Prentice and Maheris (No 5)

[2009] FamCA 1136

FAMILY COURT OF AUSTRALIA

PRENTICE & MAHERIS (NO. 5) [2009] FamCA 1136

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Split of child and parenting issues from property and financial issues – Two separate hearings ordered

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: 19 NOVEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MS FORMICA

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS SMITH

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

Orders

IT IS ORDERED:

1. THAT the issues for determination in this case are to be split so as, commencing Monday 30 November 2009 the Court will hear (only) all child, parenting and related issues (but not property and financial issues).

2. THAT leave be given to the husband this day to file his list of objections to the affidavit of the wife and her witness.

3. THAT the husband pay, and be solely responsible to pay, all proper costs and disbursements to Dr L of and incidental to the further conference arranged on 19 October 2009 and preparation for and any report arising from that conference.

4. THAT the time for filing the Court ordered practice documents, chronology, updated orders sought and any other outstanding document(s) be extended until 12.00 noon Tuesday 24 November 2009.

5. THAT for the purposes of the evidence to be given in the proceedings it is requested that preliminary arrangements be made for:

   (i)Dr D to give evidence at 10.00 a.m. on Wednesday 2 December 2009;  and

   (ii)for Dr L to give evidence at 10.00 a.m. on Thursday 3 December 2009;

   or other appropriate times, and if necessary each of the professional witnesses will be interposed in the giving of their evidence at that date and time.

6. THAT the parties are not to rely upon any evidence in affidavit(s) of any witness which is not filed for the purposes of the defended proceedings but which has been filed in earlier interim proceedings now concluded, subject to any leave or contrary direction which may be given on the first day of trial.

7. THAT all property and financial issues be adjourned for final defended hearing before Young J as a four (4) day (only) defended matter commencing Monday 15 March 2010.

8. THAT as to the land in Greece the husband forthwith facilitate a report as to land description and valuation from his Greek real estate agent, Mr GN, and make available that report to the wife’s solicitor and, in affidavit form, to the Court (properly translated) as soon as practicable but in any event before 30 November 2009.

9. THAT insofar as the single expert financial witness, Mr M has prepared a report the husband is to forthwith provide to him any and all further legal documents, title searches and further calculation of capital gains tax and, if requested by Mr M, the husband is to arrange a conference between the family/property accountant and the single expert.

10. THAT the payment of any and all costs of and incidental to further work undertaken by Mr M, or any further report prepared and submitted by him to the Court, is to be a matter determined at an adjourned hearing date or in the final property / financial hearing.

.

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. The matter of Prentice and Maheris and the Independent Children’s Lawyer, the hearing is listed before me to commence on Monday, 30 November.  At all times the matter has been listed for up to five days and there is no other available time in my list to extend the matter beyond that Friday, 4 December.  That has been known to the parties for many, many months, and indeed, was known to the husband at various times when he engaged legal practitioners on his behalf.  I have listed this matter this morning for case management purposes.  There have been a number of recent mentions of this matter, and as the affidavits and letters and other documents have either been filed with the court or forwarded to the court I have continued to echo concerns as to the hearing time for this case.

2. I am very confident in my prediction that the determination of the child and parenting case will, in itself, take at least four days, irrespective of the additional time required for property and financial matters and the rather complex evidentiary issues, and other legal issues therein.  I therefore have listed the matter this morning specifically to hear submissions from the parties and make a determination on splitting the substantive issues in this case.  That is, first hearing the child and parenting and related issues, and thereafter, at a date and time to be fixed, the property and financial issues.

3. On the issues of the child, Dr L has prepared numerous reports, and is scheduled to give evidence as a witness called by the Independent Children’s Lawyer.  I am advised that there are up to six reports, on a progressive basis, that have been prepared by Dr L, including a most recent report arising from a consultation between father and son on 19 October of this year.  That consultation was at the request of the father, and there were various documents provided to Dr L to prepare for that report. 

