Sheridan and Sheridan (No. 2)

[2013] FamCA 484

FAMILY COURT OF AUSTRALIA

SHERIDAN & SHERIDAN (NO. 2) [2013] FamCA 484

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – where the husband seeks an adjournment of the hearing due to injuries that will make it difficult for him to participate effectively in the hearing – where an adjournment is also necessary due to new information contained in an affidavit tendered by the wife on the day of the hearing – orders made adjourning the matter and listing it for a further three days of hearing.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sheridan

RESPONDENT: Mr Sheridan

FILE NUMBER: ADC 2309 of 2009

DATE DELIVERED: 17 June 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. During the period of the adjournment the husband is prevented from entering or coming within 200 metres of the property at … G Street, Town E in the State of South Australia SAVE AND EXCEPT in the company of any police officer attending upon the premises for the purpose of police investigation.

2. The wife is at liberty to arrange, organise and give instructions about the necessary cleaning and repairs to the house and maintenance for the garden at … G Street, Town E in the State of South Australia.

3. The wife provide to the husband and to the Court copies of all accounts and receipts for payment of work done including shampooing carpets, rubbish removal and the necessary repairs at … G Street, Town E in the State of South Australia such accounts to be taken into account in the adjustment of final property settlement orders.

4. The husband’s weekly payments from Work Cover be garnisheed to cover the below listed payments:

   4.1The husband pay TWO HUNDRED AND FIFTY DOLLARS [250.00] per week towards the mortgage held by Westpac Banking Corporation (“Westpac”) for the loan on the block of land at Lot …, C Street, Town D in the State of South Australia, Loan number …41;

   4.2The husband pay weekly the amounts due on the following default mortgages held by Westpac:

   4.2.1… I Street, Town H in the State of South Australia, Loan number …37, in the amount of FORTY TWO DOLLARS [$42.00] per week;

   4.2.2J Street, Town H in the State of South Australia, Loan number …76, in the amount of THIRTY THREE DOLLARS AND FIFTY CENTS [$33.50] per week;

   4.2.3K Street, Town L in the State of South Australia, Loan number …51, in the amount of SEVENTEEN DOLLARS AND FIFTY CENTS [$17.50] per week.

5. All payments owing by WorkCoverSA, 400 King William Street, Adelaide in the State of South Australia to MR SHERIDAN born on … 1961 upon or after service of a sealed copy of this Order on the garnishee are attached to the extent of THREE HUNDRED AND FORTY THREE DOLLARS [$343.00] per week and the garnishee is to promptly pay any such amounts to Westpac Banking Corporation to be attributed to the accounts of the husband and wife as set out in paragraph 4 hereof.

6. Upon the settlement of the sale of the property at Town D in the State of South Australia the wife is to forthwith notify WorkcoverSA that the garnishee order has ceased upon the settlement of the sale of the Town D property.

7. Within seven [7] days of any change of the husband’s employment or significant change in his income being received the husband inform the wife in writing of such change UPON CONDITION that the wife is restrained and an injunction is granted restraining the wife from communicating to anyone connected with the husband’s employment without further order of this Court.

8. Further consideration of paragraph 6 of the wife’s amended Application in a Case filed on 17 June 2013 is adjourned to the further hearing of the trial.

9. The wife is at liberty to provide information, including providing them with copy documents filed in these proceedings or material subpoenaed in these proceedings, to the South Australian Police.

10. Leave is given to the wife to issue a subpoena to the ANZ Bank for documents in relation to the husband being documents relating to any transactions or dealings with the husband since November 2012.

11. Within fourteen [14] days from today the husband disclose in writing to the wife details of any storage sheds to which he or any of his related entities have had access or used in the last two [2] years.

12. The husband sign all documents required to sell the block of land at Town D in the State of South Australia including the agreement that both parties will pay for any conveyancing fees in relation to the sale or proposed sale of the land.

13. Within fourteen [14] days from today the husband provide to the wife copies of all Water, Electricity and Council rates for … G Street, Town E in the State of South Australia which have been paid by him since November 2012, together with copies of outstanding Water, Electricity and Council Rates for … G Street, Town E in the State of South Australia and that all outstanding debts in relation to Water, Electricity and Council rates for … G Street, Town E be paid by the husband within twenty-one [21] days of receipt of any account relating to the same.

14. The husband provide copies of any arrangements made by the husband for delayed payment of the outgoings of same to the wife within seven [7] days of all such correspondence taking place.

15. On or before 4.00 pm on 26 July 2013 the husband file and serve an affidavit setting out full particulars of his current financial circumstances and an affidavit of discovery, including but not limited to:

    15.1all evidence and documents in relation to the motor vehicle (referred to in the wife’s affidavit) or the use of the same;

    15.2the source of funds for his living expenses, including the source of funds for his current residence at the property at … C Street, Town M in the State of South Australia;

    15.3travel to Queensland during 2013;

    15.4all WorkCoverSA claims and payments;

    15.5employment particulars;  and

    15.6all taxation particulars.

    UPON NOTING failure to comply with this order the Court may draw adverse conclusions in the finalisation of the matter.

16. The said affidavit of the husband to also contain the husband’s response to the affidavit of the wife and the annexures thereto being the affidavit sworn on 27 June 2013 and the annexures contained therein.

17. Both parties are required to give full inspection of all relevant documents in accordance with the Rules and in any event at least fourteen [14] days before the resumption of trial.

18. Leave to the wife to file an affidavit of any witness upon which she seeks to rely in relation to the matters raised in her affidavit received today, including but not limited to the affidavit of the boarder Mr N and leave to the wife to file any further affidavit of herself PROVIDED THAT all affidavits upon which the wife seeks to rely are filed and served by 4.00 pm on 16 August 2013.

19. The trial is further adjourned part heard to Tuesday 10 September, 11 September and 12 September 2013 before the Honourable Justice Dawe.

20. Within seven [7] days from today the husband to file and serve an appropriate Address for Service UPON NOTING the husband gives his address as … C Street, Town M in the State of South Australia.

21. By 31 July 2013 the husband file with the Australian Taxation Office and provide copies to the wife of his taxation returns for years ended 30 June 2012 and 30 June 2013.

22. By 31 July 2013 the wife file with the Australian Taxation Office and provide copy of the same to the husband her taxation return for year ended 30 June 2013.

23. During the period of the adjournment the wife is at liberty to reside in the property at … G Street, Town E in the State of South Australia.

IT IS FURTHER ORDERED BY CONSENT THAT

1. Both parties are restrained and an injunction is granted restraining them from discussing these proceedings or matters arising in relation to these proceedings with the children of the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheridan & Sheridan (No. 2) 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 ADELAIDE

FILE NUMBER: ADC 2309 of 2009

Ms Sheridan

Applicant

And

Mr Sheridan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of an Application in a Case filed by the wife.  However, the first application I have is an oral application from the husband to adjourn the trial hearing which was set down for today.  Today’s hearing was arranged for the Court to consider the updated information in relation to the parties’ assets and liabilities in order to determine final orders which have been outstanding for a considerable period of time.  The matter has been fully heard before, and judgment reserved, before it was re-opened, and then again re-opened, for me to hear further evidence due to changes in the parties’ circumstances.

2. The husband produces today to the Court, a letter dated 14 June 2013 addressed “to whom it may concern”.  It asserts that due to the injury the husband has allegedly suffered, it would be very difficult for him to sit and give cognitive attention “in the coming two weeks”.  It concludes that the husband will not be fit to attend any Court activity within the coming two weeks.  Attached to that letter is a WorkCover Medical Certificate indicating that the husband, when employed with Business O, suffered an injury on 24 May 2013 while lifting a product of the business, which resulted in a strained neck and an injured right shoulder.

3. There is also a letter dated 11 June 2013 attached to the doctor’s certificate that refers to sessions to be undertaken by the husband, as well as the medication he has been prescribed, including significant painkillers, and Valium, Endone and Panadeine Forte.  The difficulty is the short notice to the other side of the request for the adjournment.  Based upon the medical certificate I am in no position to contest the material put in the letter from Dr P.  It will be necessary to adjourn the further conclusion of the hearing of this matter to a time when the Court will be able to ensure that fairness is done to both sides.  The husband who is unrepresented will need significant physical cognitive ability to present his case and answer the material provided by the wife.

4. What also makes an adjournment necessary is the material which is now before the Court in the fresh affidavit filed by the wife, being the affidavit of the wife received today which appears to be sworn on 17 June 2013.  That affidavit raises issues in relation to the WorkCoverSA monies received by the husband in his previous and current WorkCoverSA claim.  It also raises significant issues in relation to the condition of the property in which the husband was previously residing at G Street, Town E, and issues concerning the husband’s financial circumstances.  In particular, the affidavit refers to the police attending at the property at G Street, Town E when the wife discovered material in the garage, and subsequently there was material discovered in the main bedroom of the property in which cannabis equipment was located.

5. There are issues concerning the affidavit which cannot be dealt with because much of the material in that affidavit appears to relate to hearsay evidence from the person who was described as a boarder in the former matrimonial home.  The husband has not had an opportunity other than at the bar table to put to the Court his response to the serious matters raised in that affidavit.  I would not be able to conclude the hearing of the matter today in any event. 

6. I therefore propose to adjourn the matter and list it for a further three days of hearing to test the oral evidence.  This will give the husband an opportunity to comply with the orders that I made in May 2013 requiring the parties to file and serve affidavit material upon which they seek to rely.

7. The orders therefore in relation to the Application in a Case will be orders which will be made during the period of the adjournment.  The first order that the wife seeks is that the husband be prevented from entering or coming within vicinity of the property at Town E.  The husband indicated he was not opposing such an order. 

8. The second order that the wife seeks is an order that she be at liberty to have the property cleaned and the gardens done, and to dispose of material related to the growing of cannabis, and that the husband pay for the cost of the same (paragraph 3). 

9. It is clear from the information in the wife’s affidavit (and the husband says he has not been living at the premises since March 2013) that he has been living elsewhere. 

10. It is clear from the affidavit material that cannabis growing equipment was found in both the shed and the home itself.  It therefore would be quite appropriate for the cleaning to be done and the gardens to be repaired to an appropriate state.

11. The wife will be free to organise the work and on provision of the accounts and receipts in relation to the cost of any work carried out by any other persons, I will give due consideration to such costs being met from the sale proceeds of the Town D property, or by way of final adjustment of property settlement matters in due course.  To that extent, I indicate my preliminary view that it should not be the sole cost of the wife that the Town E property is restored to a reasonable state.

12. In relation to paragraph 4, the wife is seeking an order that the garnishee order which was previously made in relation to WorkCoverSA continue and in relation “to any business or persons named”.  Her oral application was that it related to WorkCoverSA and Business O. 

13. The husband says that he is not receiving any payment from Business O, but is again receiving WorkCoverSA.  The order of May 2013 that I made in relation to garnisheeing the WorkCoverSA payments to pay the Westpac loan in relation to the Town D property is therefore continued.

14. Paragraph 5 of the orders sought is that the husband inform the wife of changes to his jobs or payment arrangements within 7 days.  The husband opposes this order and says from the bar table that the wife has in the past telephoned his place of employment and made disparaging remarks about him.  I propose to make an order that the husband inform the wife of any changes, but restraining the wife from communicating with any employment office, or any person involved in the husband’s employment without further order of the Court.

15. The next order that the wife seeks is the return of furniture to the Town E property, including the coffee machine and microwave.  The husband from the bar table disputes possession of the significant items which have been the subject of argument previously.  Until the evidence is tested in relation to the whereabouts of the items, I am not in a position to make such an order, and therefore will adjourn further consideration of that to the further hearing of the trial.

16. Paragraph 7 of the orders sought is the wife seeking liberty to disclose information to the police, including in relation to subpoenaed material.  Without such an order the wife is restrained from using any material in these Court proceedings other than for the purposes of these proceedings.  In relation to the disclosure of material to the police, it is always in the best interests of the community at large for all information relevant to any investigation to be made available to the police department.  The husband has not provided any valid opposition to such an order.

17. In relation to the leave to issue the subpoena, submissions have been put to the Court that the ANZ bank information may assist the Court in determining issues concerning the assets, liabilities and income of the parties.  I therefore give leave to the wife to issue a subpoena to the ANZ bank for documents in relation to the husband, being documents relating to any transactions or dealings with the husband since November 2012.

18. In relation to the storage shed, if the husband has used storage sheds during the last two years, then such information is relevant to establishing the assets of the parties.

19. In relation to the first paragraph 10, “signing document in relation to the [Town D] block of land” this relates to the conveyancing fees.  The husband says he has not been asked to sign it.  The wife says that if he does not sign it, she may be liable for the whole of the funds.  Any adjustment necessary to be made upon the sale of the land at Town D is a matter that can be dealt with in the final hearing.

20. In relation to the next paragraph 10 (which I will describe as paragraph 11) the wife seeks an order that the husband disclose all outstanding water, electricity and council rates in relation to the Town E property, and that they be paid by the husband prior to the sale of the property at Town D.  It is relevant for the determination of these proceedings that the Court has available information in relation to all outgoings and expenses incurred and paid by the parties.  The Court has only recently been told that the husband is not occupying this Town E property, and is now informed that the tenant, or boarder has been resident in that property.  It is appropriate that the Court make an order requiring the husband to disclose the necessary accounts.

21. In relation to the adjournment, I extend the time for the husband to comply with the orders of 30 May 2013 which provided that he had 10 days to set out full particulars of his current financial circumstances, and an affidavit of discovery.  I extend the time for the husband to comply with that order, I will make a fresh order in those terms.  Because of my lack of availability, I propose to give the husband until 26 July 2013 to comply with these orders, and then give the wife an opportunity to respond and file any further affidavit material arising from subpoenaed material or other documents as she is advised.

22. Further upon noting the failure to comply with this order, the Court may draw adverse conclusions in the finalisation of the matter. 

23. Both parties are required to give full inspection of all relevant documents in accordance with the rules, and in any event, at least 14 days before the resumption of the trial. 

24. I give leave to the wife to file an affidavit of any witness upon which she seeks to rely in relation to the matters raised in her affidavit received today, including but not limited to the affidavit of the boarder “[Mr N]”.  Leave for the wife to file any further affidavit of herself, provided that all affidavits upon which the wife seeks to rely are filed and served by 16 August 2013.

25. Due to my unavailability, I am adjourning the matter to commence at 10.00 am on Tuesday 10 September 2013, Wednesday 11 September 2013 and Thursday 12 September 2013 for a further three days of hearing. 

26. I will note that the husband says his current address for service is C Street, Town M.  The husband to file and serve an appropriate Address for Service on the Court file within seven days.

27. I make an order that by 31 July 2013, the husband file with the Taxation Office his taxation returns for the years ended 30 June 2012 and 30 June 2013, and provide copies to the wife within seven days of their being filed, and order the wife to file her tax returns for the year ended 30 June 2013, and provide copies of the same to the husband by 31 July 2013. 

28. I will also simply note that the wife has permission to reside in the property at G Street, Town E during the period of the adjournment.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 June 2013.

Associate: 

Date:  24 June 2013