Orchard and Orchard

[2007] FamCA 336

FAMILY COURT OF AUSTRALIA

ORCHARD & ORCHARD [2007] FamCA 336

FAMILY LAW - PRACTICE AND PROCEDURE - ADJOURNMENTS - 35th adjournment or court appearance – a further adjournment granted

Family Law Act 1975

APPLICANT: Mrs Orchard

RESPONDENT: Mr Orchard

FILE NUMBER: MLF 2759 of 2003

DATE DELIVERED: 15 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 15 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R P  Hutchins

SOLICITOR FOR THE APPLICANT: John Denton & Associates

COUNSEL FOR THE RESPONDENT: Mr W M Pinner

SOLICITOR FOR THE RESPONDENT: Kelly & Chapman

Orders

1. That the final hearing of this matter in my current list be vacated and my brief reasons for judgment be transcribed and, when transcribed, a copy be sent to each of the parties and any independent children’s lawyer.

2. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child, a son, born in April 2001 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer, noting that the mother seeks to reduce the amount of time that the child currently spends with the father and the father now seeks a shared or equivalent parenting arrangement.

3. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

4. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

5. That the matter be referred to the Court Services Manager to be listed for hearing in either June or August 2007 whichever, depending on the availability of the family report which the parties agree will be obtained prior to the final hearing.

6. That on 1 June 2006 at 11am the parties and their Counsel attend upon Registrar Riddiford for the purpose of completing and updating the balance sheet already commenced by the Registrar and that the balance sheet be made available to the Court at the final hearing. That in the event that the family report is not filed or available to be handed to the Registrar by 11am on 1 June 2006, the matter be listed before me or, subject to the discretion of the presiding trial judge, the trial judge for consideration of whether the final hearing ought, again, be vacated or for directions on how the matter will proceed.

7. That on or before 30 April 2007 the husband file and serve any expert evidence upon which he relies in relation to valuation of his radio collection and the jewellery in the possession of the wife.

8. That on or before 30 April 2007 the wife file and serve any expert evidence upon which she relies in relation to valuation of the husband’s radio collection or the jewellery in her possession.

9. That the husband comply with any reasonable requests by or on behalf of the wife to produce his radio collection for the purpose of valuation, such production to be effected by the husband taking the radio collection to an appropriately qualified expert of the wife’s choosing or by making the radio collection available for inspection by the expert of the wife’s choosing but subject to any further order of this Court, this is not to involve the collection being given into the possession of the wife or, with the sole exception of her valuer, into the possession of the wife’s servants or agents.

10. That the wife comply with any reasonable requests by or on behalf of the husband to produce the jewellery for the purpose of valuation, such production to be effected by the wife taking the jewellery to an appropriately qualified expert of the husband’s choosing or by making the jewellery available for inspection by the expert of the husband’s choosing but subject to further order of this Court, this process not to involve the jewellery being given into the sole possession of the husband or, with the exception of his valuer, into the possession of the husband’s servants or agents.

11. That each party be at liberty to cause subpoenae to issue returnable in any subpoena list between now and the final hearing date.

12. That liberty to the parties to apply to have this matter mention before me by arrangement with my Associate be reserved.

13. That there be orders in terms of the Minutes of Consent Orders signed by the parties and dated 15 March 2007 (“the Minute”).

IT IS DIRECTED:

1. That the Minute be placed upon the Court file and marked “Exhibit A”.

2. That the solicitors for the Applicant Wife do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 24 hours.

3. That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.

BY CONSENT IT IS FURTHER ORDERED:

(17)(a)That the parties do all things required to enable Mr L or such other

Counsellor agreed between the parties for the preparation of a Welfare Report on the family issues in the matter including the time the husband shall spend with the child, a son, born in April 2001 including the question of shared parenting.

(17)(b)The cost of such report be met initially from funds held for the parties by the wife’s solicitor John Denton, reserving the parties’ rights to seek reimbursement of such costs upon the final determination of the matter.

1. That each of the parties swear, file and serve a further Affidavit containing their evidence in respect of parenting issues in this matter no later than 14 April 2007 and a copy of each Affidavit be supplied to the Counsellor preparing the Welfare Report.

2. The Husband within 35 days swear, file and serve an Affidavit deposing to the following matters:-

   (a)detailing all sums including cash sums he alleges the wife has retained from funds lodged by him in his bank accounts or any bank accounts in which he has an interest, and in  particular payments from funds obtained by the husband withdrawing, cashing in or otherwise dealing with interests held by or received by him in:

   (i)repayment of approximately $39,000 from P Company in approximately 1998;

   (ii)the $35,000 approximately from the A Mortgage in August 2002;

   (iii)the rental from the K property;

   (iv)the $32,593 approximately from the T Policy in approximately November 2001;

   (v)the $7,800 from the N Policy;

   (vi)the $21,251 approximately from the ANZ Deferred Annuity in 2002;

   (vii)the $4,589 and $25,000 from the ANZ Superannuation in 2003;

   (viii)the $8,244 from the ANZ Investment Bond in April 2001;

   (b)(i)       annex or otherwise provide the wife with copies of all Bank Statements and other documents evidencing the receipt by the husband of such sums;

   (ii)      secondly, the Cash Statements or other evidence of the wife accessing those sums;

   (c)(i)       detailing all amounts of superannuation benefit or entitlement of the husband during and after the relationship together with details of all withdrawals, transfers or other dealings with such superannuation benefits or entitlements during or after the relationship;

   (ii)      annexing copies of all documents evidencing all entitlements to superannuation and dealings with such entitlements referred to in paragraph 3 (c) (i) together with current valuations of all such entitlements;

   (d)annex to this Affidavit a copy of page 3 of the Bank Statement obtained from Westpac Bank with respect to Account No. …

3. That all extant Applications be adjourned for hearing before Justice Brown on 18 June 2006.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2759 of 2003

Mrs Orchard

Applicant

And

Mr Orchard

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me by way of mention.  Counsel for the parties want it to be taken out of my list and re-listed at a date in the future.  These are the reasons why have reluctantly agreed to that course.

2. My reluctance is based on the fact that this is about the 35^th court appearance for the parties, excluding any court appearances that have been vacated.  The proceedings were instituted in 2003.  They have been before a number of Judges and Registrars for various matters including a listing because of the default by one or either of the parties with the filing of documents on 20 May 2005, 2 June 2006 and 4 August 2006.  The matter has been through the hands of a number of judicial officers. 

3. I am told by counsel for the parties or by court services or a combination of both that the matter should not be listed before Watt, Young and Mushin JJ, although I have myself been unable to locate any orders on the court file by them saying that they are disqualified. 

4. This is a huge file with every indication of being out of control and requiring firm management and, as far as possible, consistency of Judge.

5. Today, Mr Pinner appears for the husband who has attended court, Mr Hutchins appears for the wife who hasn't attended today. 

6. The matter was to be listed before me for final hearing, estimated to take something like five days.  I have completed my other defended work and was available to determine the matter commencing this morning.  Yesterday, when the matter was mentioned to me on the initiative of counsel for the parties, it was apparent that each had identified an impediment to the matter not proceeding to a final hearing. 

7. First of all, in relation to the parties’ child, a son, who is six years old.  At the callover of this matter some weeks ago, I was assured that parenting matters were not an issue for the hearing.  Now, the wife seeks to restrict the time that the child spends with his father by reducing the time to one out of three weekends.  The father says that he wants a shared care arrangement or equivalent time, although he has not at this point formalised that in an application or a response.  Neither have applications to that effect but have instructed their counsel to seek to amend their application/response to seek those orders. 

8. The parties seek the appointment of an independent children's lawyer.  This is a case where I have concerns about the ability of either party to run their own case to conclusion let alone could I reasonably place reliance on their ability to represent the interests of their son.  An independent children’s lawyer is appropriate and I have made the necessary request. 

9. The parties also seek a family report, and that is said to be able to be prepared by Mr L for a hearing in June.  However, since yesterday neither have been able to contact Mr L to confirm that is the case.  They will pay for the report themselves. 

10. The second reason for the adjournment is that it is conceded that the husband has not provided financial information that he should have provided.  That may not have been an impediment to the matter proceeding because the court has within the proper exercise of its discretion the ability to proceed with matters without being unduly cautious in relation to those who choose not to provide information that they have to provide.  However, in this case the wife says that she does want details of a superannuation interest which is thought to be in excess of $100,000.  The size of the asset pool is not so great that this is not a very significant part of the asset pool. 

11. In case the hearing in June 2007 cannot be before me, I am not prepared to adjourn it off without knowing that the matter will be ready to proceed and

    
    

    I am not simply grooming it for the 36^th adjournment.  

12. Counsel for the parties have to tell my Associate by this afternoon what firm arrangements there are for a family report to be prepared.  Failing that, the matter will be listed in August instead of in June.  The matter should be listed as a primary matter, come what may.  I have also directed that Registrar Riddiford, who has worked with the parties extensively over the last fortnight, update a single balance sheet that he has already completed or compiled with some particularly.  I hope that results in a balance sheet and the list of issues being shorter than it is now, not longer. 

13. I have reserved liberty to the parties to mention the matter to me in the event that they want to between now and the final hearing.  The purpose of that is so that the matter is as ready as it can be to proceed to final hearing on the adjourned date - no matter what the state of the information may be said to be.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  23 April 2007

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