjournment fixed in the sum of $7,125 to be paid from the husband’s share of the property settlement.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7487 of 2008

MS JONES

Applicant

And

MR NORMAN

Respondent

REASONS FOR JUDGMENT

1. The case was due to start before me yesterday. 

2. I made orders on 12 June to ensure the production of documents and the preparation of trial material.  Those orders were important because there had been complaints by the wife that she had not received material and that the husband had not complied with various interim orders.  The husband, who lives in Indonesia, had not attended court and I determined that I would not deal with the substance of interim issues in favour of setting up the case properly for the final hearing.  In addition, I had granted leave for several parties to intervene.  Both lived in Indonesia.  So, the desirability of the case being well set up to proceed yesterday was obvious.

3. The husband did attend court yesterday from Indonesia.  The interveners were represented by one of them who had also travelled to Australia for the hearing.  All parties were legally represented.

4. It became clear that the wife had filed her material one week late and, properly, her solicitor had acknowledged to the husband’s solicitor that the time for the husband to file his material should, in fairness, also be extended by one week.  On that basis, his material would have been due on 14 July.  Unsworn material was presented on 17 July, that is last Friday.  It was subsequently sworn.  Yesterday, counsel for the wife objected to it being filed, but in the circumstances of there having been delays along the line in terms of the filing of material, I permitted its filing.

5. Counsel for the wife then sought an adjournment on the basis that the husband had still not complied with the production of some pertinent documents, and other material raised important issues for the wife to investigate so as to ensure that she could properly and fairly pursue her property application.  It is fair to note that, in mentions before this hearing, the wife’s side has consistently pressed the need for an urgent resolution of the financial issues, in the context where it is the husband who is in receipt of most income.  There have been pressing issues like children’s school fees and her need for certainty and security, and there are outstanding issues of property spousal maintenance and child maintenance issues.

6. I am satisfied, in all the circumstances, that the wife’s application for an adjournment is a reasonable one.  The husband’s earnings have always been and are integral to the outstanding issues.  He works in a senior position in an Indonesian bank in Indonesia and he has not been able to produce proper records of earnings during the relevant periods, including recent periods.  It is common ground that there are no tax returns in Indonesia.  Pay slips, therefore, become an important means of recording his income.  He says that he does not retain them, and he now says that he cannot produce bank records beyond six months ago.

7. The husband’s version that bank records are purged or not retained by banks beyond a period of six months is something that he has only put forward in the last days before trial.  There has been ample opportunity for him to do so earlier, during various discussions and requests about production of documents, at the time when I was making orders about production of documents, at a time when production of documents was due, and/or at a time when the wife, through her solicitors, was pressing for the production of documents which, by then, were well overdue.  Yet it is something that has only been said in the days immediately before trial.

8. I emphasise that these documents appear to be absolutely essential to a proper and fair hearing of the case.  The wife’s case is that, in addition to a substantial salary, the husband has consistently received generous bonuses, and without evidentiary proof of his earnings and bonuses, it is difficult for the wife to pursue the case in the way that she needs.  I have readily accepted that she now needs the opportunity to have those documents obtained from his employer and that the documents should be produced by the husband in the manner that is set forth in orders that I propose making today. 

9. Mr Strum for the wife has drafted some orders, and made submissions to support them.  Mr Weil for the husband has also made submissions.  I have made it clear that I will accede to yet another order for the production of documents by the husband. 

10. I have made it clear that I am dissatisfied with the fact that he has not properly complied with orders and has complied with some orders very late.  Moreover, some documents produced were totally illegible, and I am going to have one bundle marked shortly as an exhibit.  They are pink, and purport to be from the B Bank.  The material recorded or the detail of the material recorded is absolutely illegible.

11. It has been said today on behalf of the husband that the original records were held by his solicitor, but he could not photocopy them any better.  It does not appear there was any effort to advise the wife’s solicitor that there was a difficulty in the photocopying, and that the originals were in much better condition. 

12. It brings me, then, to the question of costs.  The wife seeks that I order the costs thrown away at this stage.  The husband seeks that they be reserved. 

13. The wife’s case is based first on what I have mentioned, the fact that the husband has been very late in the preparation of his material.  I have made it clear that is not the argument that supports an order for costs today, in the fact that everyone has been late.  However, he has failed to comply with orders for production.  In addition, very late in the piece, he raised this issue about the purging of records, which has caused the wife to have to try to look at other ways to find that material.  I am satisfied on that basis that costs should be ordered in her favour. 

14. I do not think that it would be a fair outcome to simply reserve costs.  On this particular aspect, there is no question that, but for the husband’s conduct, the matter otherwise could have proceeded.  Any other issues that were a little bit unclear or uncertain probably would have fallen behind these more substantial and important issues.  I am going to order costs, but I will hear from the parties in relation to the quantum. 

15. The amount claimed by the wife is $14,250.  It is an inexact science, but I would prefer to fix the costs now than have further costs incurred in the process.  I propose an order for half the costs sought.  It is on the basis that, although I cannot be precise as to how much preparation needs to be redone for a trial, certainly a great deal of the preparation done now is not wasted, and I am going to take into account that some things were achieved yesterday.  For example, there was the resolution of the interveners’ issue, which everyone has agreed will hopefully reduce the trial by a day.  Accordingly, I shall allow $7125, doing the best that I can.

16. Unless someone has a cogent argument against it, at this stage it would be fair to allow that amount to be paid from the husband’s share of the property settlement.  The trial is very soon. 

17. The orders that I will make today will be in accordance with the Minutes dated today’s date.  I direct that they remain on the court file and the court will prepare the orders. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:  Alison Power

Date:  22 July 2009

[i] Account opened in or about April 2005, when husband commenced employment with A Bank Indonesia but no bank statements provided at all. It is alleged by or on behalf of husband that “Indonesian banks are only able to provide six months of historical data” (see husband’s trial affidavit at para. 2.143) and that the documents have been “purged” (see Exhibit W1).

[ii] No statements provided at all for period prior to September 2007 (albeit that husband commenced employment with B Bank indonesia in or about February 2007) or for November and December 2008, January and March 2009.

[iii] None provided at all.

[iv] No payslips at all provided for period February – April 2007, September 2007, November – December 2007, January 2008, December 2008, January – February 2009, April 2009. Further, no copies of original payslips provided for March 2009 and June 2009.