Walford & Walford (No. 2)

[2007] FamCA 1611

FAMILY COURT OF AUSTRALIA

WALFORD & WALFORD (NO. 2) [2007] FamCA 1611

FAMILY LAW – CHILDREN & PROPERTY – On first day of hearing it transpired husband had not produced all relevant documents for trial purposes – Orders made for affidavit evidence to be filed on this issue – Comments made on the importance of full and frank disclosure of all financial material

Family Law Act 1975 (Cth)

Johnson & Johnson (2000) 201 CLR 488
Oriolo & Oriolo (1985) FLC 91-653
Briese & Briese (1986) FLC 97-713

APPLICANT: Mrs Walford

RESPONDENT: Mr Walford

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 6901 of 2002

DATE DELIVERED: 17 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 17 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Wightons Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

ORDERS

1. That each of the husband and the wife do cause to be filed not later than 10.00am on 18 December 2007 an affidavit of evidence dealing with the issue of alleged non-disclosure of documents on the part of the husband.

2. That the costs thrown away by the adjournment this day be reserved for further evidence and submission.

3. That the further hearing of all extant applications be adjourned to 10.00 am on 18 December 2007.

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

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

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 as a primary listing in the Standard Track of Defended Cases commencing this day. Mr Mort appears for the applicant wife, the husband appears in person, and Mr Arnold appears for the Independent Children's Lawyer. 

2. I have had the advantage of reading the third report of the psychologist, Ms M and dated 6 December 2007. By that report, Ms M has advanced certain recommendations in the alternative. In an earlier report prepared for an interim hearing in May 2007, she advanced a number of recommendations and Mr Arnold made it clear that the preliminary view of the Independent Children's Lawyer was to endorse the evaluation and recommendations of Ms M. For his part, Mr Mort, on behalf of the wife, said that she too would abide those recommendations as well. The husband took issue with them and sought an equal share week about arrangement as “his right”.

3. The current report advances recommendations in the alternative, namely that the current position remain as one option in regard to the child's living arrangement and alternatively, the child spends time with the father from Thursday afternoon to Monday morning two weeks out of the cycle of three weeks, with a Thursday afternoon to Friday morning with her father in the third week of the cycle.  I have yet to hear the preliminary view of the Independent Children's Lawyer in relation to those two options at this stage. However, it seems to me it would be appropriate at this stage that the matter was stood down to determine whether or not the child welfare issue was capable of a sensible, dignified and appropriate resolution.

4. As a preliminary view, under the umbrella of Johnson & Johnson (2000) 201 CLR 488, Gleeson CJ and Gaudron, McHugh and Hayne JJ in a most helpful judgment (at p 493) referred to preliminary discussion between the bench and professional representatives for the parties as being helpful to both the parties and their lawyers. It must be on the basis that any view stated was of a “preliminary nature”, and was not one set in concrete. Their Honours referred to the situation being unsatisfactory where judges would sit Sphinx-like and mute throughout the whole of the proceeding in circumstances where the practitioners had no idea what issues concerned the trial Judge.

5. I make this observation at this stage as a preliminary view. It seems to me that the first option has less surrounding it in terms of interference with general lifestyle than the second option. However, I will await the evidence and that any final determination will be on the basis of my having heard the whole of the evidence.  I only advance this comment at this stage as an intuitive synthesis of the material now available to me as a preliminary view that option (a) is a tidier option than that of (b).

6. In coming to that preliminary view I had the advantage also of reading the affidavit of Mr B, which was filed on 14 December 2007. Mr B is the partner of the wife, their relationship having commenced in 2006.  From a general reading, I thought his was a helpful affidavit and seemed to me to pour oil on troubled waters, if I may put it that way, in terms of relational difficulties. However, I note that the document was posted to the husband last Friday and that he has not yet received it. The advantage is that it will be provided to the husband, who will have the opportunity to read it during the time that the proceeding is stood down.

7. There is one final matter I wish to make perfectly plain at this stage. That is the issue of disclosure in financial matters. It has been the complaint of the wife, and it is one that is also earlier recorded in my extempore judgment of 14 May 2007, that the husband has failed to adequately and properly disclose financial information over a long period of time now. 

8. For example, Mr Mort has complained that the husband was asked to produce his personal bank statements with account number … at the Westpac Bank, L Branch, for the past two years. It is said by Mr Mort that all that has been produced is statement page 17, commencing 3 April 2006 to 29 June 2003; and page 19, commencing 5 October 2006 and ending 2 January 2007. For his part, the husband says that he has produced the requisite statements. 

9. It is also the complaint of Mr Mort that the husband was asked to produce the bank statements for the past two years of C Pty Ltd, account number …, at the Westpac Bank L branch.  I am informed by Mr Mort that six pages have been produced, being pages numbered 93, 96, 97, 98, 108 and 110.  Again, this is disputed by the husband.

10. Also sought by Mr Mort were copies of the husband's Visa accounts, being two in number, the first one with the last four digits ending …. Mr Mort complains that the husband has only produced Visa statements of 2 May 2006, 31 October 2006, 1 December 2006 and 31 July 2007. In relation to the husband's second Visa account, ending with the last four digits …, Mr Mort complains that he has only produced the statement of 31 October 2007.

11. I do not propose to recite into this short extempore document the precise submissions of Mr Mort dealing with specific requests, save to say that in the broad there was, as I understand his submission, inspection that took place at the wife's solicitor's office on 4 or 5 December 2007, and again on 12 December 2007. On those dates, it is submitted that the wife's solicitor sought the relevant bank statements to which I have referred for the past two years. It was submitted by Mr Mort that the husband advised they would all be delivered by 14 December 2007. They were not. The result, if Mr Mort's submissions are correct, is intolerable.

12. Mr Mort complained also that there was a request for documents concerning the investigation of the husband’s interest in R Investment. The husband has indicated that the documents were with his accountant, and that he would have to speak to his accountant in order to obtain them. Mr Mort said that the husband informed his instructing solicitor such was the fact, but also said they would be delivered by 14 December 2007. This has not been done.

13. This morning with the commencement of the proceedings, the husband provided two Visa bank statements of 2 May 2007 and 31 July 2007.  He also provided this morning the taxation returns for the Walford Discretionary Trust for the year ending 30 June 2007. 

14. Mr Mort further complained that no documents concerning the acquisition of a valuable coin collection acquired in London some time ago (and referred to in the wife's trial affidavit) and which the husband values at $27,000 in respect of which he says he holds on trust for the child, have been produced.

15. I have a sense that there has been a reluctance to make discovery in these proceedings in the full and frank sense of the term. It is only a preliminary view, however there seems to be a theme throughout the affidavit material that I have read thus far, that formulates a base for that observation. I will await the evidence and listen earnestly as the case unfolds over the next several days to all evidence concerning that of production and inspection.

16. The issue of production and failure to fully disclose financial circumstances was authoritatively dealt with by the Full Court of this court in Oriolo & Oriolo (1985) FLC 91-653, where the court considered what Smithers J had to say in Briese & Briese (which was then unreported as it had been delivered on 27 June 1985, but subsequently reported in (1986) FLC 97-713). The Full Court approved what his Honour said, and for the assistance of the parties I recite it into this short extempore judgment:

    “In my opinion this submission is not correct. I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner.  The regulations and now the rules are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty.  They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard, delays will ensue with a consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.”

    (Page 80-256)

17. That authority has been followed time and again by other leading decisions of this court concerning discovery. I make it plain that it is absolutely vital that there is full and frank financial disclosure in this matter, for the seeds or the necessity for such a disclosure appear to have been laid out in the affidavit of the wife and her annexures.

18. In the circumstances, I will stand the matter down for a short period of time. Any costs that are incurred as a result of this process will fall into the pool later to be considered by any of the parties upon application being made. I have taken the caution of recording into these short remarks the history of the matter as it fell this morning at the commencement of proceedings.

19. I direct that the extempore judgment that I delivered be transcribed, placed on the court file and made available to the parties. I will make orders concerning the failure or otherwise to make discovery of relevant documents evidenced by the recent meeting and reserve costs thrown away by adjourning the matter to tomorrow morning.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate

Date:  21 January 2008