Pillai and Doshi (No 6)

[2010] FamCA 1068

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO. 6) [2010] FamCA 1068

FAMILY LAW – PROPERTY – Interim – Release of part deposit monies to husband – Case management for defended hearing

APPLICANT: MR PILLAI

RESPONDENT: MS DOSHI

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 664 of 2007

DATE DELIVERED: 19 NOVEMBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 NOVEMBER 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 LAWYERS

Orders

IT IS ORDERED:

1. THAT the defended hearing of this matter be confirmed for Monday 20 December 2010 at 10.00 a.m.

2. THAT the Family Court book and provide an interpreter fluent in the Hindi language, and to be available at Court from 1.45 p.m. on Tuesday 21 December 2010.

3. THAT the husband’s parents, or one of them if required, be interposed as witnesses in the proceedings at 2.15 p.m. on Tuesday 21 December 2010 and with the availability of the interpreter.

4. THAT leave be granted to all parties to issue further subpoenas for the production of documents or for witnesses to attend and give evidence in the proceedings but all such subpoenas must be issued by 6 December 2010.

5. THAT the solicitors for the wife, or the wife, forthwith request and organise … Conveyancers to provide to the husband at his current residential address true and complete copies of all sale notes, contracts, transfers and documents of and incidental to the sale and settlement of the sale of W property.

6. THAT the wife forthwith sign all documents and do all acts and things necessary to request and obtain a release from the deposit monies paid upon the purchase of W property a sum of $5,000 to be paid immediately as a partial settlement of property to the husband and into his Westpac Bank Account – BSB – ….

7. THAT the balance of the deposit monies are to be held in trust pending the final hearing of the s 79 proceedings.

8. THAT on or before 6 December 2010 the wife obtain at her cost and supply to the husband true and complete copies of all of her ANZ Bank statements and her records and dealings with that bank for the period February / December (inclusive) 2007.

9. THAT on or before Tuesday 14 December 2010 all parties make, file and serve upon the other the following:

   (a)       a short chronology of relevant facts;

   (b)      a list of all affidavits which they intend to rely upon in the hearing;

   (c)a precise and updated statement of orders sought if they in any way differ from the recently filed amended application and amended response;

   (d)a letter in compliance with Family Law Rule 19.04 as to costs (the Independent Children’s Lawyer is excused from compliance with this requirement);

   (e)a single page balance sheet of all assets and liabilities (the Independent Children’s Lawyer is excused from compliance with this requirement).

10. THAT prior to hearing if any party intends to rely upon a particular document or witness statement relevant to the children then they must supply all parties and the Family Consultant with a copy of such document.

11. THAT insofar as documents are subpoenaed to Court pursuant to these Orders leave is granted to the solicitors or Counsel for the parties or to the husband personally to inspect such documents within the court building.

12. THAT a sealed copy of these orders be served by the Independent Children’s Lawyer upon the Family Consultant Mr U.

13. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED:

A.THAT Counsel are advised that if the matter has to be extended beyond the current hearing period then the matter will resume on 4 January 2011 at 10.00 a.m. on a part-heard basis.

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

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Pillai & Doshi is listed before me for a defended hearing commencing 20 December 2010.  Ms McCreadie of Counsel appears for the wife, Mr Tesoriero is appearing for the Independent Children’s Lawyer, and the husband appears in person.  This matter has been before me on a number of occasions, and I do not traverse any of the previous orders or findings, and these reasons are delivered to have on record the arrangements for the defended hearing.

2. The former matrimonial home at W has been sold.  The sale price was $379,000.  Evidently it sold after an unsuccessful auction.  Settlement date is 17 December 2010.  The property is in the sole name of the wife, and therefore she alone signs the contract and all documents of and related to the sale.  A conveyancing services firm has been engaged to complete the property transactions.

3. As best I can ascertain the husband has yet not received copy of the contract or any documents of and incidental to the sale.  That is understandable as his name is not on title, but I require him immediately to be provided with all documents of, and related to, the sale and to be kept up-to-date on a regular basis.  That is important as he is the occupant of the home and will be required to vacate the home and provide vacant possession under the contract.

4. All proper courtesies must be shown the husband in relation to his occupation and requirement to remove himself from the home, together with all furniture chattels, and his obligation is to leave the home in a clean and tidy state so that there are no costs or other issues with the purchaser.

5. The husband has advised the Court today that he has insufficient monies to locate other accommodation.  I am told that a five per cent deposit was paid, that is, approximately $19,000.  The wife has advised the Court she has signed no documents to release any part of the deposit to the estate agent.  What I require the wife to do is to forthwith execute appropriate authorities to facilitate from the deposit a sum of $5,000 to be paid to the husband’s Westpac Bank account in his name.  Those monies will be a partial property settlement and will be balanced in the appropriate just division of property in the forthcoming trial.

6. The husband must provide updated superannuation information, including its current balance, and notice must be given if there is to be a superannuation split sought by the wife.  At trial, the settlement statement of the sale of the home and the actual payment of all of the Westpac mortgage debt and any costs, arrears, penalties, or interest thereon must easily be able to be ascertained.

7. The conveyancing file and settlement statement and all related financial statements and bank documents must be before the Court, and that obligation is squarely upon the wife and her solicitors as she is the sole owner of this jointly occupied matrimonial home.

8. I have ascertained from the wife’s Counsel that her primary documents to be relied upon in the hearing are the amended response filed 5 November 2010; the wife’s affidavit filed that day, which is inclusive of all issues before the Court save to be updated upon the settlement of the home matters; a financial statement of the same day; and an affidavit of Ms B.  There may be one other short affidavit to be filed which has been foreshadowed to the Court, but where there is some issue with the preparedness of that person to stand by allegations previously made.  If that affidavit is important and available then leave can be sought at the hearing for it to be filed.

9. On behalf of the Independent Children’s Lawyer, Mr Tesoriero has identified that he will rely upon the Family Consultant, Mr N, who has been given notice of the date of hearing.  There is a requirement from the husband for Dr D to be called, and the wife does not seek to cross-examine that witness.  If necessary, and in the discretion of the Independent Children’s Lawyer, that witness can be called.  I am also advised by Mr Tesoriero that subpoenas will issue for updated production of documents to the Department of Human Services and to a school.

10. After some discussion, it does seem that there is no police tape as to a record of interview undertaken with the children.  It is said by Counsel for the wife that there is a transcript.  Those matters need be investigated, but it would not seem either required or appropriate for police to be present and to be cross-examined on an interview, but I balance those matters cautiously, and a caveat remains that if in the best interests of children, then that could or should be done.

11. Generally, the issue of subpoenas have been raised before me and all parties have sought some indulgence to issue further subpoenas.  If so, I do give leave for subpoenas of and relevant to evidence in the proceedings to be issued by each of the parties, provided they are filed with the Court on or before 6 December and must be appropriately served personally and with conduct money. 

12. The husband has filed an amended application with his various orders on 1 November 2010.  In support of that document an affidavit was filed by him on the same day, and that affidavit is said to be furtherance to his earlier affidavit of 13 September 2010.  I have both documents; there is no leave for the husband to file any other document, but I will read and have reference to each of those two affidavits in the trial.  The financial statement of the husband is filed 12 August 2010, and that is sufficient.  He has filed an updated affidavit as required by me, pursuant to a previous order, of Ms I.  That affidavit is before the Court, as are the earlier affidavits of several of his witnesses.

13. An interpreter is required for his parents.  That interpreter must be a Hindu-speaking interpreter.  I will fix the time at which the husband’s witnesses are to be interposed at 2.15 p.m. on the second day of hearing, that is, Tuesday 21, and the interpreter need only be booked to be at Court for that half day from 1.45 p.m. 

14. I will hereafter make further practice directions as to documents, list of witnesses, chronology, and compliance with Rule 19.04 of the Family Law Rules. 

15. This matter has three, and potentially four days for hearing and judgment.  It must be contained within that period.  I have advised Counsel and the husband that if, for any reason whatsoever, there is any extension of the case, it will resume on 4 January 2011.  That is the only available date that is open.

16. I urge the parties to have some level of discussion on all issues, though I have an understanding that might be met with some reluctance.  The husband has requested, and the wife must produce by 6 December all of her ANZ bank statements or other dealings with the ANZ Bank for the period February-December (inclusive) in the 2007 year.  That is said no matter what reasonable cost the wife may incur to obtain such documents, which she should have kept, in any event, as they are well within the required period of the Australian Taxation Office to hold documents.

17. Prior to the forthcoming hearing the husband must file a new Notice of Address for Service, and that document is provided to him now in blank form so he can complete same. 

18. Again, I emphasise there is a home sale contract, it is validly signed by the wife and the price is in accordance with the order of the Court.  I have given the husband an advance of deposit of $5,000.  His obligation is to find somewhere to move to move prior to 17 December 2010 and leave the sold home in a good condition for the purchaser.  Any financial implications that arise from any breach of that requirement can be outlined in Court before me, and I will deal with them.

19. I will have these reasons transcribed, placed upon the Court file, and forwarded to all parties as soon as practicable.  I will now pronounce the orders of this day.

I certify that the preceding ninteen
(19)  paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 19 November 2010

Associate: ……………………………………………………………

Date:  …………………………………………………………………