Sanford and Sanford

[2009] FamCA 109

FAMILY COURT OF AUSTRALIA

SANFORD & SANFORD [2009] FamCA 109

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

Family Law Act 1975 (Cth)

APPLICANT: MR SANFORD

RESPONDENT: MS SANFORD

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9069 of 2007

DATE DELIVERED: 18 FEBRUARY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 FEBRUARY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR WERNER

SOLICITOR FOR THE APPLICANT: D.K.P LAWYERS

COUNSEL FOR THE RESPONDENT: MR DA GAMA

SOLICITOR FOR THE RESPONDENT: VERNON DA GAMA & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS CARTER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MARIA BARBAYANNIS & CO

Orders

IT IS ORDERED:

1. THAT the further hearing of all extant applications be adjourned for mention and case management before Young J on Tuesday 4 August 2009 at 10.00 a.m.

2. THAT the matter be listed as a three (3) day defended hearing before Young J commencing 10.00 a.m. on 24 August 2009 (but subject to all documents being filed and orders complied with by the abovementioned case management hearing date).

3. THAT within ninety (90) days the mother make, file and serve an updated statement of orders sought as to both children, parenting, financial and property issues and the father make, file and serve any amended orders sought within a further thirty (30) days.

4. THAT the mother and father each make, file and serve a primary affidavit of evidence in chief as to all issues in dispute on or before Friday 17 July 2009.

5. THAT the firm of real estate agents R Realty or such other firm as may be agreed be appointed to provide a valuer or otherwise to nominate a valuer for the purposes of providing a current market valuation of the property situate at and known as S Street and registered in the name of the father, such valuation to be undertaken as at 30 June 2009 and to be at the joint expense of the parties.

6. THAT on or prior to 31 March 2009 the father give all necessary instructions and provide all documents for the preparation and filing of all of his outstanding taxation and corporate returns and required BAS statements and within fourteen (14) days thereafter provide to the solicitors for the wife true copies of all such documents and any assessments or notices arising therefrom.

7. THAT as and by way of mutual discovery and within sixty (60) days each of the mother and father provide to the solicitors for the other party all relevant bank statements and records, corporate and financial accounts, business documents and all statements of and related to the ownership or management of the S Street unit and all other documents as may be reasonably requested by the other solicitor and as are relevant to the proceedings before the court.

8. THAT paragraph 6 of the order of Senior Registrar FitzGibbon pronounced 4 December 2007 be discharged.

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

10. THAT leave be granted to the solicitors for the father to make, file and serve an updated Form 13 financial statement within five (5) days hereof.

11. THAT all parties have leave, on proper documentation filed, to mention the matter by prior arrangement with Young J.

IT IS NOTED:

A.THAT the parties have agreed to attend therapeutic counselling with Ms N commencing 18 March 2009.

B.THAT the parties have arranged to attend upon Ms D for the purposes of the preparation of a Family Report, the first scheduled conference to be arranged on 10 March 2009 and subsequently that report and its recommendations, if any, is to be filed with the court.

C.THAT the authority of the court has already been provided to the Independent Children’s Lawyer to subpoena relevant Department of Human Services, Victoria Police and other documents and when available they are to be released for inspection to the solicitors for the parties.

D.THAT it is expected prior to the case management further hearing that the parties and their solicitors, and the Independent Children’s Lawyer will make a bona fide endeavour to confer and resolve all outstanding financial, property, children and parenting issues.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9069 of 2007

MR SANFORD

Applicant

And

MS SANFORD

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Sanford was listed before me as a first day Less Adversarial Hearing. Mr Werner of counsel appeared for the applicant father.  Mr Da Gama, solicitor, for the respondent mother, and Ms Carter appeared as counsel on behalf of the Independent Children's Lawyer.

2. Dealing firstly with children's issues, there are two children - M, who is now 12 years of age, and B, who is soon to turn nine years of age.

3. Pursuant to an order of Senior Registrar FitzGibbon they currently live on a week‑about basis with their parents.  The father lives in S, the mother lives in H, and the children attend their respective secondary and primary schools in N.

4. There is some level of agreement in that both parents are seeking a change to the week-about order.  Each of them seeks an order for equal shared parental responsibility but with the children to predominantly live with each of them and to have time spent with the other parent on alternate weekends and holidays.  Both parties have prepared a questionnaire which I have read.

