SEBASTIAN & SEBASTIAN

[2013] FamCA 21

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN [2013] FamCA 21

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural Issues

Family Law Act 1975 (Cth)

APPLICANT: Ms Sebastian

RESPONDENT: Mr Sebastian

FILE NUMBER: MLC 6522 of 2010

DATE DELIVERED: 22 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 22 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes QC with him Ms Johns

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr North with him Mr Gates

SOLICITOR FOR THE RESPONDENT: Moores Legal

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sebastian & Sebastian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6522 of 2010

Ms Sebastian

Applicant

And

Mr Sebastian

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. At the commencement of hearing this morning, Senior Counsel for the husband advised the Court of the preparation and submission of a new asset pool.  That document is now marked exhibit “H8D”.  The primary changes are in paragraph 11 thereof, and for the purposes of these reasons for judgment, I do not further develop the matters therein.

2. The Court was also advised by Mr North that it could soon expect to receive the husband’s substantially varied final orders sought under section 79 of the Family Law Act 1975 (Cth). The Court was advised that these orders would restructure the division of property so that current assets comprising the estate of Ms L, and as to the husband’s share only, would be sought to be divided as to 85 per cent to him and 15 per cent to the wife. Otherwise the remaining real property and assets would be sought to be divided on a 70/30 basis, and that was inclusive of superannuation of both parties.

3. Of some significance, the Court was advised that the wife was to be offered ownership and possession of a property at Property E valued at $1.1 million and a cash adjustment, but always prefaced on the basis that she vacate the home in which she now resides at Property W.  The matters that then arose primarily related to a consideration of clause 10(b) of the husband’s statement of assets in “W33-C” that is, the value of the shares and cash applicable to him in the estate of Ms L. 

4. Currently in the document that is shown in the sum of $105,829, though the husband had earlier, through his counsel, advised the Court that was a probate valuation obtained in or about the year 2000.  The wife currently contests, but does not know a value of those cash and shares.  It is also appropriate to identify that the husband records in paragraph 10(a)(ii) the proceeds of sale of Property Q, which are agreed at $435,726.

5. I had then read and understood the position of the wife as is explained in exhibit “W33” before the Court in relation to the current value of the husband’s cash and shareholding or other valuable interests, if any, in the estate of Ms L.  What then arose was that the wife’s Senior Counsel presented to the Court a document which is now marked as exhibit “W43”.  That comprises a list of documents and information sought on behalf of the wife in relation to the estate of Ms L.

6. This matter has a long background.  I have a memory from the proceedings in August of last year that the value of the husband’s current interest or entitlement in that estate was raised.  Certainly it has been a matter dealt with in various Court orders.  It is a matter which is still somewhat unexplained, though the husband and his counsel have updated matter to the Court this day.  It is appropriate, and as a general review only, I record that Mr Geddes took the Court to the many orders that had been pronounced seeking discovery or production of documents or enforcing the delivery thereof.  Many of these orders were made by consent.

7. The orders can be summarised as follows: 

   (i) the order of 27 September 2010 by Registrar Mestrovic, as to paragraphs 1(e) and (f) thereof; 

   (ii) my orders on 13 April 2011, as to subparagraphs 1.1.5 and 1.1.6; 

   (iii) my orders of 28 May 2011, as to paragraph 4 thereof; 

   (iv) the orders of Registrar Sikiotis on 10 August 2011, as to paragraph 6(b) thereof; 

   (v) the orders of Senior Registrar FitzGibbon on 27 October 2011, as to paragraph 10(b) thereof; 

   (vi) my orders of 1 February 2012, and in particular, paragraph 4 thereof –

   (vii) my orders of 1 February 2012, as to paragraph 4 thereof; 

   (viii) and my further orders of 17 August 2012, where leave was given to issue subpoenas in respect of the estate and C Pty Ltd to obtain both tax returns and financial statements, many of which, I am informed, have now been produced.

8. The wife’s Senior Counsel handed me another document as an aide‑mémoire, which I then returned to him, and it was not then marked as an exhibit.  That document, however, recorded that, on the best endeavours of the wife and her legal practitioners, “a best guess” of the husband’s interest in the estate would be approximately one-third of a sum of $1,565,573.

9. The reply of Senior Counsel for the husband was to direct the Court’s attention to paragraph 10 of his exhibit H8 and thus the addition of the sale proceeds of Property Q and the probate value of cash and shares would likely equate to approximately the dollar figure advocated by the wife and her legal advisers.  That said, I draw no conclusions therefrom and ultimately, and somewhat unfortunately, this matter will await further evidence and cross-examination over many days.

10. I allowed counsel some little time, and as a result, Mr North, in addressing exhibit W43, has been able to advise that some of the documents were in Court and have now been produced and other documents will, hopefully, be produced later this day.  There remains a significant issue over item 1(e), that is, cheque butts, if they are available, and I preface that by recording Mr Geddes’ submission that the existence of any cheque butts of and related to accounts within the estate of Ms L only became known to the wife as recently as last Friday and arising from other documents produced.  That may or may not be the case and I do not make that finding as a fact.

11. The overview is that I have been asked to order today in the terms of exhibit W43.  I want to emphasise the urgency.  Indeed, time should long have passed for the production of documents and into effectively the third week of this trial, documents are still being requested and sometimes produced.  That is wholly inappropriate.  That said, however, I am not going to make any further orders at this time in relation to exhibit W43.  I will trust that the commonsense and understanding of counsel and the efforts of the clients to obtain documents will see them all produced forthwith.

12. I have taken the opportunity to record these extempore reasons, which more factually reproduce the submissions today, so that they can be prepared, taken out and made available to the parties, and more particularly will act as a reminder to me on the events of this morning, the documents now produced or to be produced and will be relevant for what, no doubt, will be very substantial and contested costs and other applications arising at a later date in this matter. 

13. I will have these reasons transcribed as soon as practicable and they will be distributed to the parties with the original copy retained upon the Court file.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 22 January 2013.

Associate: 

Date:  30 January 2013.