Lumley and Gartside

[2010] FamCA 219

FAMILY COURT OF AUSTRALIA

LUMLEY & GARTSIDE [2010] FamCA 219

FAMILY LAW – CASE MANAGEMENT AND INTERIM ORDERS – Filing of further affidavits – Financial assets in dispute – Evidence of valuation – Production of documents

APPLICANT: MS LUMLEY

RESPONDENT: MR GARTSIDE

FILE NUMBER: MLC 1041 of 2007

DATE DELIVERED: 17 MARCH 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brown SC with him Mr Dickson

SOLICITOR FOR THE APPLICANT: Susan Snyder

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: McSwineys

Orders

IT IS ORDERED:

1. THAT all extant applications be listed to a defended hearing commencing Monday 6 September 2010 for five (5) days.

2. THAT the matter be listed for mention and further case management before Young J on 28 July 2010 at 10.00 a.m.

3. THAT leave be granted to the solicitor for the husband to forthwith file the affidavit of Dr F.

4. THAT within 21 days of the date hereof the husband personally or his solicitors use their best endeavours to obtain from Dr F his medical files and records of and related to J and E Gartside and cause them to be produced to the Registrar of the Family Court for safe keeping and there to be available for inspection and copying by the legal practitioners in these proceedings.

5. THAT leave be granted to the solicitor for the wife to file the affidavit of Mr R, within fourteen (14) days of this date.

6. THAT if required by the solicitors for the husband the wife make herself available for an independent neurological examination, by a duly qualified and agreed medical expert, at a suitable date and venue and that such report be obtained at the expense of the husband and be filed with the Court and served upon the wife’s solicitors as soon as practicable, but prior to 23 July 2010.

7. THAT the contents and machinery and other personal chattels are to be forthwith identified by the parties and their whereabouts to be disclosed and any dealings with them fully documented and they are to be valued for these proceedings on or before 16 July 2010.

8. THAT the books of record of both the husband’s father and his son are to be made available (the originals thereof) for forensic analysis by a handwriting expert to be jointly appointed by the solicitors for the parties, and at their joint expense subject to any further order of the Court, and the level of analysis required be determined by the wife’s legal practitioners and the experts report arising therefrom be filed with the Court by affidavit on or before 16 July 2010.

9. THAT all public shares owned by or on behalf of the parties or their entities are to be valued as at 20 August 2010.

10. THAT the real property at B and G is to be the subject of discussion between solicitors (on instructions from their clients) as to any updated valuation required (for one or both of them) and if so required then such valuation exercise is to be undertaken as at 30 June 2010 and appropriate valuations filed with the Court and provided to both parties on a joint expense basis or otherwise as may hereafter be ordered by the Court.

11. THAT the husband and wife are each to make, file and serve an updated and detailed financial statement by 27 August 2010.

12. THAT the updated summary of argument and consolidated statement of assets and liabilities are likewise to be filed and served by 27 August 2010.

13. THAT the superannuation entitlements of the parties are all to be valued and updated as at 31 July 2010.

14. THAT if the wife’s father is unable to travel to Australia then his evidence be given by telephone at a date and time convenient to the Court and he be provided in advance with true copies of any document upon which he may be questioned.

15. THAT save as otherwise provided in these orders any and all further affidavits to be relied upon by the parties are to be filed and served by 31 May 2010.

16. THAT the costs of the husband of this day be fixed in the sum of $5,050 plus GST and the costs of the wife be fixed in the sum of $9,900 plus GST and the payment of those costs, or either of them be reserved as a specific issue in the trial.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel and Counsel for the wife and Counsel for the husband of this day.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1041 of 2007

MS LUMLEY

Applicant

And

MR GARTSIDE

Respondent

REASONS FOR JUDGMENT

1. The matter of Gartside & Lumley was listed before me for a three-day defended hearing commencing this day. Mr Brown, senior counsel, and Mr Dickson appeared for the wife. Mr Thompson of counsel appeared for the husband. Both parties are in court, together with members of their respective family. I had this matter listed yesterday for preliminary mention and to receive the consolidated statement of assets and liabilities and the summary of argument from both parties. It then became clear that there were several ongoing evidentiary matters and further disputes about the available pool of assets for division, pursuant to section 79 of the Family Law Act.  I have asked counsel to consider aspects of the evidence and of the pool of assets overnight, and matters have further developed this morning.

2. This matter was listed for a three-day hearing, and that was the indication both given to Registrar Sikiotis, and more particularly given to me on 9 September last year.  That matter is recorded in notation (b) to the orders of that day.  Yesterday there was a level of concern as to the true estimate of time, and Mr Thompson, on behalf of his client, was not able to remain within that three-day estimate, and Mr Brown did exercise some concern, given that the husband was required for cross-examination for up to one day and there was to be other cross-examination of both the wife and other witnesses in the case.

3. I was also provided yesterday with a draft statement of assets and liabilities which indicated a considerable difference on certain assets, and, more particularly, identified matters the subject of argument on an add-back basis, and that included substantial moneys alleged to have been had taken or withdrawn or otherwise used by or on behalf of the husband post-separation.  All of those matters were and are in dispute, and I make no comment or finding thereupon at this stage of the proceedings.

