Wilson and Wilson

[2008] FamCA 622

FAMILY COURT OF AUSTRALIA

WILSON & WILSON [2008] FamCA 622

FAMILY LAW – ORDERS - Enforcement

Family Law Act 1975 (Cth)

APPLICANT: Ms Wilson

RESPONDENT: Mr Wilson

FILE NUMBER: MLC 5009 of 2008

DATE DELIVERED: 30 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 30 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.D. Sweeney

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr P.A. Marchetti

SOLICITOR FOR THE RESPONDENT: Lewenberg & Lewenberg

Orders

1. That by 5.00pm on 6 August 2008 the husband shall fully comply with paragraphs 7, 8 and 9 of Justice Cronin’s orders of 25 June 2008.

2. That by 5.00pm on 6 August 2008 the husband shall pay to the wife’s solicitors the wife’s costs of this application fixed at $4300.

3. That the transcript of my reasons given this day shall be prepared and kept on the court file.

4. That the wife’s application in a case filed 18 July 2008 shall be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5009 of 2008

MS WILSON

Applicant

And

MR WILSON

Respondent

REASONS FOR JUDGMENT

1. The wife's application in a case was filed on 18 July 2008.  In essence, she is seeking the enforcement of orders made in this court on 25 June 2008 in a number of respects, and most particularly in relation to the provision of documents, material and information which I will put under the broad heading of Financial Disclosure, as ordered in paragraphs 7, 8 and 9 of those orders.

2. The husband, who was represented by experienced counsel at that hearing, and entered the consent orders, had 14 days under paragraph 7 in which to file a financial statement and 21 days under paragraph 8, to provide various historical financial material and current material, including the most recent financial year’s documents.

3. Under paragraph 9, he had 14 days to provide to the wife's solicitor a list of the real property owned by entities under his control or in which he had an interest as a shareholder or trust beneficiary, or which were solely or jointly owned by him.

4. The orders have not been complied with.  The wife says that there should be full compliance within seven days.  The husband says that he needs a further 21 days for his accountant and advisers to be able to prepare the material.  Time is of the essence because once the material is forthcoming, a single valuer can then prepare a report.

5. I am unimpressed with the arguments put on the husband's behalf.  First, as I have noted, the orders were by consent.  Secondly, as I have noted, he was well represented at the time.  Thirdly, the documents or material were due either on 9 July or 16 July, depending on different time frames within different paragraphs of the order.  To be asking for another 21 days now is inordinately long.  Two weeks has already elapsed since the last due date.

6. Many of the documents have been clearly available but still not produced, just because the most recent financials are apparently not ready.  Although there are references to the husband's accountant having sought six weeks from when he was requested to produce the material, there is a lack of clarity as to the precise date upon which the accountant was instructed to proceed and there is absolutely nothing from the accountant himself as to what is holding up the work that needs to be done.

7. There is no reason forthcoming as to why the husband at this stage has still not prepared a financial statement as far as he could, and frankly, the lack of response in relation to paragraph 9 as to the properties under the husband's control and so on and so forth is somewhat absurd.  It simply does not ring true that no work could be done in that respect in the many weeks that have elapsed since the court order, or that the husband would not have some of that material very readily at his fingertips.

8. I will allow him a further seven days.  I am not going to allow any longer than that.  It is incumbent upon the husband to make sure that the material is forthcoming and that all the orders are complied with.

9. There was a reference by Mr Sweeney for the wife to an interim injunction.  Now that Mr Marchetti for the husband has shown me the undertaking that was made by the husband on 25 June, I am satisfied that sufficiently covers the situation.  That might change, depending on what information is forthcoming or whether information is forthcoming at the next hearing.

10. I am bound by section 117 of the Family Law Act when it comes to costs. Costs are a discretionary issue. There is a range of matters that I need to take into account. In this case, I am entirely satisfied that there should be a costs order in the wife's favour. She has been forced to come back to court to have orders that should have been complied with enforced. It is irresistible. In my view, the exercise of my discretion in favour of her in relation to costs in those circumstances is not at all problematic.

11. There has been no argument about the quantum of $4300 and I do not propose deferring those costs.  I do not have the material that I would need to persuade me, in light of the balance of the material, that this is a case where the wife should be left waiting for those costs until the end of the hearing.  I cannot be persuaded, given the deficit of material from the husband, that he has an incapacity through the various entities in which he is involved to raise the sum of $4300.  I see no reason why that sum should come from the $75,000 that it was agreed the wife required for purposes other than the enforcement of these orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  30 July 2008