Pillai and Doshi (No.5)

[2010] FamCA 913

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO.5) [2010] FamCA 913

FAMILY LAW – PRACTICE AND PROCEDURE – Property and children’s issues – Case management for the defended hearing – Reserve price set for auction

APPLICANT: MR PILLAI

RESPONDENT: MS DOSHI

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 664 of 2007

DATE DELIVERED: 1 OCTOBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 1 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MS McCREADIE

SOLICITOR FOR THE RESPONDENT: PERRY WESTON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR TESORIERO

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TOWNSEND WYLDE

Orders

IT IS ORDERED:

1. THAT all parenting and children’s applications and property and financial matters be consolidated for a defended trial commencing 20 December 2010.

2. THAT the reserve auction price for the home at W be set at $379,000.00 for the purposes of the auction to be conducted in October 2010, or any subsequent sale (“the sale”) and all previous Orders be varied to provide for that reserve price.

3. THAT the husband and wife are to have the joint conduct of the sale save that the wife is not to be physically present within the house on the auction date but is to communicate and receive all instructions to and from the selling agent or auctioneer by telephone.

4. THE husband and wife may specifically agree to sell their home for a price less than the $379,000.00 reserve price, but only by informed agreement communicated to the auctioneer or real estate agent at the time of any proposed sale.

5. THAT the husband be permitted to make, file and serve a further trial affidavit on updated property and financial issues by 29 October 2010.

6. THAT the filing date for the wife’s documents as identified in paragraph 4 of the Orders dated 12 August 2010 be extended to 5 November 2010 and additionally the wife file an updated statement of financial circumstances.

7. THAT within 14 days the husband is to make full and proper financial disclosure to the solicitors for the wife and in particular provide true copies of documents identified in paragraph 3, subparagraphs (a) – (j) thereof of the wife’s interim application now before the Court.

8. THAT otherwise the wife’s Application in a Case filed 29 September 2010 be dismissed.

9. THAT paragraph 25 and paragraphs 29 – 33 (inclusive) of the final orders sought by the husband in his Amended Initiating Application filed 13 September 2010 be dismissed.

10. THAT the interim and procedural orders sought by the husband in paragraphs 1 – 9 (inclusive) of that Amended Initiating Application filed 13 September 2010 be dismissed save that the husband be at liberty to file affidavit material that is relevant and meaningful in support of order 3 sought therein and those matters may properly be raised at the trial of the parenting and children’s issues, if appropriate.

11. THAT the husband have leave to amend and correct the affidavit of his mother filed 13 September 2010.

12. THAT the ex tempore reasons for judgment be transcribed, placed upon the Court file and made available to all parties.

13. THAT a case mention of this matter, and all procedural issues therein, be listed before Young J at 9:30 a.m. on Friday 19 November 2010.

IT IS CERTIFIED:

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife and a solicitor appearing as Counsel for the Independent Children’s Lawyer.

IT IS NOTED:

A.THE husband has raised an issue as to Annexure “SD-10” to the wife’s affidavit filed 23 September 2010 and the evidence therein must be before the Court in proper form, or that person give evidence or otherwise provide a signed and admitted statement and those matters have been highlighted to counsel for the wife.

B.THE husband was again reminded of the requirement that he undergo the previously ordered psychiatric examination but, again, he raised the issue of the financial cost thereof.

C.THE necessity to have all professional and other witnesses available to give evidence in the trial commencing 20 December 2010 was highlighted to legal practitioners.

D.THAT on the adjourned case management date the wife have available to the Court a list of her witnesses and it has been suggested to her that she respond to the husband’s request and call Ms L and Ms G (case worker).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 664 of 2007

MR PILLAI

Applicant

And

MS DOSHI

Respondent

REASONS FOR JUDGMENT

1. The matter of Pillai & Doshi is again listed before me on various interim applications and by way of case management issues to prepare the matter for a defended hearing, listed on 20 December of this year.

2. Ms McCreadie of counsel appears for the wife, who is at Court.  The husband appears in person.

3. Mr Tesoriero, solicitor, appears on behalf of his colleague, who is the appointed Independent Children’s Lawyer.

4. I have before me interim applications filed by both the wife and of the husband. 

5. I deal first with the wife’s application in a case filed 29 September 2010.  That application is supported by an affidavit of a licensed real estate agent, Ms O.

6. I have read that affidavit and also the further affidavit of the wife filed that same day, and the voluminous exhibits annexed thereto.  That affidavit will not form part of the defended hearing and the affidavits to be read and, hereafter, I will extend the previously ordered timeframe for the wife to file her documents in the defended proceeding.

7. Returning to that interim application the wife seeks an order to vary the reserve price at auction of the former matrimonial home.  Currently, it is $390,000.  The wife wants that reserve price to be fixed at $365,000 or otherwise, in accordance with the recommendations of the managing real estate agent.

8. The husband opposes that application.

9. I am aware of the history of the prior auction and the various alleged offers to purchase, that have been insufficient.  The husband has addressed me on his concerns.

10. What is of fundamental importance to the parties is that the property sells at auction in October of this year, and sells for a fair and just price. 