4. The issue of the health of the wife, and/or the husband’s ability to work and his health, and particularly the health of the husband’s parents, were and even more so now are matters in issue.  Mr Brown has recorded that his client has obtained an affidavit from her neurosurgeon, Mr R.  That document was not filed, but if the proceedings are now to be withdrawn, it will be filed within 14 days.  That may lead to a request for the wife to undergo an independent neurological examination by a duly qualified expert appointed by or on behalf of the husband, and at his expense.  I will leave open that course of action, but if it is to occur, then any such examination and report must be available by 30 June of this year.  Therefore, the appointment for any independent expert must be made as a matter of urgency.

5. I was provided with an affidavit of Dr F at court this day.  Dr F is a general practitioner from the B Medical Clinic and has been the treating general practitioner for the husband’s parents for the past eight years.  He has sworn an affidavit, both from his patient files and records and from his personal recollection, as to the husband’s father, and on other issues as to the husband’s mother.  Leave was sought for that affidavit to be filed.  I have had preliminary submissions from counsel for both parties on that document, and as I have independently determined that this matter is going to be adjourned to 2 August of this year, I will allow that affidavit to be filed this day.  As a consequence of that determination, the medical files and records of the B Medical Clinic, and of Dr F, of and related to J and E Gartside must forthwith be available to the solicitor for the wife for full and proper inspection.

   RECORDED   :   NOT TRANSCRIBED

6. Aside from those medical issues relating to further affidavit, it has also been raised in discussion with counsel this day that there are two books, both of which have been held aloft and shown to the court.  Their contents have been discovered, and photocopies have been provided to the wife’s solicitor.  One of the books is said to be written by the husband’s father;  the other by the son of the husband.  They are both required for forensic examination as it is now understood that they are, or will be, sought to be tendered in the proceedings, in whole or in part.  Again, I make no ruling whatsoever on that aspect of the case, and their ability to be tendered and form part of the evidence will depend upon the accompanying submissions and determination during the hearing.  What I clearly provide for, however, is that any forensic analysis is to happen forthwith by an independent and duly qualified single expert witness to be appointed by the solicitors at their joint cost, or otherwise as the court may order as to costs.  The result of that forensic examination is to be available to the court by no later than 23 July of this year, and preferably at a much earlier date. 

7. There are a number of other assets that remain in dispute.  The wife has alleged contents and machinery to a value of $140,000.  Through her counsel, she has said that these items were all removed by the husband from the property at G.  That is seemingly a matter of conflict.  The wife’s solicitors are to provide that list of chattels.  They are then to be identified by the husband, their source revealed, and/or any other action or dealing by or on behalf of the husband with them revealed.  They are then to be valued.

8. There are substantial shares in public companies held in various accounts by and on behalf of the parties.  They are all to be valued as at 23 July, at close of business that day.  There are substantial superannuation entitlements of the parties, either through their employer or through K fund.  The valuation of all such superannuation entitlements are to be calculated as at 16 July of this year and be communicated to the other solicitors forthwith thereafter.  If it is to be that any other affidavit is to be filed on issues of and relating to the agreement dated 2 June 2006, and in particular by any witness to that document, then any such affidavit is to be filed and served within 21 days of this day. 

9. The properties in this case are of considerable value.  There is a property in B and the country property at G.  There is currently an agreed value.  If that remains acceptable to both parties then the court will proceed on that basis.  If there is any update of either property, or both properties, to be obtained, that updated valuation date is to be as at 30 June 2010, and that is a matter for further discussion between solicitors, but I will not accept any submission hereafter as to procedural aspects of those property valuations.  They are either to be updated as at 30 June or otherwise taken as is currently the valuation of each of them.

10. If there is any other affidavit by any other person who is to be a witness in the proceedings then those affidavits are to be filed and served within 28 days of the date hereof.  In the course of the mention yesterday, the wife’s counsel indicated reliance upon evidence of her father, who is now resident in England and 87 years of age.  Given his age, I will have a level of co-operation with his giving of evidence and will not require him personally to be in Australia.  Clearly it would be preferable if he was here and was able to give evidence such as is required and be cross-examined, but I will facilitate, within court hours, his attendance by telephone, provided that any document which he may be asked to sight is provided to him well in advance and is in his possession and all steps are taken to ensure that cross-examination can proceed in an efficient manner.

11. I will require both parties to file an updated statement of financial circumstances as at 23 July.  That will ensure that the evidence of income and assets owned or controlled by either of them is in updated form before the court.  Otherwise, I am satisfied that this matter would not conclude within that part of the remaining three days allocated by adjourning the matter before me to 2 August I currently have the five days of that week.  I expect this matter to be a four-day matter only, but by listing it on the Monday I will preserve the option of that fifth day and the matter will be listed accordingly. 

12. I will take the precaution of listing this matter for mention before me so I am wholly satisfied that every aspect of the case is fully prepared, and that mention will be on 28 July at 10 am at which time all updated affidavits, financial statements, and summary of argument and updated balance sheet will have been filed with the court.  If they are not filed, the onus is on either solicitors or legal counsel, but I will not let the matter proceed unless matters are filed on that day and signed off by all counsel.  I will have these brief ex-tempore reasons transcribed and placed upon the court file and made available to solicitors so that my further directions and orders of this day are crystal clear and beyond argument, and there will be no more excuses, and the parties will each understand that this is their last opportunity to have this matter heard in my list, and certainly this year.

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: