Prentice & Maheris

[2009] FamCA 485

FAMILY COURT OF AUSTRALIA

PRENTICE & MAHERIS [2009] FamCA 485

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: MR PRENTICE

RESPONDENT: MS MAHERIS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11939 of 2007

DATE DELIVERED: 2 JUNE 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 2 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR THOMPSON

SOLICITOR FOR THE APPLICANT: KENNA TEASDALE

COUNSEL FOR THE RESPONDENT: MS STOIKOVSKA

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

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 leave be granted this day to the solicitors for the husband to file an interim application together with an affidavit of the husband and a further affidavit of his treating psychologist relevant to child issues only.

2. THAT the interim application be made returnable before Young J on Friday 7 August 2009 at 10.00 a.m. for a discrete hearing, on the papers, of any proper and necessary variation in the period of time which the husband now spends with the child.

3. THAT the wife and her solicitors have a further period of twenty-eight (28) days thereafter to make, file and serve a response and other affidavits as to that interim issue.

4. THAT the Independent Children’s Lawyer have a further fourteen (14) days thereafter to make, file and serve any application or affidavits in response to that interim issue.

5. THAT the further report of Dr L, as required pursuant to paragraph 4 of the consent orders dated 3 February 2009, is to be prepared and filed on or before 4 September 2009 and for the purposes of such report the parties are to co-operate in all ways with Dr L and attend conferences as required and the expense of the further report is to be shared equally as between the husband and wife.

6. THAT within twenty-eight (28) days of the date hereof the husband and wife are to instruct their solicitors to wholly comply with paragraphs 3, 4 and 5 of the orders made by Registrar Lethbridge on 22 April 2008.

7. THAT the husband is to provide full and complete title particulars or identity of property of any land owned by him in Greece, or in which he holds an interest as owner himself or together with any other person or entity.

8. THAT within twenty-eight (28) days of the date hereof the husband and wife are each to make, file and serve a comprehensive affidavit of documents and make available for inspection and copying all documents which are not the subject of proper objection.

9. THAT on or before 11 September 2009 the husband make, file and serve his trial affidavit and the affidavits of any other witnesses upon whom he intends to rely in these proceedings and file a Form 13 financial statement.

10. THAT on or before 2 October 2009 the wife make, file and serve her trial affidavit together with the affidavits of any other witnesses upon whom she intends to rely in these proceedings and file a Form 13 financial statement.

11. THAT on or before 9 October 2009 the Independent Children’s Lawyer make, file and serve any affidavit upon which they intend to rely in the proceedings.

12. THAT all extant final applications are to be listed as a defended hearing before Young J, or such other Judge as may be assigned this matter in November / December 2009 or as soon as practicable thereafter as the matter can be listed, and for a hearing of 4 – 5 days.

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

14. THAT the husband and wife attend with their legal practitioners at a Financial Conciliation Conference before Registrar Kaur on a date to be hereafter fixed within the first two weeks of November 2009 and such Conference be booked from 9.15 a.m. to 1.00 p.m. inclusive and each of them are to prepare and present a single page balance sheet incorporating their evidence for the purposes of such Conference and the parties are to make a bona fide endeavour to resolve by negotiation all outstanding property and financial issues.

THE COURT NOTES:

A.THAT by counsel the estimate of hearing advised to the court this day is between 4 – 5 days and any future defended listing will depend upon the accuracy of that estimate.

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 is before me for case management this day.  Mr Thompson of counsel appears for the husband, Ms Stoikovska of counsel for the wife, and Ms Smith appears as the Independent Children's Lawyer.

2. The matter was last before the court on 3 February 2009 when consent orders were made by Mushin J as to the time the husband was then to spend with the child.  Those orders are continuing and they separately provide for an updated family report from Dr L and for a level of supervision and assistance to be available by a family consultant to the parties on a confidential six-month period.  All interim applications were dismissed and there was an order made for final applications to be returned for hearing before myself for preparation as to a defended date which I was then to fix with priority as may be appropriate.

