Travenski and Travenski

[2009] FamCA 495

FAMILY COURT OF AUSTRALIA

TRAVENSKI & TRAVENSKI [2009] FamCA 495

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Interim security for costs order

Family Law Act 1975 (Cth)

APPLICANT: MS TRAVENSKI

RESPONDENT: MR TRAVENSKI

FILE NUMBER: MLC 8206 of 2007

DATE DELIVERED: 1 JUNE 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 1 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS STOIKOVSKA

SOLICITOR FOR THE APPLICANT: HARWOOD ANDREWS

COUNSEL FOR THE RESPONDENT: MR KIERNAN

SOLICITOR FOR THE RESPONDENT: MACGREGOR SOLICITORS

Orders

IT IS ORDERED BY CONSENT:

1. THAT as and by way of a partial settlement of property a sum of $20,000 be forthwith distributed to the solicitors for each of the husband and the wife from the invested monies arising from the sale of the home at W and the balance of monies and interest thereafter be retained on trust by the wife’s solicitors for the parties pending further order of the Court.

IT IS FURTHER ORDERED (NOT BY CONSENT)

1. THAT the parties and their solicitors forthwith provide mutual and informal discovery of all financial and other documents relevant to the proceedings and in particular documents of and related to the bank accounts with the Commonwealth Bank of Australia and the ANZ Bank as are identified in paragraph 51 of the wife’s affidavit filed 20 May 2008.

2. THAT within twenty-eight (28) days the solicitors for the wife:

   a.make, file and serve an updated affidavit of the wife as to her current emotional and psychological health and wellbeing and as to the monies held by or on her behalf in each of the bank accounts identified in order 2 hereof;

   b.an updated affidavit of Mr G, psychologist, as to his counselling, treating and diagnosis of the wife’s emotional and psychological health and welfare;

   c.an affidavit of Dr L, general practitioner as to the wife’s state of health and medication.

3. THAT within a further twenty-eight (28) days the solicitors for the husband make, file and serve:

   a.an updated amended response, including a defence to the Statement of Claim filed on behalf of the wife;

   b.a trial affidavit of the husband incorporating all matters and facts upon which he intends to rely or in response to matters put before the Court on behalf of the wife;

   c.an updated Form 13 financial statement.

4. THAT liberty be reserved to the solicitors for the husband to apply to Young J, consequent upon the filing of any further affidavits by Mr G or Dr L, for the wife to be independently assessed or examined as to her emotional, psychological, well being or other matters which she has elected to put in issue in the trial.

5. THAT on or before 14 August 2009 the solicitors and counsel for the husband make, file and serve such a submission as to the extent and availability of accrued jurisdiction, and the exercise thereof by this Court on the facts of this case, as they intend to rely upon in legal argument.

6. THAT within a further fourteen (14) days, by 28 August 2009, the solicitors and counsel for the wife respond in writing to such legal submission.

7. THAT the Court prepare a Gaol Order to facilitate the attendance of the husband at Court on Monday 21 September 2009 for the commencement of the three (3) day defended hearing (it being noted that the wife has this day delivered instructions to her legal advisors that she has no objection or issue with the attendance of the husband at Court, under proper security, and for the trial to proceed in the usual manner of cross examination and the hearing of evidence in the presence of both parties).

8. THAT the Court arrange for an appropriate Macedonian interpreter to be present at Court for the duration of the hearing or otherwise as required.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the solicitors for each of the parties.

10. THAT if any documents are to be subpoenaed to Court for use in the proceedings then all such subpoenas are to be filed and issued prior to Friday 31 July 2009 and made returnable before a Registrar at least fourteen (14) days before the date fixed for hearing of the defended proceedings.

11. THAT all extant defended applications be consolidated and listed for defended hearing before Young J on 21 September 2009 (a three (3) day defended hearing).

12. THAT the application in a case filed on behalf of the husband on 26 May 2009 be otherwise dismissed.

IT IS NOTED:

A.THAT counsel have assured the Court that they will use their best endeavours to have fruitful and informed discussions on all financial issues prior to the matter being listed on 21 September 2009 and it is not envisaged that the matter will be stood down for any further discussion or obtaining of instructions on that day.

IT IS NOTED that publication of this judgment under the pseudonym Travenski & Travenski is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8206 of 2007

MS TRAVENSKI

Applicant

And

MR TRAVENSKI

Respondent

REASONS FOR JUDGMENT

1. The matter of Travenski & Travenski is before me for what was to be a defended hearing.  Mr Kiernan of counsel appears for the husband, Ms Stoikovska of counsel appears for the wife.  The wife is in court, the husband appears by way of video link from the … Correctional Centre at … where he is currently an inmate.

2. The husband had requested an interpreter and there is an interpreter in court who has been sworn and is available to and has assisted the husband and counsel for the husband during these proceedings.  The wife's solicitors are present in court, the husband's solicitors are absent. 

3. I do not intend to set out in any detail the background to this matter, save to observe that it was a marriage of some 19 years.  There is one now adult child of the marriage, a son.  The parties separated in June 2007 and they are now divorced.  The wife continues to live with her current de facto, Mr A, in a property which Mr A is now purchasing but in respect of which, particulars are not otherwise before the court.

4. This matter was listed as a defended hearing before me on 4 July 2008.  It was not ready and was adjourned to 4 August 2008 at which time the matter was adjourned pending the outcome of criminal proceedings as a result of which the husband is now incarcerated.  The trial was fixed before me to commence today, and it only became apparent in the last few days of the significant lack of detail and preparation.

5. Both counsel today agree that the matter is not prepared for hearing and there remains a number of issues, including the funding of solicitors and counsel to prepare the trial for hearing. 

6. Dealing first with the bundle of documents before the court from the wife, there was recently filed a further amended application for final orders dated 25 May 2009.  By the submission of her counsel and by agreement, that document is to remain before the court as the basis of orders sought.  For clarity and arising out of discussions with counsel, it is agreed that the document should be read on the basis that the wife seeks 80 per cent as a section 79 division in her favour of all of the property, money and assets of the parties.

7. The document is not to be read as that, over and above that 80 per cent, the wife seeks a further personal injuries damage payment by way of the determination of the statement of claim annexed to that amended application.  Leaving aside the issue of the court determining in its accrued jurisdiction or otherwise, that claim, which is the subject of objection by counsel for the husband, the overall claim by the wife is as to 80 per cent.  There is at this stage no particularisation of what part of that 80 per cent is made up, if any, by the claim of personal injuries pursuant to the annexed statement of claim.

8. The wife had filed various earlier substantial affidavits including those documents filed 6 December 2007, 20 May 2008 and 1 July 2008.  Together with an earlier Form 13 financial statement filed 20 June 2008.  The basis of the wife's case moving forward is that she will not rely on those documents, though of course if there are particular matters in there, she remains available to be cross-examined upon them, if relevant.

9. The wife has, on 29 May 2009 filed an amended Form 13 financial statement and an inclusive trial affidavit upon which she intends to rely.  In my discussions with her counsel, it become apparent that I initially held the consideration that the matters dealt with in paragraphs 57-63 (inclusive) thereof were insufficient and needed much care, thought and attention.

10. The husband through his counsel has additionally raised an issue that goes to the pool of assets before the court.  Aside from those monies identified in paragraph 64 of the wife's recent affidavit and primarily the invested monies from the sale of the matrimonial home in W, there are other allegations now made by the husband of bank accounts.  These relate to paragraph 51 of the affidavit of the wife filed 20 May 2008, wherein she identifies a Commonwealth Bank account and two ANZ bank accounts (in subparagraphs (d)(e)(f) thereof).

11. Accordingly and in the further affidavit that I will allow the wife to file and apart from dealing with the consequences of past actions in regard to her present emotional and psychological wellbeing, she will deal with the contents of those three bank accounts.  I clearly understand and counsel for the husband has confirmed that his client's allegations of other moneys said to be unaccounted for relate only to those three bank accounts and whether there were, or at any stage was, $134,000 or any part thereof in any of those bank accounts.  Accordingly I will leave to the wife to file a further updating affidavit within 28 days dealing with those two issues. 

12. Otherwise the witnesses for the wife may include a neurologist who filed an affidavit in June of 2008; the local medical general practitioner Dr L, who is yet to file an affidavit; and the treating psychologist Mr G, who must update his affidavit of 20 June 2008.  Other than that, the wife's current de facto has filed an affidavit which presumably will need to be updated in respect of the current residence being purchased and other relevant financial issues including his income, financial assets and support of the wife, which might mitigate other financial claims before the court.

13. As to the husband, his earlier material is now somewhat out of date.  His handwritten response before the court was filed on 4 December 2007 and I will give him leave within an appropriate further 28 day period to update both that response and his defence to the wife's statement of claim.  In the documents that comprise the court file, the husband had filed affidavits on 12 March 2008, 19 June 2008 and a Form 13 financial statement on 24 June 2008; those documents will have to be updated. 

14. The husband had also filed an affidavit of the son born in July 1989.  The son is now an adult.  The relevance in the context of a section 79 determination seems to be that there were cash moneys in the house at or about the date of the incident on 1 July 2007.  The relevant paragraph is 15 where he alleges to counting secret cash moneys which were then said to total $46,000 and which moneys he afterwards delivered to the de facto and from whence it was not returned to him or the husband, finding its way to some solicitor or wherever.  The quantum of that money remains a dispute and in that regard it may be that the son is a relevant witness, assuming his evidence to be that he actually counted the money himself before delivering same as per his affidavit.  I make no finding on those matters at this time.

15. The allegation of the husband's claim, which is seemingly wholly unsupported at the moment, is that in addition to the $46,000 cash there is another sum of $134,000 in those various bank accounts nominated by the wife in her earlier affidavit, and accordingly there must be immediately inspection and discovery of the documents, including bank statements, to ascertain the truth or otherwise of that unsubstantiated financial allegation.  Insofar as there is $30,000, it is part of the 34 which would leave approximately $100,000 to be the subject of solicitor’s investigation.

16. The other matter of importance is to understand that each party, or their solicitors, have had $10,000 paid.  Additionally, and pursuant to a partial property order when a former solicitor acted for the husband, I made an order that as and by way of a partial settlement of property the husband be paid, first the sum of $10,400, which has occurred, and secondly upon the settlement of the sale of the former matrimonial home an additional sum of $6,600.  It is unknown whether that further sum was paid to or on behalf of the husband or his former solicitors and inquiries must be made to ascertain the payment of those moneys.

17. The matter came before me today for the determination of an interim application which sought a further payment of moneys to be made to the solicitors now representing the husband.  The quantum of money was not identified in the application, but it was supported by an affidavit of the husband and of the principal of the firm of solicitors, Macgregors.  On a reading of that document it is clear that what was stated to the court was that a sum of $20,000 is needed to prepare and present this case to trial, paragraph 5 thereof. 

18. The parties have sensibly discussed out of court the issues and the wife claims 80 per cent as a maximum of the pool of assets, and as such that would mean that, without regard to earlier distributions, there may be a sum of up to $80,000 available to the husband; even if he has had $27,000, there is safety in having a further distribution.  By discussion between counsel it has been agreed that an equal sum should be paid out to both solicitors for and on behalf of their clients, and accordingly I will by consent make an order for a partial property distribution of a further sum of $20,000 to each of them.  Hopefully that will fund all aspects of litigation to and including the entirety of the three‑day trial.

19. Before I announce orders it is proper to record that this matter has simply not been diligently prepared.  I will limit my comments because I am sure there are extenuating factors on both sides, but moneys have been spent and the matter is far, far removed from being ready for a hearing, and the further affidavits required and the further orders of the court highlight that fact.  Indeed both counsel, presumably on instructions and after identifying concerns with their respective clients, have indicated that there are no explanations nor excuses for the lack of preparation of the matter, quite simply it was not done.

20. I will have that brief extempore judgment transcribed, placed upon the court file and made available to all parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: