Podopoulos and Albertinni

[2009] FamCA 406

FAMILY COURT OF AUSTRALIA

PODOPOULOS & ALBERTINNI [2009] FamCA 406

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: Mr Podopoulos

RESPONDENT: Ms Albertinni

FILE NUMBER: ADC 380 of 2007

DATE DELIVERED: 25 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Mr Berman

SOLICITOR FOR THE RESPONDENT: Howe Martin and Associates

Orders

1. That the sealed consent order made on 10 December 2008 in relation to children’s issues be uplifted and the consent minutes of order tendered today on behalf of both parties be substituted for that uplifted sealed order.

2. That the husband have leave to file and serve an affidavit in relation to the wife’s capacity to work and the availability of work for her, such affidavit to be filed and served by 4:00pm on 18 March 2009.

3. That the time for the wife to file and serve her affidavit of evidence in chief and the affidavit of evidence in chief of Mr R be extended to 4:00pm on 18 March 2009.

4. That wife have leave to file and serve an affidavit annexing a report by Dr E in relation to the injury recently suffered by the wife leading to surgery and the impact that that may have on the wife’s capacity for employment, such affidavit to be filed and served by 4:00pm on 31 March 2009.

5. That by 4:00pm on 18 March 2009 the wife provide to the husband’s solicitors a minute of order setting out in detail the orders she now seeks by way of property settlement and child support and a copy of that minute of order be forwarded to my associate.

6. That this matter be listed for a conclusion hearing at 10:00am on 26 May 2009 with a time estimate of 3-4 days.

7. That further consideration of this matter be adjourned to a directions hearing at 9:30am on 9 April 2009.

8. That the parties have liberty to vacate the above directions hearing in the event that no issues arise from the affidavits filed pursuant to these orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 380 of 2007

MR PODOPOULOS

Applicant

And

MS ALBERTINNI

Respondent

EX TEMPORE REASONS

1. This is a continuation hearing.  The matter was last before me on 10 December 2008, when I made final orders in relation to the children's issues and I made orders to progress the issue of property settlement. 

2. Dealing with the children's issues first.  Unfortunately there was an error in the consent minutes of order, and everyone is ad idem about the need for that to be changed. 

3. What I have been provided with is an amended set of minutes of final orders which incorporates that change, and I have been asked to, in effect, uplift the sealed order and substitute the amended minutes for that original sealed order.  The parties have provided me with their copies of the sealed order and I propose to do what is requested.

4. In relation to the orders dealing with property settlement, I am told that the orders providing for, in effect, discovery and production have been complied with, although Miss Pyke has flagged that inspection of those documents has not been completed.  She does not raise any issue about that though or seek any further order in relation to it.

5. I note that the wife has complied with the order for the filing of an affidavit dealing with the health issues affecting her capacity to work, and the format of that affidavit is annexing various reports of various health professionals.  There was an issue as to whether the husband might want to put some material on file in relation to that issue himself.  He does wish to do that, and he seeks leave to file an affidavit.  I propose to give that leave.

6. I made orders for the parties to file and serve their affidavits of evidence in chief, including the affidavits and evidence-in-chief of any witnesses on which they intend to rely.  The husband has complied with that, but the wife has not.  I am concerned that there has been no compliance by the wife, but nevertheless I propose to list this matter for a conclusion hearing in a time frame that will allow the wife to still file her affidavits.  However, I am only doing that on the basis that the affidavits the wife still has to file, and which she will do so in three weeks, will not include any new issues beyond what everyone is aware of, and which will not contain any surprises - that is my description - which would then lead to further affidavits and further witnesses being necessary.

7. I appreciate that Mr Berman cannot give me any guarantees about that, but that is the way it has been put, and I proceed on that basis.  If I need to deal with it because there are new issues raised, for example, then there may be an issue of costs flowing from that as a result of the wife's failure to comply with my orders made on 10 December 2008.

8. I made orders in relation to the obtaining of a valuation from the trustee of the S Company superannuation fund.  That has been done, and no issues are outstanding in relation thereto.

9. Separate to all that, Mr Berman has advised me of a recent injury suffered by the wife which has led to surgery only this week.  It may be that that injury has an effect on her ability to work, but that will not be known until late March, when the wife has a follow-up appointment with the health professionals involved in the surgery.

10. What is anticipated is that there will need to be a report of some nature from an expert, or, at the very least, the wife giving further evidence about that injury and any impact it might have on her capacity to work.

11. I raised with counsel whether there were any further or different orders that the parties were seeking by way of property settlement from the minutes of order which were provided to me on the first day of the trial in this matter.  Miss Pyke tells me there is no amendment needed, from the husband's point of view.  Mr Berman, though, says there is a need to amend the orders sought by the wife. 

12. I do not propose to require a formal amended application or response to be filed, but I will require there to be a separate minute of order exchanged or provided to the other side and lodged with my associate.

13. In discussion with counsel, I propose to fix the conclusion hearing in the last week in May, and specifically commencing at 10:00am on the Tuesday of that week, which is Tuesday, 26 May 2009, with a time estimate of three to four days.  I note that inquiries have been made of the relevant health professionals as to their availability for cross-examination that week, and they are all available.

14. I need to have a directions hearing some time after these further affidavits are filed, to look at any issue that might arise as a result of or consequential upon those affidavits, but I will give liberty to vacate that directions hearing in the event that there is no issue to be raised.

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 25 February 2009.

Associate