Moore and Moore (No 2)

[2009] FamCA 1296

FAMILY COURT OF AUSTRALIA

MOORE & MOORE (NO. 2) [2009] FamCA 1296

FAMILY LAW – PROPERTY – procedural

Family Law Act 1975 (Cth)

APPLICANT: Ms Moore

RESPONDENT: Mr Moore

FILE NUMBER: ADF 4732 of 1998

DATE DELIVERED: 8 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 8 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.L. Jordan

SOLICITOR FOR THE APPLICANT: C E Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Heinrich

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw

Orders

1. That this matter be listed for hearing commencing at 10:00am on 29 March 2010 with a time estimate of 4 days.

2. That by 4:00pm on 5 February 2010 the wife file and serve her affidavit of evidence in chief and the affidavit of evidence in chief of Mr M together with a list of the documents that the wife seeks to tender at the hearing.

3. That by 4:00pm on 24 December 2009 the husband provide to the wife through her solicitors a list of documents by way of discovery of all relevant documents in this matter that the husband has in his possession or under his control.

4. That by 4:00pm on 19 March 2010 the husband file and serve all affidavits of evidence in chief on which he intends to rely for the purpose of the hearing together with a list of any documents which he seeks to tender at the hearing.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4732 of 1998

MS MOORE

Applicant

And

MR MOORE

Respondent

EX TEMPORE REASONS

1. This matter is again before me today in an attempt to list it for trial.  There is now a dispute as to how long the trial might take.  Initially there was common ground that it would be three days, but after the husband and his legal advisers have inspected some further documents produced by the wife, their estimate now is up to six days and at least four days. 

2. Dealing with that issue first, it is subject to, and Mr Heinrich has obviously said this, what is in the wife's affidavits that she intends to rely upon and also what documents the wife will be seeking to tender, and there may be the opportunity to have any argument about admissibility of documents before we get to the actual hearing, thus there are ways that I can manage the case so that it can still fit in and be heard and dealt with in a reasonable time frame. As I have said, and I do not need to repeat it but I will, this matter simply has to be listed and I do not propose to let it blow out any further in terms of time.  Everyone has pressures in terms of available time, including this Court, and thus I have to grab every opportunity that I have to list cases.

3. I understand that Mr Jordan's client's preferred senior counsel is available from 29 March 2010 and I understand that at least some of the husband's preferred senior counsel are available at the same time, and that is time that I have available, I have four days available, 29 March 2010 to 1 April 2010, and I propose to work towards that as being the hearing time.  However if things happen that we need more time, then obviously we will deal with that, but as soon as that becomes the case then I need to be told about that so that we can make adjustments. 

4. In terms of other issues, I am told that there have been some further files, solicitor's files, as I understand it, produced by the wife in the last three weeks or so and copies have been requested of documents from those files and that request was made on Friday.  Mr Jordan tells me that that is being attended to at the moment and he expects those copies to be available within the next few days.  I am not being asked to make any order about that, and thus I simply note that that is happening.

5. Separate to that and just turning to the wife for the moment, Mr Jordan says that there has never been a list of documents provided by the husband and he still seeks that that occur.  Mr Heinrich tells me that that can be done before Christmas, and I propose to make an order about that.  Mr Heinrich has added the rider, and an obvious rider, that that may not be the complete and final list because in the course of preparing the case and seeing the other side's affidavits and their list of documents, it may become apparent that other documents that the husband has may be relevant.

6. In terms of witnesses, the wife intends to give evidence herself and there is an affidavit of hers needed. She proposes to call a Mr M and an affidavit is needed for him.  Mr Heinrich has requested, and I agree with this, that there be a staged regime for the filing of affidavits and the like.  On that basis, Mr Jordan wants until the end of the first week of February to file those affidavits together with a list of documents that the wife intends to seek to tender at the hearing.  Mr Heinrich has flagged, subject to what is in that list, that there may be arguments about admissibility and the like and the sooner we know that obviously the better, because I may be able to list the matter on a preliminary basis to deal with that issue, rather than take up time at the hearing.

7. In terms of discovery by the wife, Mr Heinrich has suggested that there still may be further documents that need to be discovered and produced, and specifically in relation to solicitor's files and even more specifically in relation to files maintained by Piper Alderman.  Mr Jordan tells me, and this is noted on the transcript, that there are no further files that his client has, either in her possession or under her control or that can be obtained from any source, that the wife can or needs to discover.  Mr Heinrich has therefore flagged that, following his client's and his inspection of the files that have been produced, there may be a need for subpoenas to be issued to obtain production of other documents that are not in those files, but that is all to come, of course. 

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 8 December 2009.

Associate