3. At the outset, priority becomes somewhat irrelevant in that the husband's case is predicated on the basis that his brother is overseas and not returning until the end of October this year and the matter cannot be heard before that date.  The other preliminary observation is that there are child and property matters before the court.  I do not intend to have two separate hearings.  All matters must be prepared and be available for final hearing.  I do not propose to currently list the matter before me, but indicate the matter can and should be heard in November or thereabouts of this year.  I will endeavour to have the matter heard by myself.  I will retain the discretion to discuss with Cronin J as the co-ordinating Melbourne judge as to any interstate judge who might be available to hear that matter - subject to its state of readiness.

4. As to the child issue, the ongoing interim issues are that the husband seeks an increase in time from that previously ordered and which has now been in place for four months or thereabouts.  Commonsense should determine what is in the child's best interests, and with experienced solicitors and counsel these matters should be discussed and any appropriate changes implemented.  I can only express that possibility in these extempore reasons; and I have indicated I will list the matter before me on 7 August, strictly for a one day maximum hearing on the papers of interim issues.  I am likely to have other matters that day.  My concern that day will be to ensure the matter is being prepared for final hearing and is on track.

5. Mr Thompson has indicated that there is an interim application together with an affidavit of his client and an affidavit of his client's treating psychologist ready to be filed.  I will permit them to be filed this day and immediately served upon the solicitor for the wife and the Independent Children's Lawyer.  Thereafter both the wife and the Independent Children's Lawyer will have time to file further responding material if required.  The wife can have 28 days, the Independent Children's Lawyer 14 days thereafter.

6. It is the position of both parties that Dr L’s report should not necessarily be available for that interim hearing, but that it should concentrate on the final determination of the matter and evidence and recommendation relevant to a long term order.  On that basis, Dr L’s report is to be filed by 4 September and the Independent Children's Lawyer is given the responsibility of ensuring that conferences are fixed and timetable is in place so that the final report is then available.  The benefit to that timetable is there will be the month of August for Dr L to consider any updated order and the flow-on effects between child and parents in that regard.

7. As to property, I am generally aware of the background of this case from previous orders.  There is an issue that the tenant of the B Street, P, property is said to be in arrears of payments and there might be issues arising therefrom as to the service of mortgage debt or otherwise sale of a property.  Those issues have previously been before the court.  I make no determination as to what, if any, issue should be heard; and it may be that they will be all simply part of a final property determination.

8. If those issues are to impact upon a final hearing, I require to be told all relevant information and I charge counsel and solicitors in that regard to so inform the court on 7 August.  Otherwise I will adopt the request of counsel to make an order for enforcement and compliance with the order of 22 April 2008 by Registrar Lethbridge as to the production of valuations and the exchange of documents.  I will separately order an affidavit of documents from the husband and wife and make more particular orders in respect of the disclosure by the husband of any all ownership interest or title interest in any property in Greece of whatsoever nature, whether it be a minority interest or whatever. 

9. The intent of what I require by that order is abundantly clear.  All land or interests in land held by or on behalf of the husband and wife are to be disclosed, placed before the court, and valued.  I will otherwise make orders so that the husband's material for hearing on all final issues is filed by 11 September, and the wife likewise with all documents before the court and evidence concluded by 2 October.  The Independent Children's Lawyer's affidavits, if any, or other evidence and be before the court by 9 October, given that it is likely to comprise the report of Dr L, and I am now told some evidence from a supervising community care group as to the time spend by the husband with his son.

10. As to witnesses, Ms Stoikovska has indicated, subject to valuation, evidence that the wife will rely upon the evidence of herself, her mother and her sister.  From the husband's point of evidence, and apart from valuations, he would rely on the evidence of himself, his brother and mother, and perhaps one other relevant independent witness, together with his treating psychologist.  That at least is the basis upon which the estimate of four to five days as a hearing of all issues, child, property and financial, is given this day.  Were the hearing to be any longer, it could not be accommodated this calendar year.  I also take this opportunity to reinforce that earlier affidavits - the many and varied documents in this extensive file - are not to form part of the evidence, but the matter is to be prepared on the basis of the trial affidavit and updated financial document and discrete affidavits that are relevant to the final hearing.

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

………………………………………………………..
Associate:  Annette King