5. When the matter came before the court there was no family consultant assigned to the matter.  I have, however, heard from Ms Carter that the parties have engaged Ms D, psychologist, to prepare an updated report.  There is already on file a report from November 2007 from her and there are to be conferences held with the parties and an updated report prepared as of 10 March of this year.  The estimate was that it may take several months for interviews to be completed and for the report to be made available.  The request of counsel for the independent children's lawyer was that this matter be listed for trial on or after June of this year.

6. Originally this matter was in the Federal Magistrates Court.  It was, for some reason that I find difficult to ascertain, transferred to this court in June 2007 by Hughes FM.  Pursuant to the order of that magistrate there was to be parenting counselling undertaken by the parties.  There is now an agreement that Dr N is to see the parties and commence a form of therapeutic, wholly out of court, counselling as of 18 March and that is appropriate.

7. There is some background concern relating to files produced by the Department of Human Services or as are now sought from police involving an incident long ago in which the father had some involvement.  Those matters may or may not be relevant - I do not comment - but leave has already been given to the Independent Children's Lawyer to issue subpoenas, seek to have produced to the court and read documents obtained.  I extend to solicitors for both mother and father the right to read, inspect and copy those documents.

8. The parties are also in dispute as to a settlement of property.  The father has not yet filed a financial statement though a draft, unsworn, copy was produced to the court this day.  I have given leave for that document to be filed and it must be filed and served upon all other parties within five working days of this day. 

9. Previously the parties owned a property at C Street.  That was sold in or about January 2006 for a sum of approximately $234,500.  It is said that the majority of those moneys repaid debts to National Australia Bank, St George Bank and a car loan.  Those matters can be clarified on hearing if appropriate.  Otherwise the parties own a unit in S Street.  There is a dispute about the value of this unit, but it is anticipated to be worth approximately $250,000 or thereabouts.  It is encumbered by a mortgage in favour of National Australia Bank of approximately $31,000.

10. In the draft financial statement of the father now before me there is a very considerable debt owing by way of outstanding body corporate or renovation fees and/or rates.  An examination of that debt is appropriate.  I will appoint a valuer from the from R Realty or a valuer nominated by that firm to value as at 30 June 2009 the current market value of that unit which is registered in the sole name of the father.  I record that all rental moneys are paid to the father.  I will not change that situation on this interim hearing but that will be a matter of substantial investigation or interest, no doubt of the mother and perhaps of the court hereafter. Certainly the father must account for moneys previously received.

11. The father has not filed an income tax return for the past three years.  It is uncertain as to what BAS statements have been lodged.  First, his requirement is to update and file by 31 March 2009 all taxation returns for himself or any business.  I am advised by his counsel that an accountant is engaged in that process and that date should provide no difficulty.  There must be an assessment of tax and interest for other penalties so that proper disclosure is made of all such information.

12. An issue has been raised by the solicitor for the mother that proper financial discovery is required.  The father has certainly disclosed debts and more particularly there is said to be a concern over his true income and the value of his business.  I make no finding.  Evidently the father sells equipment on behalf of P Company.  Whether or not his clients' lists are personal to himself or to P Company may be a matter in issue.  Is there any goodwill attached to the business of the father is a matter of debate.  I express no view, but it would be appropriate for the solicitors to engage a modest charging firm of accountants as a single expert to determine whether there is any value or goodwill attached to that business and perhaps to verify the income and expenditure of the business.

13. I record this order was previously made by consent by a Registrar and I will not overturn that earlier order.  I have no heard evidence today.  This day was meant to be the first day of a Less Adversarial Hearing.  It did not proceed because on children's issues the evidence was not available.  On financial and property issues, the material simply is out of date or contested, and before the further mention date all documentation must be updated and filed.

14. What I propose to do is to list this matter for mention before me on 4 August at 10.00 a.m. and otherwise list the defended hearing of children, parenting and property matters as a three-day hearing commencing Monday, 24 August 2009.  I very carefully underline that if by 4 August all evidence is not before the court and all orders have not been complied with, then the hearing date will almost certainly be vacated.

15. I will have the transcript of these extempore comments recorded, placed on the file and made available to all parties and I will pronounce 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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Associate: