Rowlings and Rowlings and Ors

[2008] FamCA 356

FAMILY COURT OF AUSTRALIA

ROWLINGS & ROWLINGS AND ORS [2008] FamCA 356

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Affidavit allowed late in piece

APPLICANT: Mrs Rowlings

RESPONDENT: Mr Rowlings

OTHER PARTIES: BR and WR

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2952 of 2006

DATE DELIVERED: 5 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 5 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.R. Dickson 

SOLICITOR FOR THE APPLICANT: Rudstein Kron Lawyers

COUNSEL FOR THE RESPONDENT: Mr J.M. Salamanca

SOLICITOR FOR THE RESPONDENT: Meerkin & Apel

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Mr I.F. Mawson SC

Orders

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2952 of 2006

MRS ROWLINGS

Applicant

And

MR ROWLINGS AND OTHERS

Respondents

And

BR and WR

Other parties

REASONS FOR JUDGMENT

1. There is no doubt that a live issue in this case is whether or not moneys received from the husband's mother and her husband, are gifts or loans.  On any view, it is a central and essential element to the case, affecting everything, from the pool of assets and how it is to be determined, through to contributions and beyond.

2. On 22 January 2008, the husband attached to his trial affidavit various documents purporting to be contemporaneous loan documents for a series of loans over a number of years.  It is clear that the wife had the opportunity from then to have those documents examined by calling for the originals and having a handwriting expert look at them.  She ultimately commenced that process, but it was only on 3 April, which meant she lost a number of vital weeks that should have been used for that purpose.

3. However, when the application or the request from the wife's solicitor to the husband's solicitor was made on 3 April it was met with - I do not know if it was a deliberate lack of co-operation or a genuine difficulty, but however it is described, no documents were forthcoming until 23 April.  The husband's solicitor apparently said that he could not locate the original documents at the time. 

4. In any event, from the time the documents were located and finally forwarded to the wife, the wife's solicitors acted promptly and had a handwriting expert look at the relevant pages.  I do not know if he is actually a handwriting expert or a paper expert, I have not yet read the report in detail.  His expertise is that of a forensic document examiner, and his name is Mr H.  It is only this morning that there has been an attempt to file an affidavit on his behalf. 

5. I am going to allow the affidavit (sworn 2 May 2008, marked as exhibit W2).  It is a case in which, for justice and equity to be done, this very central issue does need to be aired in full and the court does need this sort of assistance.  However, it is absolutely clear that in allowing this affidavit late in the piece there are implications for the other parties and I welcome further submissions now, with some specificity as to what they require in terms of time, and obviously there are likely to be potential costs implications. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  5 May 2008