Silba and Silba

[2007] FamCA 474

FAMILY COURT OF AUSTRALIA

SILBA & SILBA [2007] FamCA 474

FAMILY LAW - PRACTICE AND PROCEDURE - Case management and costs of single expert witness – Cost of proceedings

Family Law Act 1975

APPLICANT: Mrs Silba

RESPONDENT: Mr Silba

FILE NUMBER: DGF 1303 of 2005

DATE DELIVERED: 16 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 16 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Sweeney

SOLICITOR FOR THE APPLICANT: White Cleland

COUNSEL FOR THE RESPONDENT: Mr N. James

SOLICITOR FOR THE RESPONDENT: Kiatos & Co

Orders

1. That the wife have leave that may be necessary to cause a subpoena to issue to the proper officer of the S Family Trust (“the trustee”) to produce the documents described part “F” of the Form 12 filed on behalf of the wife on

   
   

   9 August 2006, a copy of which is marked exhibit “A” and annexed to this Order, such subpoena to be returnable in the subpoena list on 5 June 2007 and, in the event that there is any objection to produce documents or matters which are outside the delegated powers of the Registrar presiding in the subpoena list, the parties be at liberty to contact my Associate … ( … to see if I am available to determine the objections.

2. That notwithstanding previous non compliance with Rule 19.23 of the Family Law Rules 2004 the husband have until 4pm on Wednesday 23 May 2007 to file and serve a notice disputing the itemised costs account submitted by the wife and I mark the itemised costs account exhibit “B” and direct remain on the Court file. IT IS NOTED THAT the husband acknowledges service on him of the itemises costs account on 18 October 2006.

3. That this matter be referred to the Costs Registrar, in chambers, on Friday 25 May 2007 to be set down for the next appropriate costs event which will lead to a quantification of costs payable by the husband pursuant to paragraph 15 of the Order made on 14 September 2006.

4. That by 4pm on Wednesday 23 May 2007 the husband provide to the wife, via their respective solicitors the documents for execution by the wife to transfer to him or at his direction the Ford Fairmont motor vehicle registration number … (pursuant to paragraph 9 of the Orders made on 14 September 2006). Upon the documents being submitted to her solicitors, the wife promptly execute the documents and return them to the husband, via the parties respective solicitors.

5. That the time for compliance by the wife with paragraph 12 of the Order made on 14 September 2007 (pursuant to which the wife was to deliver specified items as to the husband), be extended to Thursday 17 May 2007 at 7:30pm and take place at the wife’s residence at F.

6. That for the purpose of delivery up of the chattels referred to in the preceding Order the wife will ensure that the items are boxed, with the exception of the mountain bike, and placed inside the fence line to the property adjacent to the gate to the property and covered by plastic in the event of inclement weather.

7. That for the purpose of collecting the items referred to in paragraphs 5 and 6 hereof, the husband will attend the wife’s residence at F tomorrow evening with a trailer large enough to carry the items away.

8. That in the event that the items referred to in paragraphs 5 and 6 hereof are not removed by 8:30pm tomorrow evening, the wife’s obligation to deliver those items to the husband is, subject to any further Order made by the Court, at an end.

9. That in the event that the husband is unable to provide any of the documents described in paragraph 1(a) and notwithstanding that he is under some other obligation to produce such documents (such as financial statements for N Pty Ltd or BAS statements) he file and serve an affidavit within 21 days explaining why those documents are not in existence or cannot be produced.

10. That the parties do all acts and things necessary to retain a single expert witness to value the real property at M in the state of Victoria and that report:-

    (i)Be completed within 3 weeks and be immediately released to the parties;

    (ii)Be prepared at the expense of the husband initially and the wife reimburse to the husband one half of the reasonable costs of the report upon determination of the extant applications for alteration of property interests.

11. That the parties and their legal practitioners attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Melbourne Registry on 27 June 2007 at 11am.

