SEBASTIAN & SEBASTIAN

[2013] FamCA 15

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN [2013] FamCA 15

FAMILY LAW – PRACTICE AND PROCEDURE – Production of all financial and valuation documents

Family Law Act 1975 (Cth)

APPLICANT: Ms Sebastian

RESPONDENT: Mr Sebastian

FILE NUMBER: MLC 6522 of 2010

DATE DELIVERED: 17 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 17 January 2013

REPRESENTATION

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

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fields

COUNSEL FOR THE RESPONDENT: Mr T. North SC 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

REASONS FOR JUDGMENT

1. At the commencement of the hearing this morning I asked of Senior Counsel for the husband certain questions of and related to matters that had arisen in his cross-examination of the wife on the previous day.  I asked the wife to leave the Court, which she did, so as that she gained no advantage from questions asked or matters responded to by Counsel.

2. The issue surrounds the purported add back of a sum of $776,953 which related to moneys which the husband repaid on the sale of Business Y either to his parents or one of them or to the estate of Ms L.  I make no determination at this time.

3. The general issues surrounding the probate and the estate of Ms L are before the Court, as are the matters, at least in general terms, surrounding C Pty Ltd and in particular, the interest that the husband had, subject to any life interest, in both the estate and that entity and its assets.

4. In that general scenario I asked questions endeavouring to ascertain the relevant dates and the banking accounts to which moneys were paid, subsequently held or dealt with.  Those questions led to a disclosure that an ANZ Bank account had been subpoenaed to Court and was currently in Court but under objection from the husband’s father, Dr G Sebastian, as to its release.

5. Subsequently, the husband’s Senior Counsel took instructions from his client, and perhaps others, and as a result those documents were released from objection.

RECORDED:  NOT TRANSCRIBED

1. Those comments of Mr North can be recorded within this short ex tempore Judgment and I accept they accurately reflect that which he said to the Court, the scenario being that the personal matters of Dr G Sebastian remain excluded from the Court but the estate documents and also other documents relating to a corporate entity involved with land ownership by the husband have now been released.  Mr Geddes advised the Court that those documents had, in any event, earlier been made available by the husband’s solicitors.

2. That left certain documents which presently are not before the Court, or have not been purportedly the subject of disclosure, and they include ANZ Bank documents for the estate and in particular, pages 248-253 inclusive and also all statements in the period 11 April of last year until 4 January of this year.  A formal request has been made by the wife’s Counsel for those documents.

3. There is also a formal request for the financial statements of the estate for the year ended 30 June 2012.  Earlier statements have already been produced.

4. Finally, there is a request for an updated statement of the share portfolio of the estate, inclusive of the shares comprising that portfolio and presumably, their number and their current market value as at 4 January of this year, which is the date fixed for valuation of all assets in this trial.  I am not requiring that valuation process to be undertaken at any cost by or on behalf of the executors of the estate.

5. The other issue that I now have a more formal understanding of is item 10(b) in the husband’s statement of assets, which is before the Court as exhibit H8-C.  It is a valuation of the shares and cash in the estate as at the date of probate, or thereabouts.  It is not an updated statement of the assets and that was a matter put in issue by the wife’s Counsel in opening and I do observe that the wife has not consented to the valuation of $105,829, and has recorded an unknown value and that remains an issue before me for determination.

6. Clearly, to determine that issue, I need to know the number and value of shares and cash in the estate as at the date, 4 January 2013.  Accordingly, the Court has requested of Senior Counsel for the husband that arrangements be made for the production to Court of the ANZ Bank statements as requested and of the other documents.  At this stage, Mr North has accepted to take instructions upon that request and there is said to be no need to orchestrate any further matters or give any further directions or orders for the production of those documents so that this important part of the financial equation can otherwise be better understood.

7. I will have these brief reasons, which give rise to no orders but which are really given to summarise part of the discussion this morning between senior counsel and myself, recorded and placed on the file and of course, copies will be given to both parties.  I only record that time is of the essence.  This matter is already lengthy and there must be immediate, full and proper disclosure.  I will be requiring that but I currently do so on the basis of the cooperation offered by the husband’s Senior Counsel and practitioners.  These reasons, including that final observation, will be transcribed and placed on the file as a matter of urgency.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 17 January 2013.

Associate: 

Date:  21 January 2013.