Prentice and Maheris (No. 4)

[2009] FamCA 1074

FAMILY COURT OF AUSTRALIA

PRENTICE & MAHERIS (NO. 4) [2009] FamCA 1074

FAMILY LAW – CASE MANAGEMENT – Property and financial issues – Procedural orders – Exclusion of certain affidavits – Valuation of property in Greece – Evidence by electronic means – Further affidavits
FAMILY LAW – CHILDREN – Contravention application – Withdrawn by leave – Quantum and payment of costs of an incidental to that application reserved to trial

Family Law Act 1975 (Cth)

APPLICANT: MR PRENTICE

RESPONDENT: MS MAHERIS

INDEPENDENT CHILDREN’S LAWYER: INDEPENDENT CHILDREN'S LAWYER

FILE NUMBER: MLC 11939 of 2007

DATE DELIVERED: 6 NOVEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 6 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR PUCKEY

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS STAVRAKAKIS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

Orders

IT IS ORDERED:

1. THAT the report and affidavit of Dr L be filed and served as soon as practicable but in any event on or before Wednesday 11 November 2009, subject only to the payment by each of the husband and wife of 50% of the cost of such report (subject to Notation A hereof).

2. THAT the Independent Children’s Lawyer make, file and serve an updated affidavit of Ms A, and annexe thereto her e-mail report of the December 2008 observation of the child and any matters related thereto.

3. THAT the wife’s solicitor make, file and serve on or before 10 November 2009:

   (a)the affidavit of the single financial expert Mr M as to calculation of capital gains tax and other related issues;  and

   (b)the affidavit of Mr PG, valuer, as to the current market valuation and other requested earlier dates of valuation of the property at 2-4 K Road, K.

4. THAT the affidavit of the husband filed 7 August 2009 be not admitted into evidence in the final hearing save that annexure “LP1” be permitted to be introduced into evidence as to the valuation of that relevant land in Greece.

5. THAT the document translated into English and marked as document No. 9, annexed to the affidavit of Mr AU, and filed on behalf of the wife on 30 October 2009 be admitted into evidence.

6. THAT the real estate agent in Greece, engaged by the wife’s solicitors, Ms KP and the real estate agent engaged by the husband, Mr GN, be forthwith requested to confer and discuss their valuation and the subject property(s) so valued by each of them.

7. THAT otherwise the parties use their best endeavours to obtain an independent or agreed single expert valuation of all land in Greece at their joint cost.

8. THAT, if required, the evidence of each of the real estate agents in Greece can be given by telephone subject to prior arrangement and with a translator available in the Court in Melbourne (in the Greek language) and that both witnesses give such valuation evidence consecutively within the trial.

9. THAT the husband have leave on or before 10 November 2009 to make, file and serve an affidavit from a solicitor of the firm Clements Hutchins & Co. as to their instructions to act in respect of the sale of the interest of the husband in the property at 2-4 K Road, K, and to exhibit their letter of 23 October 2009 (as shown to the Court this day) thereto.

10. THAT the affidavits of FE and DE, both filed 16 October 2009 (and being marked documents No. 77 and 78 in the Court Index) be not admitted into evidence save as to the financial matters detailed in each of those affidavits (the filing of those affidavits being contrary to Order 7 of the orders pronounced 6 October 2009).

11. THAT the time for compliance by each of the husband and wife, and where relevant the Independent Children’s Lawyer, to paragraph 14 of the Order of 6 October 2009 be extended until 4.00 p.m. on Thursday 12 November 2009.

12. THAT the wife’s solicitors have leave (without objection from the husband) to issue a Subpoena to Clements Hutchins & Co for the production to the Court of their relevant conveyancing file in respect of 2-4 K Road, K (as soon as practicable).

13. THAT all parties be at liberty to inspect documents produced to the Court by the CV Medical Centre but all such documents are available for inspection only, and not any copying thereof without the further express authority of the Court.

14. THAT in addition to each of the matters identified in Order 14 of the orders of 6 October 2009 all parties are to make, file and serve by 12 November 2009 a list of objections to be taken to any evidence before the Court and to be relied upon by any other party.

15. THAT the wife have leave to withdraw her contravention application filed 25 September 2009 (without any admission, inference or other conclusion being drawn therefrom) and IT IS NOTED that the husband raised no objection to this course of action.

16. THAT the costs fixed on 6 October 2009 be further adjourned as an issue in the trial.

17. THAT the extempore reasons for judgment(s) be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED:

A.THAT in respect of order 1 hereof the proper costs of the updated report of Dr L are to be considered by the Court in the trial and if it be that there are additional or inflated costs charged by Dr L as a result of time spent on further or additional material at the request of any party then such other costs are, or may be made an issue in the trial by way of a financial apportionment of costs on this issue as between husband and wife.

B.THAT the actual costs of obtaining the various valuations of the property at 2-4 K Road, K, and any additional costs incurred in that valuation process are again issues to be raised and determined at trial.

C.THAT the parties are to attend a Financial Conciliation Conference which previously has been ordered for 9.15 a.m. on Wednesday 11 November 2009 before Registrar Kaur and are there to make a bona fide endeavour to resolve all outstanding financial and property issues and for the purposes of this Conference a single page balance sheet is to be prepared and brought to that Conference by both parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11939 of 2007

MR PRENTICE

Applicant

And

MS MAHERIS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me for final case management all issues in this matter which is listed for a hearing of four-five days commencing 30 November.  Mr Puckey appears as counsel for the wife today, Ms Stavrakakis appears as counsel for the Independent Children's Lawyer, and Mr Prentice appears for himself.

2. I made detailed orders on 6 October 2009 as to the filing of documents and the further management of this matter, but I then thought it appropriate to return all issues before me this day to ascertain compliance with those orders and to deal with other matters arising.  As is my reasonable expectation in this case there are procedural and case management matters and other rulings required on various issues. 

3. Otherwise the matter was before me today on the extant contravention application and costs issues of and incidental thereto and I will later consider those matters after having had further submissions on behalf of the husband and wife.

4. Dealing now with the various case management issues before me I first touch upon the matters raised by the Independent Children's Lawyer.  Dr L has prepared an updated report on all child and parenting matters and presumably there will be recommendations to the court in that further report.  The parties are to pay one half of the cost of this updated report and that must occur forthwith and thereafter the report is to be released to both parties.  The Independent Children's Lawyer will need to file a copy of that report with the court.

5. A supervisor, Ms A, has previously filed an affidavit but I am advised this day that there was one further period of observation, in December 2008, that has not been submitted in evidence to the court.  There is an email of that witness dealing with observations and that should be provided to each of the parties and to Dr L and the Independent Children's Lawyer has confirmed that a short affidavit, annexing that email, will be filed with the court.

6. The other matter raised by Ms Stavrakakis relates to the inspection of subpoenaed documents and in particular the records of Dr D.  I formally release those records and authorise the solicitor and counsel for the child to inspect but not to make copies of those records.  I am mindful that all such records of a private medical nature should be restricted in their photocopying.  The original records will be in court during the trial and can be referred to and placed in evidence where appropriate.

7. On behalf of the wife a number of procedural matters have been raised.  The first is that the independent financial expert, Mr M, is soon to complete his report as to capital gains tax and related issues and that must be filed and served as soon as practicable but certainly by next Tuesday, 10 November.  Likewise the external valuation of the property at 2-4 K Road, K, has been completed by Mr PG.

8. That is a topic that has been touched upon in previous extempore judgments and what is important now is that the valuation be before the court.  That valuation was prepared in line with earlier court directions as to valuation dates and that must be filed and served by 10 November.

9. A particular issue arose in respect of the annexures to the valuation of the property in Greece as prepared by a real estate agent Ms KP.  That report has been translated from Greek to English and is before the court as document marked number No. 9 as an annexure to the affidavit of the Greek translator and interpreter, Mr AU, his affidavit being document number 87 in the court index and filed 30 October 2009.

10. Mr Puckey specifically highlighted that document and the valuation of the various parcels of land therein.  The valuation is in Euros and there must be evidence or an agreement as to the exchange rate with the Australian dollar.  That affidavit is recently filed but the husband has the benefit of reading both the English and the Greek version thereof and/or having his previous valuer who has deposed in writing to a valuation of some land in Greek considering the document now in evidence.  The husband must attend to those matters as soon as practicable.

11. What I intend to do by these extempore reasons is to highlight the basis upon which the wife has stated that she will persuade the court to accept the valuation of the Greek lands.  It may be necessary to have evidence by telephone of that real estate agent and accordingly I will facilitate an order for the giving of evidence by telephone.  That will present very real difficulties both as to the translation of that evidence and how it can be done in respect of documents and identity of land.

12. I will extend to the husband the same courtesy insofar as, annexed to his affidavit sworn 6 August 2009 and filed the following day, (document 50 in the court index) is a written estimate of value from a land surveyor and estate agent, Mr GN, dated 20 July 2009.  That values some plot(s) of land or perhaps an area of land at 60,000 Euro. 

13. The affidavit of the husband of 6 August 2009 is otherwise not to be admitted in evidence as matters in that affidavit are either not relevant to the final hearing or have been the subject of reply or content in other affidavit or relate to K Road and those matters are contained in another affidavit.  I specifically, however, permit the husband to refer to in evidence and to rely upon his annexure "LP1" in that affidavit.

14. Likewise in respect of any evidence to be given by Mr GN I will authorise telephone evidence, subject to an appropriate arrangement, but with a translator.  What is fundamental is that if evidence is to be given by one or both of these gentlemen from Greece it must be at a time convenient to this court and at a time when a Greek interpreter is in this court and can translate their evidence.  Those arrangements will need to be made by practitioners and/or the husband.

15. The husband has produced at court this day a letter dated 23 October 2009 from solicitors, Clements Hutchins & Co.  That letter relates to the sale of a half interest in the property at 2-4 K Road, K.  As to their firm acting on the conveyance or otherwise having the file of and related to that transaction I have indicated to the husband that he can prepare a short affidavit from that firm and annex that letter of 23 October 2009 thereto, or otherwise incorporate within the affidavit the specific instructions of the solicitor then acting.

16. Counsel for the wife have indicated they have not yet subpoenaed that conveyance file.  The husband has no objection to the file being inspected and those comments can be passed on to the solicitor but otherwise I grant leave for that subpoena to issue; but that may be necessary if the document is simply produced and discovered by the wife's solicitor.

17. Insofar as the husband produced another letter at court today from a licensed real estate agent dated 7 April 2008 and relating to the past valuation of that K property I have returned that letter to the husband.  The single expert is valuing that property and I most certainly am not accepting any other valuation from outside the scope and instructions of the single expert.  I await the evidence of the single expert, but this letter is not evidence of any admitted valuation and is not before me in the hearing.

18. I turn now to two further affidavits that have been filed by the husband on 16 October 2009.  They are the affidavits of FE and DE.  Each of these deponents reside at N Street, K and they are cousins of the husband. 

19. Having had a discussion with counsel and the husband and having regard to the contents of the affidavit I first indicate that insofar as financial matters are dealt with in paragraphs 3 and 4 of the affidavit of DE and as to paragraphs 22-26 inclusive of the affidavit of FE I will allow those financial matters to be in evidence before the court.

20. Otherwise the affidavits are filed in support of child and parenting matters relating to the child and I will not permit those affidavits on that child/ parenting issue to be part of the evidence in the case.  I will not read and rely on those aspects of the affidavit.

21. My orders of 6 October were abundantly clear and concise.  The husband was extended the benefit of filing affidavits from the persons identified in paragraphs 5 and 6 of those orders and indeed a further provision for his mother and brother to file an affidavit was provided for in paragraph 4.  That said paragraph 7 is clear.  It provides that:

    "No other affidavits are to be filed by or on behalf of the husband without a formal application served upon all other parties and prior leave of the court being obtained".

22. The husband did not comply with that order and these affidavits are not accepted by the court.  In any event having superficially read the contents of the affidavits there are particular reasons as to their admissibility and content why in any event they would have been the subject of major objection taken and paragraphs struck from the affidavit.  It is not appropriate in evidence for a witness to refer to the comments or observations of others.  Affidavits identifying what was heard or said by others, be they relatives or otherwise, are generally unhelpful and inadmissible.

23. Whilst there may have been some aspects of the affidavit that properly could have formed evidence before the court arising from particular observations of the deponent or other matters within the document I am not going to accept those affidavits and I am mindful that there is a bundle of other affidavits of the husband and members of his family supporting the husband's cause and underlying what is said to be his relationship with the child.

24. In excluding these two affidavits I am mindful of the necessary proper conduct of the proceedings and the requirement to limit this case to the available timetable of four-five days.  That is a timetable which the parties adopted from the commencement of this case and there is no flexibility in the court to extend that timetable. 

25. I record that the parties have been told today that the matter which commences on 30 November cannot and will not extend beyond that week.  I am not in the Melbourne Registry in the two weeks thereafter and then, as my current court schedule of cases remains, I have no vacancy for many, many months thereafter to continue this matter so it must be concluded within that timeframe.

26. I will otherwise extend the period for compliance by the husband and wife with paragraph 14 of my previous order until next Thursday, 12 November.  That is the chronology, summary of argument and all other case management and requirements identified in that paragraph are then to be complied with and provided to the court and in particular I highlight the need to identify witnesses that are required for cross-examination.

27. Given the volume of affidavits now filed I further require both parties to identify any objectionable material and provide to the court a list of any objections taken to particular evidentiary items.  It is appropriate that the independent children's lawyer likewise identify any objection to evidence of either of the husband or wife and that document be filed by next Thursday, 12 November.  Likewise the independent children's lawyer must identify witnesses that are required for cross-examination.

28. For those brief extempore reasons and by way of case management I will now pronounce the following orders:

ORDERS DELIVERED

1. The other issue before me this day is the adjourned hearing of the contravention application filed by the wife.  This related to the husband's compliance with court orders in respect of an inspection (internal) and valuation of the property at 2-4 K Road, K.  That matter was the subject of an earlier hearing and reasons given on an extempore basis before me in respect of paragraphs 33 and 34 of that past judgment of 6 October 2009.

2. The external valuation has now been completed.  It remains a matter in issue as to the husband's compliance or ability to comply with the orders of the court.  The position of the husband is well known as to his sale of property and the overwhelming authority of his brother in respect of any access to that property, notwithstanding that there are tenants therein. 

3. On a practical basis and without any admission whatsoever on behalf of the wife the suggestion made by her counsel today is that that application be withdrawn, by leave of the court, without any admission or penalty on the basis that the parties need concentrate on the bigger issue; that is the final hearing of all aspects of this case.

4. I had previously fixed costs at $4,350 and adjourned the payment to this day.  What I am asked to do and which is not opposed by the husband is to roll over any question of costs to the trial and that will become one of the issues in the trial.  I indicated that I did not want the ongoing contravention matter before the court as it might take priority in the trial and it is for that reason that it is to be withdrawn by leave.  That does represent a pragmatic approach to an issue that is before the court and is central to the property and financial issues in respect of this particular property. 

5. I will therefore grant leave on that basis that no adverse inference or conclusion can drawn therefrom and the whole issue of the quantum or payment of any costs can be argued before me by both parties in the trial.

ORDERS DELIVERED

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..