12. Each party must exchange at least 14 days before the Conciliation Conference the following documents if relevant and not already exchanged:

    (a)the party’s three most recent taxation returns and assessments;

    (b)any superannuation documents for each superannuation interest of the party, including:

    (i)the completed Superannuation Information Form;

    (ii)for a self-managed superannuation fund, the trust deed and the last three financial statements;

    (c)for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

    (d)for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 any Business Activity Statements for the 12 months ending immediately before the first court date;

    (e)for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s memorandum and articles of association;

    (f)for any trust, the trust deed;

    (g)for any partnership, the partnership agreement;

    (h)a market appraisal of any item of property in which a party has an interest;

    (i)All documents containing evidence about:

    (i)the financial matters mentioned in the party’s Financial Statement (Form 13) and the Conciliation Conference Document completed by the party for the conference;

    (ii)financial contributions made at the commencement of cohabitation;

    (iii)any inheritances, gifts or compensation payments received during cohabitation;

    (iv)any purchase or disposal of property in the 12 months prior to and since separation;

    (v)any increase or reduction of liabilities since separation; and

    (vi)the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value.

13. That each party exchange a market appraisal or valuation of any asset in dispute no later than 14 days before the conciliation conference.

14. I DIRECT that in the event there are any financial matters which are not resolved at the conclusion of the conciliation conference the Registrar who convened the conference conduct a Pre Trial Conference at which the matter is fixed for final hearing this being a matter which received a Trial Notice Listing on 19 April 2007 and was adjourned to a date to be fixed.

15. That the husband pay the wife’s costs of and incidental to the application of 18 April 2007 fixed in the sum of $3520.55 and such costs be paid by 20 June 2007 direct to the solicitors for the wife.

16. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the Court file.

17. That there be orders in terms of paragraphs 1 and 3 the Minutes of Orders dated 16 May 2007 (“the Minute”).

IT IS DIRECTED:

1. That the Minute be placed upon the Court file and marked “Exhibit C”.

2. That the solicitors for the applicant wife do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 2 days.

3. That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.

MINUTE OF ORDERS OF 16 MAY 2007

1. That the husband provide to the wife within 21 days:

   (a)Copies of the Financial Statements (Profit and Loss Statements and Balance Sheets) for N Pty Ltd for the last 3 financial years;

   (b)All BAS Statements filed by him for the last 3 years

   (c)Notes of any meetings of officeholders of N Pty Ltd in the last 3 years;

   (d)Statements for the National Australia Bank accounts referred to in paragraph 55 of his affidavit filed 11 May 2007 for the last 3 years and any loan application referrable thereto.

   (e)His personal taxation returns for the financial years 30 June 2001 to date;

   (f)All credit card statements on credit cards in his name for the last 3 years;

   (g)Chess Statements or proof of ownership or sale of E shares and any other publicly listed shares in the last 3 years.

2. A sealed copy of these orders be served on the Trustee C/- of Ms G, Solicitor and Mr B of T Company as soon as practicable.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 1303 of 2005

MRS SILBA

Applicant

And

MR SILBA

Respondent

REASONS FOR JUDGMENT

(ex tempore)

Costs of the single expert witness

1. After discussion with counsel, the only matter that remains for me to decide is who should be responsible for the cost of a single expert to be appointed to value the commercial property at M. 

2. The wife seeks that initially she be relieved from paying for one half of the cost, that the husband bear all of the cost but that he be entitled to a reimbursement of up to 50% of that cost.  The wife proposes that she pay the husband from the proceeds of any orders altering property interests. 

3. The husband contends that the wife ought to pay one half of the costs up front. 

4. The wife, as I understand it, has an income of some $450 per week gross from the commercial property at M, and some $300 per week in Centrelink payments.  She has the care and sole financial responsibility for three children aged 9, 11 and 13.  Through counsel, the wife says that the husband has not paid any periodic child support, nor contributed in payments to the wife to the upkeep of the children since July 2006.  The costs borne by the wife include the attendance of the children at Catholic schools. 

5. The husband alleges in paragraph 102 of his affidavit sworn on 11 May 2007 that:

   In addition to the wife's sources of income, the wife also receives approximately 200 to 300 dollars in cash per week in respect to her work as a masseuse. 

   The wife denies this allegation.

6. I am informed by counsel for the husband that his income is $52,000 per annum from all sources.  That is $1000 per week. 

7. Both parties are in rental accommodation and neither party cohabits with anyone else, although the husband alleges that the wife receives some financial support from someone with whom she keeps company.  It is not the responsibility of any boyfriend of the wife to pay for a property valuation either directly or indirectly. 

8. I am not satisfied, given the responsibility that the wife has to care for the three children of the marriage, that she would have surplus funds with which to meet the cost of one half of the single expert's report.  I do not, however, consider it appropriate that her half be met only out of the proceeds of any property settlement.  It may be that the wife does not receive an order in her favour for an alteration of property interests or that there are no proceeds to be paid out to her.  

9. The appropriate order is for the husband to pay now and for the wife to reimburse him for half that cost upon determination of the outstanding applications for alteration of property interests.  If there is to be a payment to the wife which is postponed for 30 or 60 days and the trial judge is satisfied that the husband ought to wait until then, that can be factored into the final orders. 

10. The orders sought by the wife did not include a date by which the single expert report be done.  That may have been because it is uncertain when the matter will be finally listed for hearing in this court. 

11. It is agreed between the parties through their counsel that the valuation of this commercial property can be obtained in three weeks. 

Case management

1. It seems appropriate to me that this matter proceed to a pre-trial conference as soon as possible providing that the parties have first had some opportunity to conciliate the matter.  I am advised that there have been two conciliation conferences that have not proceeded.  I will refer the matter to another conciliation conference on 27 June 2007 at 11 am before Registrar Riddiford.  The wife holds out no hope of a settlement.  I hope that she is wrong.  However, in the event that there is no agreed and final resolution between the parties, I intend that the matter to proceed directly to a pre-trial conference.  That means that the extra opportunity to conciliate will not result in any further delay in determination of the matter or, at least, the listing of it for final hearing. 

2. I will request that the Registrar conduct a pre-trial conference to set down for final hearing any matters which remain unresolved. 

Costs

1. An application is made by the wife that the husband pay her costs of the application in the sum of $3520.55.  That application is opposed.

2. The quantum of costs is not in issue.

3. The issue is the liability for the husband to make any contribution to the wife's costs today is in issue. 

4. The proceedings that are before the court were those instituted by the wife on 18 April 2007.  In that application she sought that the matter be listed as an undefended final hearing.  The wife has not proceeded with the application in those terms in the face of the husband having filed documents on 11 May 2007 which have gone some way towards compliance with previous orders that the husband make discovery of certain documents.  

5. I am advised by Mr James of counsel who appears on behalf of the husband that the husband was served with the relevant orders which required discovery some two days after the date of compliance had passed.  That is, the orders made on 21 November 2006 required the husband to comply with orders for discovery by 11 December 2006 and the husband says that he was not served until 13 December 2006.  Counsel for the wife says that the husband had become unrepresented in circumstances where the wife’s practitioners did not know where or how to serve the husband.  I note that the next document filed after the orders of 21 November 2006 is, in fact, a Notice of Address for Service for the husband 19 April 2007. 

6. In any event, in all of time that has passed since the husband was served with the order made 21 November 2006, he did not do anything to comply with the order for discovery until late last week.  I am satisfied that this left the wife in the situation where she had to attend court today to ready the matter for a final hearing on the basis that the husband may now be a participant and that this was notwithstanding that the husband has made some documents available. 

7. I take into account the matters under s.117(2A) in considering whether there are circumstances that justify me making an order that the husband pay part or some of the wife's costs. 

8. The financial circumstances of the parties are matters that I have already outlined earlier in these reasons.  It is clear to me that neither party can afford costs for proceedings that can be avoided.  Probably the most significant factor in the application for costs is the conduct of the proceedings by the husband to date.  He has failed to take reasonable steps to comply with orders that are in furtherance of his obligations to make full and frank disclosure of financial matters. 

9. This is a matter where the husband ought to pay the wife's costs of and incidental to the application.  As there is no argument as to quantum, I will order that the costs be fixed in the sum of $3520.55. 

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered 16 May 2007 will for all publication and reporting purposes be referred to as Silba & Silba.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  24 May 2007