Sebastian & Sebastian (No 3)

[2013] FamCA 20

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN (NO. 3) [2013] FamCA 20

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing on evidence and procedural matters – Objection taken as to change of dollar sum and period (months) covered – Objection over-ruled – Updated evidence and expenditure to be placed in evidence before the Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Sebastian

RESPONDENT: Mr Sebastian

FILE NUMBER: MLC 6522 of 2010

DATE DELIVERED: 1 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 1 February 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 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

EX TEMPORE REASONS FOR JUDGMENT

1. An issue has arisen in this ongoing matter where I have received submissions from Senior Counsel and a ruling is required as to the admissibility of evidence in the procedure and conduct of this hearing on a particular evidentiary and financial issue.  The husband is in cross-examination.  An issue was before the Court, at the conclusion of yesterday’s hearing as to payments that the husband had made or caused to be made to T Pty Ltd.  The invoices for those payments were before the Court in exhibit “H9” which is the husband’s Court Book, tab 25, where the accounts from 20 April 2010 to 1 June 2012 were before the Court.

2. There is a preliminary issue as to how that exhibit came before the Court, but that is not necessary to now resolve, though my memory is that it was a document then used by the wife’s lawyers and conveniently tendered by them and marked as a husband’s exhibit.  The wife had initially instructed her lawyers to prepare her required balance sheet of her assets and liabilities and that is a working document that has been updated through these exhaustive proceedings.  The original copy of that document was filed back in August 2012 and it is exhibit “W33-X” and that document did not specifically disclose, as an add-back, the particular T Pty Ltd issue now before the Court.

3. Subsequently in the first updated version of that document, in paragraph 7(ix) of “W33-A”an add-back was sought for those transfers to T Pty Ltd.  In the document, in its original typed form, the date was shown as commencing 20 April 2018 and excluded bank guarantees.  I have a clear memory and it is now a matter of agreement, that the wife’s Senior Counsel, advised the Court that the date was clearly a typographical error and I amended that document so that it was dated 20 April 2011.  That was by consent.

4. Thereafter the updating of that document continued and exhibit “W33-B” was corrected to show the date of 20 April 2011 with the claimed amount of $159,004.  That scenario was repeated in the further version of the document “W33-C”.  Finally the version of the wife’s asset pool now before the Court is “W33-D” and that was handed to the Court some days ago.  The add-back in respect of T Pty Ltd has changed in that the date has changed to 20 April 2010.  What is now included within that document is that an add-back is sought in the sum of $159,004 for transfers made by the husband to T Pty Ltd for the extended period 20 April 2010 – 2 June 2012 and excluding bank guarantees.

5. There is a footnote in the document which further explained that add-back.  That footnote reads:

   Quantum admitted by husband through his senior counsel on 24 January 2013.  Amount of claim to be confirmed at conclusion of cross-examination of husband.

   That changing date from calendar year 2011 back to calendar year 2010 was not drawn to the attention of the husband, or his legal practitioners, or to the Court.  It should have been so identified and it is very reasonable for complaint to be now made by the husband’s Senior Counsel in relation to that change of date.  That said, however, the documents which are before the Court as tab 25 to exhibit “H9”, and excluding bank guarantees, clearly covers the period 20 April 2010 until 1 June 2012.

6. At the commencement of the hearing this morning Mr North foreshadowed that his client had communicated overnight by email to each of his lawyers a summary of the additions in tab 25 of exhibit “H9”.  The husband had been invited to attend to that task overnight by Mr Geddes and by the Court. 

7. The dollar amount excluding bank guarantees and GST which the husband had calculated was $194,507.  That was the same sum that Mr Geddes had identified late in the proceedings yesterday afternoon when the issue was raised in cross-examination.  To put in context the issue, the wife asserted that there should be an add-back to the pool of assets for moneys which had been paid by the husband to T Pty Ltd primarily for the office space rental and other office services and management services provided at the premises of Property V.

8. It is a matter of substantial contest before the Court as to whether that add-back should be so made and that is a matter upon which I will finally deliver reasons for judgment at a future date.  I do not address that issue in these extempore reasons for judgment. 

9. Mr North’s submissions focused upon the position that the wife’s lawyers had established in their working balance sheet document, being the continuingly updated asset pool.  He focused upon the documents that his client has originally produced to establish the monthly and other payments in tab 25 of “H9”.  He advised the Court that properly structured from 20 April 2011, and excluding that day, those payments should total only $116,629.70.

10. Otherwise and in the alternative, if technically speaking, the payment should be from 20 April 2010 and, excluding that day the payment should total $187,010.90. 

11. The Court has considered each of those options.  Mr Geddes’ more general response is that this Court has an obligation to determine a just and equitable division of property.  What is before the Court, and for so long has been before the Court, is the exercise of determining what comprises the pool of assets both as to the categorisation of assets and liabilities and as to the quantum thereof.  I well understand that this hearing commenced in August 2012.  Many days were spent in technical objections to affidavits, drawn or settled by legal practitioners, and the outcome of those matters will form part of my final reasons for judgment.

12. The matter was adjourned in August 2012 part heard and resumed before me on 14 January 2013.  In that regard therefore it is somewhat understandable that the tax invoices of P Pty Ltd made in favour of T Pty Ltd have been provided and are dated only to 1 June 2012.  That is in the two months prior to the actual commencement of the hearing.  Insofar as the Court currently has documents they have not been updated, though the date fixed for the valuation of all assets and liabilities was extended to and is 4 January 2013.

13. Thus the issues before the Court both involve the wider picture of a just and equitable determination of the property division and the more particular issues of the way in which the wife’s lawyers have refined and presented their case, the error on the face of the document as to the calendar year and the wider picture of the concession which counsel reached following upon the evidence of Mr F, a witness called by the wife who had professional experience and qualifications and who oversaw his staff in the preparation of a substantial but erroneous – in part erroneous document.  Mr F’s evidence is no longer relied upon and there were certain concessions made on other issues.

14. There is a live issue as to whether or not there was a concession of quantum or an agreement or otherwise in respect of the figure of $159,004.  Mr Geddes has referred to the notes of his junior counsel and solicitor.  Mr North has certainly advised me of his recollection and understanding of what was said.  I do not have a running transcript and I am not able to read and record my notes word for word.  I recollect the concession of the quantum.  Therefore all of these matters are effectively in the melting pot for the determination of the Court as to whether the husband, when he returns to the witness box, can continue to be cross-examined upon T Pty Ltd related payments for office rent and other services.  That must be determined in the context of both procedural fairness to all parties and obtaining a correct asset pool upon which I will hereafter make the decision as to the add-back(s) and/or any dollar value that might be then included within the asset pool.

15. Those matters do not form part of this ex tempore judgment.  Mr North also identified the form of questioning and the allegation of dishonesty purportedly levelled at his client.  Again, they are matters that I am more inclined to deal with in the wider and extensive judgment when considering the way in which this case was presented and all of the issues that have taken so long and at such vast and increasing expense to the clients, though I well understand the lawyers in this case have acted on instructions. 

16. I will dismiss Mr North’s objection.  I do so reluctantly.  I record the objection was properly taken however the overwhelming duty of the Court within the limited time left for the cross-examination of the husband is to have before the Court information, documentation and evidence upon which a final determination can be made.

17. I am satisfied that the husband himself is not disadvantaged because of his knowledge of his own affairs of the rental and other services that he has paid.  I have carefully deliberated upon the case that he is expected to meet and the way in which it has been, I consider, somewhat unfairly directed towards Mr North.  Nevertheless the balance and outcome that is just is in favour of rejecting Mr North’s submission.

18. I will allow evidence of T Pty Ltd payments to be before the Court provided it is in a convenient and simple form and is put to the husband up to 4 January 2013.  Mr Geddes advises the Court that can be done in five minutes or thereabouts.  I have my doubts but I must trust Senior Counsel.  I so rule and I will have these brief ex tempore reasons transcribed.  I will provide them to lawyers as soon as possible.  I will incorporate this ruling within my final judgment when it is delivered so that all appeal points are preserved to both parties.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 1 February 2013.

Associate: 

Date:  4 February 2013.