11. On the balance of evidence and submissions before me, I am going to vary the reserve price and fix it at $379,000.

12. As to the conduct of sale the wife elects not to be present at the auction day.  The wife can be present by telephone and there must be an arrangement with the agent that she has a direct line of communication.

13. I specifically reserve to the parties by agreement on the day, to sell the property at a lower price than $379,000, but only if they both agree and it is recommended by the appointed auctioneer.  Clearly, common sense dictates that, if the best price available at auction is $378,000 or thereabouts, then the property should sell and the husband must show common sense and judgment in that regard.

14. That reserve price must be confidential and the estate agent and parties must not leak that information to any potential purchaser.

15. I have asked questions as to the current state of preparation and cleanliness of the home and the husband’s cooperation with the real estate agent, and it seems as if he is both well behaved and acting in the interests of the best price.  That is encouraging news.  It is, of course, a matter of fundamental importance that the house be neatly presented on auction day and also, of course, at all prior inspections.

16. By paragraph 3 of the interim application, the wife seeks disclosure of further documentation from the husband. All of those matters identified in subparagraphs (a) - (j) are seemingly relevant to financial issues before the Court.

17. The husband has told the Court that, previously, he has made some level of financial disclosure and, at my direction today, he handed across the bar table a blue folder containing what he said to be was further relevant financial documents.  They are currently being inspected by counsel for the wife.

18. What I intend is that documents that are relevant there can be copied today at the expense of the wife and then returned to the husband.  Other documents that are not discovered or disclosed now by the husband, within the parameter of paragraph 3 of that interim application, must be provided to the wife’s solicitors within 14 days.

    RECORDED   :   NOT TRANSCRIBED

19. The other document before the Court is the amended initiating application of the husband, filed 13 September of this year, and that document was made returnable this day. 

20. In that document, the husband seeks final orders in paragraphs 1 - 33 inclusive.  I intend here to deal with paragraphs 25 and 29 ‑ 33 inclusive.  Otherwise, I will separately deal with the interim orders sought in paragraphs 1 - 9 thereof, under the heading of Interim and Procedural Orders.

21. Paragraph 25 will be discharged. 

22. I will not agree to any discharge of the appointment of the Independent Children’s Lawyer, on the basis of matters contained within the husband’s affidavit, or of his submissions today.

23. I take this opportunity to highlight that the husband filed a substantial affidavit and evidence-in-chief on 13 September, together with affidavits of his parents.  I have read those documents.

24. There is a significant error in the affidavit of his mother, which has been pointed out to him this day.  Through a typographical error, the mother’s name is not endorsed on the affidavit.  That must be corrected.

25. It has also been pointed out that there is no interpreter’s clause to the affidavit and both of the husband’s parents require an interpreter in the Hindi language.  The Court must provide that interpreter.  The husband has explained that his parents can read the English language, but not speak the language of such sufficiency for the purposes of a Court hearing.

26. Those documents need to be prepared in a better form, and the husband has appropriate leave to file that further affidavit of his mother.

27. Likewise, and whilst I deal with affidavits, and on the basis that I will extend the wife’s filing date for all of her Court material, I will allow the husband to file one further affidavit after the auction date and if the home sells, as to property and financial matters of and incidental to the sale of the home and other relevant matters and, if so, the husband must file that affidavit by 29 October.  Again, I stress that it must be relevant and meaningful in the context of the defended issues before the Court.

28. Returning to the orders of the husband I will not make the order detailed in paragraph 30.  There is already an order that I have made whereby the children are placed on the airport watch list and that order, of 8 June of this year, is continuing.

29. Likewise, paragraph 31 is, therefore, unnecessary.

30. As to paragraph 32 and the request for the wife to undergo a further forensic psychiatric assessment by a qualified independent psychiatrist, I will not make that order.  There has already been an assessment of the mental health of the wife.  I will not have that updated.  I will not have the wife or the Court incur any additional expense.  That order is unnecessary, and is not appropriately supported by the evidence of the husband before the Court this day.

31. In summary then and for clarity, paragraph 25 of the husband’s final orders sought, and paragraphs 29 - 33 inclusive, will be dismissed.

32. I turn now to the interim and procedural orders sought by the husband.

33. Paragraph 1 will be, before the Court on the defended hearing.  It is not an appropriate interim order and I will make no order under that paragraph this day.

34. Paragraph 2 is currently in the form of a Court order arising from the proceedings on 20 April 2009.  Whilst the wording is slightly different that the husband now seeks, the reality and practical circumstances are not different and the current order can continue.

35. Paragraph 3, where a restraining order is sought against the wife from engaging in or involving the children in black magic and other spells, incantations, potions or symbolic placement of items, is not supported by any evidence of the husband in his affidavit.  He has simply forgotten, or ignored the evidence. 

36. If there are genuine matters of concern, upon which the Court now makes no judgment, those matters can be detailed by the husband in that further affidavit that I have said he can file on property matters.  The evidence must be respectful, meaningful and limited to the issues in this paragraph 3.  On the evidence before me, I will dismiss that interim application now sought, but as it may go directly to the welfare and best interests of the children, it is not a matter that I would exclude from the final hearing, if the husband has any genuine evidence.

37. Paragraph 4 seeks a further restraining order, but I am comfortable with the current orders of 30 April of 2009, and both parties understand that they are not to influence the children against the other party.  That order is unnecessary.

38. Paragraph 5 is, perhaps, on an interim basis, the most significant of these orders.  This religious and cultural event with the celebration of Deepawali is of significance to both the husband and wife.  There is, however, a current order which is recorded in paragraph 6.9 of the typed version of the orders of 20 April 2009 (as distinct from the handwritten version of those orders annexed to the husband’s affidavit).  The wife is to have this religious festival this year, notwithstanding that the husband did not have, or declined to have, that festival last year when he was so permitted by Court order.  I will not change the current order and the children will remain with the wife this November 5.

39. The complaint of the husband, as highlighted in paragraph 6 of his interim order, is that the wife and the Independent Children’s Lawyer does not, in any way become involved with, or seeks to enforce, previous orders for the discovery of information from schools or medical practitioners to the husband.  I do not recite the whole of the previous orders of 20 April 2009 in this regard, but those orders remain current.  I emphasise to the wife that she has an obligation to forward to the husband and keep him advised of any health, education or related matter that touches upon the welfare and best interests of both children.  No doubt, she will be called to account at the defended hearing for her compliance with these orders.  I expect her to pass on relevant information.

40. Paragraph 7 of the husband’s interim order is, in many ways, a repeat of paragraph 25 of his final orders sought.  I will not discharge the Independent Children’s Lawyer.  To the extent that they have adequately or properly performed their role and represented the interest of the children is, and can be, a matter raised in the defended hearing.  It, perhaps, is a matter that would validate cross-examination, but I make no direction or finding on that issue at this time. 

41. Again, I carefully make no comment upon, but I observe the husband challenges, the impartiality and objectivity of the appointed Independent Children’s Lawyer, and if that remains an issue, it may have to stand the issues of proof in the trial.  I take this opportunity, however, to emphasise to the husband that the primary issue in the trial is the welfare and best interests of the children, and not the alleged conduct or behaviour of the Independent Children’s Lawyer.

42. As to paragraph 8 of the interim orders, I will make no such order today.  The first matter I raised with the husband is whether the child support agency had been served with any documents and, clearly, they have not and they have no notice of this hearing.  I will dismiss that application.

43. The order sought in paragraph 9 is meaningless and will be dismissed.

44. I have taken this opportunity to highlight my concerns to all legal practitioners at the bar table and the husband, that this matter must be ready for trial on 20 December.  I will have a case mention of the matter on 19 November at 9.30 am.  I do so reluctantly, but I must have an update of the option, the financial preparation of the matter for trial and of all children’s interests. 

45. What I intend to do is to consolidate the children and property matters.  I do not want two separate trials in this matter.  It is, however, crucial that the outcome of the auction be known and that the property be sold so that the Court can have knowledge of the equity and thus, the ability to distribute the money between the husband and wife in a just and equitable manner pursuant to section 79 of the Act.

46. It is important that the family consultant, Mr U, be available for the trial and that responsibility lies upon the Independent Children’s Lawyer and I require an update on 19 November of that fact.

47. If any other professional witnesses are to give evidence they must be available in that week commencing 20 December.  It is an awkward time of year and, thus, I emphasise to the wife’s solicitors the obligation to lock in some suitable time for the giving of evidence by any professional witness early in that week, and preferably on the Tuesday. 

48. I will extend a timetable for the wife to file documents to 5 November, and that includes a meaningful and accurate statement of financial circumstances.  The wife’s affidavit should include her response to the affidavit of the husband now filed, or any further affidavit, to be filed by 29 October.

49. I take this opportunity to emphasise that, in the defended hearing, I will not read the many, many affidavits and voluminous documents earlier filed.  I will read only the trial affidavits of the parties, the appropriate witness affidavits, including professional witnesses and, of course, the family consultant’s report.  The trial will not be conducted on the basis of a re-examination of events or issues long ago highlighted in earlier affidavits.

50. I will have these brief extempore reasons transcribed, placed upon the Court file and made available to all parties.

    RECORDED   :   NOT TRANSCRIBED

51. I will make the order for disclosure and I will, again, repeat in the presence of the husband, so he understands that he must search for, locate and be in touch with your solicitor to provide the other documents, and you may explain to the husband, out of Court, what they are and, presumably, this is done on the basis that your client has made available financial documents of such importance to the husband so he can understand her financial position.

52. For clarity, I say to both the husband and wife that they are each entitled to know the income, the financial circumstances, including the liabilities and financial responsibilities and superannuation, of the other, going in to trial.  What must happen is that documents are disclosed both ways forthwith, because I do not want it to impact on the trial.  If so, it might have a significant and adverse cost impact on one or the other.

53. Those comments can also be included within the transcript.

I certify that the preceding fifty-three
(53) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 1 October 2010.

Associate: ……………………………………………………………

Date:  …………………………………………………………………