Podopoulos and Albertinni (No. 2)

[2009] FamCA 431

FAMILY COURT OF AUSTRALIA

PODOPOULOS & ALBERTINNI (NO. 2) [2009] FamCA 431

FAMILY LAW – PROCEDURAL – Interim hearing

APPLICANT: Mr Podopoulos

RESPONDENT: Ms Albertinni

FILE NUMBER: ADC 380 of 2007

DATE DELIVERED: 26 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 26 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Pyke QC

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Mr G Howe

SOLICITOR FOR THE RESPONDENT: Howe Martin and Associates

Orders

1. That the wife have leave nunc pro tunc to file her affidavit on 20 March 2009.

2. That the wife have leave to file and serve an affidavit annexing a report of Dr B such affidavit to be filed and served by 4:00pm on 8 April 2009.

3. That within 7 days of the date hereof the wife produce for inspection by the husband and his legal advisers all documents in her possession power and control that are relevant to these proceedings.

4. That the wife’s application for leave to file and serve a further affidavit annexing schedules of expenditure since separation contained in her Application in a case filed on 19 March 2009 be adjourned to 9:30am on 9 April 2009.

5. That the question of the husband’s costs be reserved to the adjourned hearing.

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. Before me today is the application in a case filed by the wife on 19 March 2009.  I note that this is a matter which is listed for a conclusion hearing in the last week of May and I have it before me on a directions hearing basis on 9 April 2009.

2. The application today seeks an extension of time for the wife to file and serve the trial affidavits of herself and Mr R.  Just pausing there, what has happened is that initially the order I made about that on 25 February 2009 was that those affidavits were to be filed by 4 pm on 18 March.  The wife has in fact now filed - albeit without leave, but I am not fussed about that for today's purposes - her trial affidavit so‑called on 20 March 2009, and Mr Howe seeks, in effect, leave to file that.  Miss Pyke does not oppose that, thus I will make that order in a moment.

3. With the affidavit of Mr R, though, the wife has annexed to her affidavit a letter that was sent to Mr R by Mr Howe on 16 March 2009 inquiring as to whether he was prepared to swear an affidavit on the topics outlined in that letter.  Mr Howe tells me that no response has been received to that, and he is not in a position to say, obviously, whether Mr R will provide an affidavit or not or just what the situation is.  His solution is to not proceed with an affidavit of Mr R but to cross‑examine Mr R during the course of the trial on the topics raised.  Fortuitously, Mr R is a witness in any event in this case.  He will be called as a witness in the husband's case and, thus, he will be subject to cross‑examination.

4. Ms Pyke has pointed out that she would have some difficulty with at least two of the questions proposed to be asked of Mr R, but her client opposes an extension of time to file any further affidavit of Mr R, and it seems that her position too is that this can be dealt with in cross‑examination.  Thus Ms Pyke and Mr Howe are ad idem as to that, and the only issue will be what questions will be able to be asked.

5. In those circumstances then, I note that there will be no further affidavit filed by Mr R and that he will be the subject of cross‑examination on behalf of the wife in relation to any relevant matters.

6. There was an order made on 25 February 2009 that the husband 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 by 18 March 2009.  Ms Pyke has indicated that the husband does not propose to file such an affidavit.

7. The next issue then is that the wife seeks leave to file a report of a Dr B.  Apparently the wife has had some further trouble with her thumb and she has been referred to Dr B.  She is seeing him today and an updated report will be sought.  He already has a report on file, so an updated report is what is intended.  That is not opposed by Ms Pyke in the circumstances, and I propose to make the order but require any report to be filed by 9 April 2009 when this matter is next before me for directions.

8. The next issue - and the most contentious issue today - is the wife's application for leave to file and serve a further affidavit annexing schedules of expenditure since separation.  The wife, in her affidavit in support, provides details in relation to that application, namely, she says that she was requested to provide such schedules by her solicitors.  She has not been able to complete those schedules and she has engaged a bookkeeper to assist with that task.  They were not able to be included in her trial affidavit, and she needs more time.  This issue is also dealt with in her trial affidavit, specifically paragraphs 124 through to 130, and it relates, as I understand it, to the wife's application for child support. 

9. That application is opposed, and Ms Pyke has taken me to earlier orders that I have made which provided for production and inspection of all documents by the end of January 2009.  Ms Pyke has indicated that full inspection of the wife’s documents has not been able to take place because not all of her documents have been produced, despite requests for that to occur.  Indeed, I recall on 25 February 2009 Ms Pyke flagged this as well, in that on that date she asked me to note that inspection had not been able to be completed because all the documents had not yet been produced. 

10. What is happening, as I understand it, is the wife is wanting to retain and have access herself to the documents which she has in her possession to be able to complete the schedules, and thus it is an exercise of a cat chasing its tail somewhat, but Ms Pyke has put to me that the wife should now be on a strict time frame to produce these documents so that the husband can get on with inspection and prepare the matter from his point of view for trial, which is, as I say, to occur at the end of May.

11. Mr Howe has indicated in response that, if an order was made that the schedules be produced within seven days, then the documents could be produced within seven days thereafter and that should satisfy the husband's requirements.

12. In my view, the wife should provide these documents first.  She has had ample time to prepare schedules.  I was told on the last occasion, on 25 February 2009, when the wife had not complied with orders, that she needed further time to file her affidavit material.  I was told that that could be done by 18 March 2009.  I was given excuses on that occasion by Mr Berman for the failure of the wife to comply and I was assured that compliance would be able to be completed by 18 March 2009.  That has not turned out to be the case.  The wife cannot hold on to these documents and prejudice the preparation of the husband's case.

13. Mr Howe has made a logical comment that, if the schedules were available, then that would help focus the husband's inspection of the documents.  That may be the case, but the husband has indicated through his counsel that there are other issues beyond these schedules for which these documents are required.

14. As far as I am concerned, there is no basis whatsoever for the wife to simply hold on to these documents.  They have to be provided for inspection, and I propose to order that that be done within seven days.

15. In terms of whether the wife provides schedules or not, I propose to leave that for 9 April 2009.  This can be another issue that I will address on that day once the documents have been produced, and at least some initial assessment can be made by Ms Pyke's instructors and the husband as to what is required to complete inspection. 

16. As has been discussed between bench and bar, it is not entirely necessary for the wife to prepare and file these schedules before the case starts.  That would obviously be helpful, and that is Mr Howe's point, and I do not quibble with that.  But at this stage, given what I am told of the history of this matter, the husband cannot be prejudiced any further in the preparation of his case.  It would be the wife who then has to fit in with whatever time frame there is to complete these schedules, if that is what she still intends to do. 

I certify that the preceding 16 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland J delivered on 26 March 2009.

Associate