St Claire and St Claire

[2011] FamCA 920

FAMILY COURT OF AUSTRALIA

ST CLAIRE & ST CLAIRE [2011] FamCA 920

FAMILY LAW – PRACTICE AND PROCEDURE – Application to join third party

APPLICANT: Ms St Claire

RESPONDENT: Mr St Claire

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9777 of 2010

DATE DELIVERED: 2 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Janover

SOLICITOR FOR THE APPLICANT: Lewis Allen Janover

COUNSEL FOR THE RESPONDENT: Mr Davis

SOLICITOR FOR THE RESPONDENT: Barbayannis Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Clark

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:: Corridon Solicitors

Orders

IT IS ORDERED

1. That all applications for final orders be adjourned for hearing as the first case in the list commencing on 2 April 2012 at 10 am as an eight day matter.

2. That the matter be listed for mention at 9.00am on 27 March 2012.

3. That by 4 pm on 21 December 2011 the applicant file and serve upon all other parties:

   (a)the affidavits of evidence in chief of all witnesses relied upon; and

   (b)a financial statement that complies with chapter 13 of the Family Law Rules.

4. That the applicant pay all setting down and trial fees by 4 pm on 21 December 2011.

5. That by 4 pm on 11 November 2011 the respondents file and serve upon all other parties any Amended Response to the Applicant’s Further Amended Initiating Application.

6. That by 4 pm on 15 February 2012 the respondents file and serve upon all other parties:

   (a)the affidavits of evidence in chief of all witnesses relied upon; and

   (b)a financial statement that complies with chapter 13 of the Family Law Rules.

7. That by 4 pm on 24 February 2012 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

8. That by 4 pm on 23 March 2012 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

9. That no party file any further material other than as provided by these orders without leave of the Court.

10. That the husband and wife attend upon a psychiatrist for the purposes of a report as to their respective mental health, such psychiatrist to be agreed between the husband and the wife and the Independent Children’s Lawyer and failing agreement by 11 November 2011, as determined by the Independent Children’s Lawyer and that such attendances and report be at the initial expense of the husband and the issue of the payment of the account be an issue for trial.

11. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

12. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

13. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

14. That the practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4 pm on 30 March 2012 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of assets and liabilities; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

15. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

16. That the wife discover the following documents in her possession custody or control:

    (a)any document which is the property of the second respondent relevant to these proceedings;

    (b)any document which is the property of the husband relevant to these proceedings.

    (c)Without limiting the foregoing

    i.Any business record of the second respondent or the husband;

    ii.All correspondence notes and records passing between the husband and his former solicitor … pertaining to the Family Law proceedings of 2003 and 2004 and 2005 or related to that proceeding;

    (d)any document which the wife intends to rely upon in these proceedings at trial;

    (e)the “personal computer” records previously located in the computer in the study of the matrimonial home.

17. That in addition to the costs letter referred to above, by 4.00pm on 11 November 2011, each party exchange with the other details of all costs incurred in relation to criminal proceedings, the intervention order proceedings between the parties or involving the parties as well as their Family Law proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9777 of 2010

Ms St Claire

Applicant

And

Mr St Claire

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I will give just some very brief reasons on the record now.  This is an application filed this day as part of the first day of hearing in this particular case.  It is an application that has arisen out of the wife’s further amended initiating application filed on 27 September in which she sought to join by adding Mr G’s name to the application and seeking orders against him.  There is evidence before me that she has had difficulty through her advisors in serving Mr G.  There is, attached to the affidavit of the wife, an email from a network process server dated 25 October 2011 in which the agent says that he attended at a Suburb P New South Wales address and spoke to a female receptionist who said that Mr G was interstate and never came to the address which the process server described as a personal services business, and she would give no further information. 

2. On the basis of the wife’s evidence that during the time the parties were together, Mr G stayed with his parents at C Street, Suburb B and she had no reason to expect that the documents, if were sent there, would not be brought to his attention, and in addition that Mr G has a brother who is employed in the legal field in Melbourne and who has arranged loans for him in the past.  It seems logical if I make an order for substituted service the documents would most likely come to his attention.  I am comforted by the fact that issue associated with Mr G is really about two things, one the question of any liability that he may claim against either the husband and / or the wife, and to the extent that he remains silent in the proceedings, it is conceivable that section 79(10) might not be applied and he might not end up being able to prove that he has such a claim. 

3. In addition, the matter relating to a caveat is one of the orders sought by the wife or more importantly, its removal.  And the issue under section 106(b) is pleaded by her to set aside what purports to be the instrument that gave rise to Mr G lodging the caveat on that basis.  Again, if Mr G does not attend the proceedings, one might conclude that he is not really serious about prosecuting the argument in relation to the purported agreement, which would then mean that there is no basis for the caveat to remain.  On that basis I will make orders for substituted service as I have outlined.

I certify that the preceding three
(3) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Cronin
delivered on 2 November 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………