4. There is an issue of payment of Dr L for that consultation and further report.  On all that I have heard, and given my substantial background and knowledge of this case, it is very proper for the husband pay for that consultation and report of that day.  The husband says he cannot afford to pay.  I encourage payment to be made and for Dr L to release his report to all parties and the court.  Otherwise, I will make an order today, ensuring that responsibility for payment is rested upon the husband. 

5. In the context of the child and parenting case there is a request for a psychiatrist, who has previously consulted with the wife, Dr D, to give evidence.  The wife has evidence from herself and several other witnesses.  The husband has floated the necessity to have evidence from himself and any number of other family and friends, to give evidence of their observations or other matters.  I have already ruled inadmissible two affidavits, and that ruling stands. 

6. Insofar as there have been affidavits prepared by the husband for interim proceedings long ago determined it must not be assumed that those affidavits can and will be relied upon in this defended hearing.  Past interim proceedings are concluded.  Affidavits in those proceedings were filed for that interim hearing and are not part of the defended hearing.  That has been previously made clear to all parties, but I take this opportunity to emphasise that the affidavits that I will read and allow in evidence are those relevant to, and filed for the purposes of, this defended hearing.

7. I am wholly aware of the background to the property and financial issues, and there are numerous ex tempore judgments that I have delivered over the past 18 months or thereabouts on procedural, financial and injunctive and enforcement issues.  There are issues of and related to the identity of ownership of property, purported transactions to sell the husband’s interest in property, and otherwise overseas property.  All of those matters need some level of proper identification and investigation and will take time. 

8. As I assess on a case management basis all of the issues in this case I have no confidence whatsoever that all issues can be dealt with in less than five days.  Indeed, from my further readings of documents filed, I would describe as “fairyland” the suggestion that all financial, property, child, injunctive and parenting issues can be concluded within the five days that are available, the week after next.  I intend to give priority to child and parenting issues.  Those issues remain listed, and will commence on 30 November. 

9. I will now order a separation of property and financial issues and I will fix a separate date for hearing of those matters.  That date will be Monday, 15 March.  I have four days only between 15 and 18 March inclusive, and notice is therefore clearly provided by the court to the husband and wife that the property matters need be concluded at that time, that all witnesses need be available, that notice need be given now.  One of the procedural benefits in determining the child and parenting issues first is that the Independent Children’s Lawyer can then be excluded from the case.

10. I conclude in the management of this case that the separation of issues is both proper and necessary.  It would be wholly inappropriate to have all issues in this matter part-heard for an extended period of up to four months.  It would further increase the legal costs of all of the parties and it would make more complicated the determination of issues and the speedy provision of judgment. 

11. I have received from the husband and will give leave for him to file a list of objections that he or more likely someone on his behalf has prepared in relation to the wife’s affidavit.  I have invited Ms Formica to review those matters, and provide me, at the commencement of the hearing, or an earlier date, a further copy of the wife’s affidavit, with any deletions agreed to in red ink, so that time spent in objections can be necessarily reduced.  The same courtesy must be extended to the Independent Children’s Lawyer.

12. Of necessity, what I require in this case is the filing of Dr L’s updated report, so that his recommendations, if any, can be seen in the whole of all of his reports.  There is also an affidavit and report to be filed on behalf of Ms A.  At this stage, no party has filed their summary of argument, and fine-tuned their orders sought.  That must happen on a mutual exchange basis, and by next Tuesday, 12 noon, at the latest.  In any event, if they are not exchanged, they are still to be filed with the court by next Tuesday, 12 noon.

13. Whilst the above is primarily case management, I intend to pronounce formal orders, in the hope that they are complied with by all parties.  What I intend to fix is the splitting of issues, so that the parties can focus exclusively on child and parenting matters the week after next.  I will have these brief reasons transcribed and made available to the parties, and I will now pronounce appropriate orders.

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

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