Walford and Walford

[2007] FamCA 545

FAMILY COURT OF AUSTRALIA

WALFORD & WALFORD [2007] FamCA 545

FAMILY LAW - PRACTICE AND PROCEDURE – Adjournments – Application for adjournment by wife at the commencement of trial on basis of fresh information – Husband involved in offshore financial arrangement requiring further investigation

Family Law Act 1975 (as amended)

Oriolo v Oriolo (1985) FLC 91-653

APPLICANT: Mrs Walford

RESPONDENT: Mr Walford

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 6901 of 2002

DATE DELIVERED: 14 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 14 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Wightons Lawyers

COUNSEL FOR THE RESPONDENT: Mr O'Shannessy

SOLICITOR FOR THE RESPONDENT: Anthony Peterson & Co.

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Arnold

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That all extant applications be adjourned for mention only before the Honourable Justice Guest at 9.30am on 13 June 2007.

2. That the costs of all parties this day be reserved.

(3) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

1. That the ex tempore judgment be transcribed, placed on the Court file and made available to the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6901  of 2002

Mrs Walford

Applicant

And

Mr Walford

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Defended List.  Mr Mort appears for the applicant wife, Mr O'Shannessy, for the respondent husband, and Mr Arnold for the Independent Children's Lawyer. 

2. A short relevant background is as follows.  The wife was born on … March 1968, and is 39 years of age.  The husband was born on … December 1968, and is 38 years of age.  They commenced cohabitation in July 1989, and married on 2… February 1995.  There is one child of their union, a daughter, who was born on … August 1997. 

3. Following unhappy differences between them, they separated on 14 April 2002. In October 2002, they entered into a Child Support Agreement which was registered with the Child Support Agency, which as its principal clause, provided for the husband to pay child support at the rate of $200 per week for the child. The parties negotiated and obtained orders for property distribution, pursuant to section 79 of the Family Law Act 1975 (as amended), and entered into consent orders pursuant to Form 12A procedure.

4. In December 2003, so far as some of the more relevant facts are concerned, the husband filed a Child Support Departure Application and, broadly speaking asserted that his income position was insufficient for him to maintain the payment of $200 per week.  He is currently paying, as I understand the submissions made this day, some $25 per week.  The issue of child support has become a serious one as between the parties, with the husband asserting, in effect, his financial inability to provide for the support that he agreed to back in October 2002. 

5. On the other hand, the wife says that is not the case.  She claims the husband has a substantial income and that, in effect, is one secreted from the court.  She also claims that he has failed to make full and frank discovery.  The importance of such discovery, which rests at the epicentre of a fair hearing, was best explained in by the Full Court in Oriolo v Oriolo (1985) FLC 91-653.

6. The welfare dispute continued unabated between the parties and in July 2006 they attended upon Ms M for preparation of a second family report.  There have been financial implications following the consent orders that were entered into between the parties on 9 October 2002, in the sense that the moneys received by the wife, with which she purchased a home, have resulted in that home now being sold and her renting a property at T.   

7. It appears from the submissions made on her behalf by Mr Mort this day that whatever moneys she had, have now been dissipated.  I was surprised, but concerned to learn, for example, that the wife's costs to date, in the pursuit of the truth (as she would put it) by way of discovery, amounts to some $100,000, and that the husband's costs to date, through the various firms of solicitors engaged by him, amounted to about $70,000.  It has been suggested to me that the differential between the two may arise from the fact that the husband has been, for some period of time in any event, representing himself during the course of the proceedings.

8. The welfare issue concerns a shared arrangement, or the maintenance of the status quo, alternatively an arrangement of a lesser nature.  Much will depend, in the result, upon the evidence before the court.  However, having read the welfare affidavits deposed to by the parties and the serious matters raised, the proceedings may well result in an order quite different from that proposed by either of the parties.  I have made it quite clear in the course of discussion that I am not bound by the proposed orders and will, in the result, act upon the evidence I hear.

9. Significant in these proceedings is the role of Mr Arnold, appearing for the Independent Children's Lawyer.  He has made it patently clear, as night follows day, that the recommendation of the Independent Children's Lawyer is for the maintenance of the status quo.  The wife, through Mr Mort, although initially seeking a different order will accept that recommendation which also bears the seal of Ms Matthews.  That will be an issue, but again I make it patently clear, as both counsel will when the court retires explain to their clients what I mean, namely that the orders proposed may not necessarily be orders ultimately made.

10. The property issue is a serious one in which an application has been made to set aside the consent orders of 9 October 2002.  I have read the wife's affidavit in support and it does certainly generate a picture that the husband is and has been involved in overseas arrangements for offshore contracts, has been involved with overseas bank accounts and the quest to obtain expert advice concerning the remission of income earned and placed offshore for tax minimisation purposes.  I need say no more than that.  Whether that transpires to be the case or not is quite another issue.

11. The husband's position this day in court is that he earns some $820 per week, has expenses of about $1200 per week and has modest assets, including a $27,000 rare coin collection which in any event he holds in trust for the child.  Thus it is, on what Mr O'Shannessy has submitted, that the husband is in near penury, without assets and is being marginalized in terms of an ability to obtain a credit facility.  Certainly no lending institution on planet Earth would accord a lending facility to a customer applying for credit who earns $800 per week but spends, if it is legitimate, $1200 per week and has no assets, other than a couple of trinkets or coins held in trust for a child.

12. The wife has thus far spent a large amount of money in pursuit of what she believes to be the truth.  This afternoon, Mr Mort has provided to me a document in his handwriting which I will include into these short extempore remarks.  The document records the following:

    “i)Moneys from Lloyds Bank two and a half years ago transferred by husband to Deutsche Bank agent at [R], New South Wales, $282,000;

    ii)Trust set up involving husband with paper trail and money trail directly implicating husband, discretionary trust and unit‑trust holders - (1) [Mr K]; (2) [Mr G]; (3) [Mr P] - involved in two properties in G.

    iii)Moneys traced to husband into pensioner's superannuation in New Zealand involving float of 2.9 million.

    iv)Husband transfers money from NAB to BankWest.  Money traced to real estate linking husband in 2000-2001.

    v)Husband has interest for account with Beijing Bank.  

    All inquiries subject to further investigation, hard copy documents to be obtained.”

13. That document formulates the basis of the submission made by Mr Mort for an adjournment.  He has addressed me severally in relation to a number of the issues stated in the document that I have recorded into this short judgment. 

14. Mr Mort informed me from the bar table, and which I only receive in that manner and which, if transpiring to be correct, will be placed in proper form, that the wife had engaged a private inquiry agent, who had informed him of those five points to which I have referred.

15. I was informed by Mr Mort, he having sought instructions, that the private inquiry agent was retained some three weeks ago.  The wife had to pay him a $500 deposit and he required further payment of $1200.  Mr Mort said he was informed by the gentleman to whom he spoke that there was “an intricate but definite trail of moneys that end with the husband”.  He submitted that the private inquiry agent required further instructions and fees from the wife.

16. I do not see anything wrong with additional moneys being requested, but it seems to me that in this “live by the sword, die by the sword” type of case in which one is now involved, the wife should be given every opportunity to investigate what she believes to be the truth. If it transpires to be correct, then the sword of Damocles may fall somewhat heavily on the other litigant in court, certainly in terms of a cost impost. If it does not, and proves to be of hollow substance, then that will certainly agitate the husband's attention to make an application pursuant to section 117(1) of the Family Law Act1975 (as amended).

17. Mr Mort with his usual frankness said, "This is the wife's last opportunity."  I propose to grant her that indulgence.  I will reserve the costs of this day.  It would be only fair, just and proper that such a course be taken for the obvious reasons.  If it transpires that there is substance to the information provided by the private inquiry agent to the wife, and hence recorded in the five points to which I have referred, then costs may well fall one way.  If it proves to be of little if any consequence, costs may well fall the other.

18. However, in the middle of all this stands the Independent Children's Lawyer.  Nothing, he has made it clear, will in any way change the preliminary view.  It may be of course that the evidence ultimately will be such as to cause a change.  However, he has come to court this day in order to try to achieve a resolution.  The wife will accept the recommendations of the Independent Children's Lawyer.  The husband does not.  In reserving costs, of course, I reserve the Independent Children's Lawyer's costs and that will be ultimately brought back to me for decision in the fullness of time.

19. Mr O'Shannessy has made a number of very helpful submissions of which I take account.  In essence, Mr O'Shannessy submitted that the husband has made full production of relevant documents, and that documents that may be requested, such as has occurred in the course of discussion, will certainly be produced.

20. The matter was stood down for a short period of time and when it resumed Mr O'Shannessy continued his submissions.  He made the pertinent point, of course, namely that Mr Mort had no documents in respect of the “five points” and that his client, the husband, had little if any information about the private inquiry agent, and his retention.  That generated the response by Mr Mort, confirming the financial requirements of the agent.  He said he required “three weeks”.  I propose to adjourn the matter for, say, one month.

21. I want to make one further observation.  If I simply adjourn this matter off it would get lost somewhere in Casetrack and, if so, come before some other judge who will be introduced to it with explanations having to be given.  It seems to me that it would be fair to the parties that I maintain management of this matter.  Certainly it is for that reason I have adjourned it to 9.30 am on 13 June 2007.

22. In regard to all the issues involved, it may well be, and such an application has already been pre-empted by Mr Mort, appropriate to put the matter into the Long Defended List.  It seems to me that that decision could be made on 13 June 2007.

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

Associate: 

Date:  7 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WALFORD & WALFORD