Tregaskis and Tregaskis

[2009] FamCA 1197

FAMILY COURT OF AUSTRALIA

TREGASKIS & TREGASKIS [2009] FamCA 1197

FAMILY LAW – PRACTICE AND PROCEDURE – case management – where the issue of jurisdiction is to be dealt with as a preliminary point – applications foreshadowed by the parties – matter adjourned part-heard

APPLICANT: Ms E Tregaskis
(the substituted party for Ms S Tregaskis)

RESPONDENT: Mr Tregaskis

FILE NUMBER: ADF 1674 of 2006

DATE DELIVERED: 17 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 17 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Robinson Mason

COUNSEL FOR THE RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE RESPONDENT: Johnston Withers

ORDERS

1. That within 14 days of the date hereof the applicant disclose and produce for inspection by the respondent and his legal representatives all relevant documents in relation to these proceedings.

2. That within 14 days of the date hereof the applicant file and serve an undertaking as to disclosure.

3. That all affidavits of evidence in chief of all witnesses intended to be relied upon by either party in relation to paragraphs 1 and 2 of the Further Amended Response filed by the respondent on 3 August 2009 be filed and served by 4:00pm on 15 September 2009.

4. That leave is granted to the respondent to issue the following subpoenas to:

   a.   Ms D to produce all of her records including files and notes held in relation to S TREGASKIS (born … 1938) including in her role as an advocate;

   b.   The Director of the Multicultural Advocacy and Liaison Service of South Australia to produce all records including files and notes held in relation to S TREGASKIS (born … 1938);

   c.   The Director of G Nursing Home to produce all records including files and notes held in relation to S TREGASKIS (born … 1938);

   d.   Dr S to produce his file including any notes held in relation to S TREGASKIS (born … 1938);

   with such subpoenas to be returnable before a Registrar at 9:30am on 9 September 2009.

5. That this case be adjourned part-heard to 10:00am on 17 September 2009.

6. That leave is granted to the applicant to attend the adjourned hearing by way of telephone.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1674 of 2006

MS E TREGASKIS

Applicant

And

MR TREGASKIS

Respondent

ex tempore reasons

1. The issue is property settlement, however, there is a preliminary point of jurisdiction which arises in the further amended response filed by the husband on 3 August 2009.  In that response the husband seeks the dismissal of the application for property settlement filed on 13 January 2006.  There are alternative orders sought by way of property settlement in the event of that application not being dismissed.  When I raised the question today as to whether that matter should be dealt with as a preliminary point or whether it can be dealt with as part and parcel at the hearing on property settlement, initially it was suggested that the latter was the appropriate course, but after further discussion between bench and bar, it certainly seems to me that it should be heard as a preliminary point.

2. It may be that in an ideal situation it could have been dealt with as part of the property settlement application, but the fact of the matter is the property settlement application is simply not ready to proceed.  For example, there are issues relating to land in Greece which prevent that dispute being listed for a final hearing.  Thus it seems to me to at least get something underway here I can deal with the jurisdictional point first.

3. Now, I have been advised of the witnesses that each party seeks to call in relation to that issue and they are for the husband, the husband himself, the son of the parties, C, and one Ms V who apparently worked at the nursing home where the wife was placed some time ago.  Ms Pyke QC has also foreshadowed the need to issue a number of subpoenas.  There are three subpoenas that she seeks to issue and I will grant leave to do that.  With the estate, a list of witnesses was provided recently to the court and those witnesses will all be necessary on this preliminary point.  In addition, though, there are two other witnesses, Ms G who is the director of the nursing home and Dr S who has already provided a report.

4. Ms Pyke has also raised a need for at least one of the witnesses proposed to be called, namely, Mr H, to make his file available.  I am told that the discovery that will now be provided will contain that file and will address other matters raised by way of documents sought by Ms Pyke, but it is a matter of obviously seeing what comes out in the wash with that and thus I propose to have an adjourned hearing date where any issues in that regard can be considered.

5. There has been an order made for the parties to file the relevant undertakings in relation to documents.  The husband filed his undertaking on 12 August 2009.  The estate has not yet complied but the reason for that has been explained to me, and I accept the position. 

6. Unfortunately, I cannot give a date today for the hearing of the preliminary point, it is going to take three to four days.  Thus I propose to make orders for the filing of affidavits as well as for the provision of discovery and production of documents which is all to be done by consent and then the matter come back to me on a further directions hearing at which time I would hope to be able to list the preliminary matter for a hearing.

7. Just digressing for the moment, in relation to the property settlement issue, if that issue proceeds, then the question of the valuation of the Greek land needs to be addressed.  It has been agreed that some inquiries will be made in the adjourned period to ascertain who might be able to value that property and the cost of that.

8. Ms Pyke has also foreshadowed an application by her client to either discharge or vary injunctions that are currently in place which prevent the husband accessing property, the subject of these proceedings.  Mr Berman, likewise has foreshadowed, if necessary, an application in relation to costs to fund the proceedings.  He tells me from the bar table that there is no money or assets in the estate and that his client has been meeting the costs to date out of her own pocket.

9. Those issues may need to be aired and obviously I will try and deal with as much as I can subject to what formal applications are before me on the adjourned hearing date.

10. A minor issue, but an important one, is how this matter is currently described. I know there is an issue about jurisdiction but, as Mr Berman has referred me to, there was an order made on 12 December 2007 by Judicial Registrar Forbes whereby his Honour ordered that pursuant to s 79(8) of the Family Law Act Ms E Tregaskis be substituted for the wife in these proceedings.  Thus, strictly, E Tregaskis now becomes the named party.  That is the formality of it but, of course, I am sure everyone understands what is being referred to when I refer to the estate or the wife, and there should be no confusion about that. 

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 17 August 2009.

Associate