Kirk and Kirk

[2010] FamCA 696

FAMILY COURT OF AUSTRALIA

KIRK & KIRK [2010] FamCA 696

FAMILY LAW – PRACTICE AND PROCEDURE – Case management procedural orders

APPLICANT: MS KIRK

RESPONDENT: MR KIRK

INDEPENDENT CHILDREN’S LAWYER: MR MULVANY

FILE NUMBER: MLC 3322 of 2009

DATE DELIVERED: 4 AUGUST 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 4 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SALAMANCA

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR MELILLI

SOLICITOR FOR THE RESPONDENT: BERGER KORDOS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER MR MULVANY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER TJ MULVANY & CO

Orders

IT IS ORDERED:

1. THAT Mr Mulvany be excused from attending at further interim hearings in this matter, unless the best interest of or issues concerning the child Z born … July 1995 are before the Court.

2. THAT within seven (7) days the solicitors for the wife make, file and serve the report of the single expert witness Mr M, Chartered Accountant.

3. THAT on or before 3 September 2010 the solicitors for the wife make, file and serve a further amended application detailing the specific orders then sought by the wife, and to include the joinder of any and all other respondents.

4. THAT in support of that further amended application the wife make, file and serve, in short form, an affidavit explaining the particular orders sought, the reasons therefore and as to the joinder of all respondents.

5. THAT on or before 15 September 2010 the solicitors for the husband make, file and serve their further amended response.

6. THAT the return date of the subpoenas issued upon the ANZ Bank and the Laiki Bank be further extended to the Subpoenas Clerk list and be made returnable on 24 August 2010 at 9.30 a.m.

7. THAT any further subpoenas to be issued by the wife’s solicitors to S Company in the State of Victoria is to be made returnable on 24 August 2010 at 9.30 a.m.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the solicitors for the husband and wife.

9. THAT all extant applications be adjourned for a hearing of one (1) before Young J on Friday 8 October 2010 but subject to all part-heard cases.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife and Solicitor appearing for the Independent Children’s Lawyer.

IT IS NOTED

A.THAT the Court has recommended to the parties that they convene an out of court property and financial settlement discussion prior to the adjourned hearing date and such conference involve any third parties as may then be joined in these proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3322 of 2009        

MS KIRK

Applicant

And

MR KIRK

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Krik is before me for case management and procedural orders.  Mr Salamanca of Counsel appears for the applicant wife; Mr Melilli of Counsel for the husband.  Both parties are in court, as are instructing solicitors.  Mr Mulvany, solicitor, had earlier announced an appearance as the appointed Independent Children's Lawyer acting for the interests of the child, Z, who is now 15 years of age.

2. Mr Mulvany outlined his position to the court and asked to be excused from further interim proceedings and until the defended hearing, if by then his services are still required.  I will therefore excuse, by agreement with the parties, the attendance of Mr Mulvany at further interim mentions of this matter.

3. The wife is applicant and has now both amended and further amended her applications, the last updated document being filed 31 March 2010.  As a result of financial discovery and information, she has now identified the potential need to further amend and to include as respondents the husband’s aged parents.

4. That is in the context that a financial report is being prepared by Mr M, chartered accountant and whilst that document was to be filed by this day it will now be available later this week.  If the wife elects to further amend her primary application it will lead the husband and his legal practitioners to amending his response to the orders sought on behalf of the wife.

5. What I propose to do is prepare an updated timetable for the filing of documents and the consideration of all other issues and then list the matter for case management and further direction before me on Friday, 8 October 2010 at 10.00 a.m.  I am asked by counsel for the wife to extend the time for compliance with subpoenas by both the ANZ Bank and Laiki Bank, and that I will do.

6. I will require the affidavit annexing the financial report of Mr M to be filed within seven days.  The wife’s counsel has also highlighted that they will be serving a subpoena upon an organisation known as S Pty Ltd.  The wife does not need leave as the defended hearing date is not as yet appointed, but I will incorporate, without objection, in the order that such a subpoena is to be issued by the court.

7. It is already clear that further time will be needed for this matter to be prepared.  The initial application was issued on 20 April 2009 and it is most unlikely that this matter will have a concluded defended trial within two years of that first initiating application date.

8. That is unfortunate, but it is said to be tied up with the discovery and disclosure process upon which I make no further comment at this time.  If it is that the wife elects to join the aged parents of the husband, and if they need interpreters, then that matter must be carefully considered, first by the wife but thereafter by those joined respondents.

9. My requirement on or before 8 October is for all parties, including all joined respondents, to understand the issues in this case, to have initially presented to the court and thereafter to have responded to issues so that the matters for trial are identified and all parties have an understanding of the financial disclosure, trust or other distributions and other matters in conflict.

10. I will make no orders for the filing of affidavits at this time save that together with any further amended application of the wife I will require her to file a short form affidavit summarising her evidence upon which she intends to rely and explaining the reason for the joinder of further respondents.

11. At some point in the near future, all parties will have to update their affidavits of financial circumstances before the court.  I will have those brief ex tempore reasons transcribed and placed upon the court file and made available to the solicitors for the husband and the wife.  This is primarily a form of record of my ongoing orders in trying to have some level of control over the preparation and expedition of this matter for trial.

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: