Vlahos and Vlahos

[2009] FamCA 971

FAMILY COURT OF AUSTRALIA

VLAHOS & VLAHOS [2009] FamCA 971

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to call witnesses

APPLICANT: Ms Vlahos

RESPONDENT: Mr Vlahos

FILE NUMBER: MLC 4731 of 2008

DATE DELIVERED: 6 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 6 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Hogg & Reid

COUNSEL FOR THE RESPONDENT: Mr Grigg

SOLICITOR FOR THE RESPONDENT: Rhonda G Wilkinson

Orders

1. That paragraph 7 of the orders made on 6 September 2005 shall be amended to “That until further order, save in the ordinary course of business and subject to paragraph 6 of these orders, the husband and his servants and agents shall be and is hereby restrained from disposing of, encumbering, or otherwise dealing with any assets or property in which he has an interest including any property held in trust for him or over which he has any control without the prior consent in writing of the wife or court order.”

2. That the husband shall ensure that each and every mortgage repayment in relation to the mortgage over the property at P shall be paid as and when it falls due.

3. That the husband shall pay the wife’s costs thrown away as a result of this adjournment, fixed at $7,500, paid by bank cheque to the wife’s solicitors within 21 days.

4. That the husband shall do all acts and things necessary to arrange for the motor vehicles listed in Attachment “A” to these orders to be produced for valuation by Mr C or nominee upon reasonable notice and failing agreement as to “reasonable notice” within 7 days of a request.

5. That each party shall pay half the motor vehicle valuation costs and the trial Judge shall in due course determine any variation to how those costs are borne.

6. That the husband shall be permitted to sell the motor vehicle previously registered …1 for the purpose of meeting the wife’s costs in paragraph 3 of these orders and his share of the valuation costs in paragraph 5 of these orders, and for this purpose the husband shall forthwith advise the wife’s solicitors where the vehicle can be inspected by Mr C or his nominee within 48 hours.

7. That for the purposes of valuation in paragraph 6 of these orders, the wife shall pay the valuation costs, which shall later be determined by the trial Judge. 

8. That the reasons for judgment given this day shall be prepared and retained on the court file.

9. That the husband shall file and serve new affidavits from:

   (a)Mr B;

   (b)Mr L;

   (c)Ms J;

   (d)Mr I;

   (e)Ms R;

   (f)Mr N;

   (g)Mr S;

   (h)Mr T; and

   (i)Mr X

   by 4.00pm Friday 9 October 2009.

10. That the final hearing date shall be advised to the parties by the Registrar as soon as practicable and the Registrar is requested to hold a timely telephone mention to make any necessary case management orders if, for example, new case summaries are required.

11. That the wife’s solicitor shall have leave to file and serve subpoenas returnable in the Registrar’s Subpoena List on 5 November 2009 at 9.30am.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4731 of 2008

MS VLAHOS

Applicant

And

MR VLAHOS

Respondent

REASONS FOR JUDGMENT

1. This case started before me on 26 June this year and I immediately fixed it for a final hearing on parenting and financial issues, to start yesterday, 5 October.  It did start yesterday.  It started with counsel for the husband, the wife, and the Independent Children’s Lawyer asking for time to resolve the parenting issues.  Final consent parenting orders were filed late in the day yesterday.

2. The financial part of the case was due to start this morning.  Yesterday Mr Grigg, counsel for the husband, gave the forewarning that the husband would need to call nine additional witnesses who were not yet on affidavit.  This morning he has pursued that need. 

3. The most significant factual dispute in this case relates to the husband’s ownership of a number of prestige cars, their value, and whether or not he is continuing his business of car hire and driving.  On the wife’s account, he owns a fleet of extremely valuable cars and although he draws social security he also earns undisclosed income from an ongoing business.

4. There is objective material that at least appears to support her account, including that the husband has insured relevant vehicles for sums very substantially in excess of the value he attributes to them and he has done so in recent times when he has been claiming that he did not own the vehicles.  She has also produced evidence, by way of annexures to her affidavits, of advertisements for a business that she says is conducted by him, with the contact details being his telephone number, at times when he says he has had no business and has been, as I said, living off social security. 

5. The wife’s evidence is of course yet to be tested, but it has largely been “on the table” for months.  Much of it was put before me on 26 June, and the further detail that is in her affidavit has been there and available since 31 August 2009. 

6. It is clear, and Mr Grigg could not argue against it, that if I allow the husband to have these people as witnesses the case cannot proceed today.  He has no affidavits.  Mr Hutchins for the wife could not fairly be expected to proceed without the certainty as to what they would say.  He has a hint.  Eight of the nine people were referred to by the husband in his affidavit of 1 September.  Primarily, he swears that relevant cars belong to them, although he has insured them on their behalves because of attractive insurance rates that he could obtain.  Still, there is no detail, and if detail is forthcoming, the wife’s legal representatives require, and as a matter of fairness should be given time to properly investigate these people and their claims.  That is, as a matter of procedural fairness if the witnesses are to be allowed, the case must be adjourned.  

7. That means the primary question for me has been whether the witnesses should be allowed.  Mr Hutchins has taken the forthright and practical approach by not strenuously arguing against the witnesses being called, given that their evidence is so clearly germane to the major facts in issue before me. 

8. I am unimpressed by the husband’s behaviour.  I am unimpressed that these people are to be produced so late in the piece and still have not been produced in a proper manner.  I am unimpressed that, although it is said that he prepared his own affidavit, his solicitor remained the solicitor on record and at no time filed a notice of ceasing to act.  But, in any event, despite the fact that the conduct on his side has been unimpressive, and that it will have caused a substantial loss of costs to the wife, that is something I can remedy.  I do propose allowing him, as late as it is, to obtain evidence from these witnesses.

9. Mr Hutchins has already heralded that he will be seeking costs and other orders and wants to talk to me about the valuation of these vehicles, so I will turn to those issues now.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  6 October 2009