Abad-Booton and Abad-Booton

[2007] FamCA 681

FAMILY COURT OF AUSTRALIA

ABAD-BOOTON & ABAD-BOOTON [2007] FamCA 681

FAMILY LAW - PRACTICE AND PROCEDURE - Service

Family Law Act 1975 (Cth)

APPLICANT: MRS ABAD-BOOTON

RESPONDENT: MR ABAD-BOOTON

FILE NUMBER: MLC 6879 of 2007

DATE DELIVERED: 5 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dellidis

SOLICITOR FOR THE APPLICANT: Hugh Watson Marks Kennedy

COUNSEL FOR THE RESPONDENT: No appearance

Orders

In the matter of Abad-Booton I make the following orders:

1. That the further hearing of all outstanding applications be adjourned for hearing at 10 am in the judicial duty list on 6 August 2007.

2. That the husband appear personally at the hearing on 6 August 2007.

3. That the husband file and serve by 4 pm on 20 July 2007 any material upon which he intends to rely in respect of these proceedings.

4. In respect of these proceedings I fix the wife's costs of $1100 thrown away this day and reserve those costs to the adjourned date.

5. I direct that exhibit W1 remain on the court file.

6. That until further order the wife have sole parental responsibility for the children S born in December 2002, and H born in June 2004.

7. That until further order the children live with the wife.

8. That until further order the wife have sole use and occupation of the home at T, and the husband he restrained from attending there, other than by written agreement with the wife.

9. That until further order the husband, his servants and agents be and are hereby restrained from selling, disposing, encumbering or otherwise dealing with the properties located at:

   (a)      P;  and,

   (b)      T.

10. That until further order the husband, his servants and agents be and are hereby restrained, other than in the ordinary course of business, from:

    (a)selling, alienating or disposing of any shares held by him;

    (b)resigning from any power of appointment which he has or is entitled to hold in any family trust or unit trust;

    (c)causing or suffering to be caused the wife being removed as a beneficiary from any family trust or unit trust;

    (d)causing or suffering to be caused the appointment of any further beneficiaries of any family trust or unit trust;

    (e)removing or suffering to be removed the current trustees of any investment, unit trust or family trust; and

    (f)selling, alienating, disposing of, charging, encumbering or dealing with any asset or business entity which he owns or controls.

11. That the wife, as soon as practicable, personally serve upon the husband the application filed 19 June 2007; the affidavit filed 19 June 2007; the form 13 financial statement filed 19 June 2007, and a sealed copy of my orders this day.

12. That my reasons for judgment be transcribed and be placed on the court file.

13. I will also add the usual s 65DA(2) and s 62B orders.

Notation to the orders:

The matter has proceeded on the interim basis today without the presence of the husband who is urged to read carefully the orders and to attend upon the return date of 6 August 2007, failing which the wife has indicated her intention to apply for a warrant for his arrest.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6879 of 2007

MRS ABAD-BOOTON

Applicant

And

MR ABAD-BOOTON

Respondent

REASONS FOR JUDGMENT

1. I am dealing with a matter in the judicial duty list that was filed by the wife on 19 June 2007 seeking a whole raft of orders.  I have had the husband called and he has not responded.

2. Counsel for the wife has indicated that in a telephone conversation between her instructor and the husband he mentioned that he thought that the matter was not listed for hearing today but having regard to a number of matters that I will turn to in a moment and the material filed by the wife, I propose to adjourn the proceedings to 6 August back into this list and make some interim orders in the meantime.

3. The background of the matter is also important because the Registrar directed that the application that I have mentioned be served by 26 June to enable it to be listed in today's list.  That becomes important when I now deal with the question of service.  I have been handed a bundle of correspondence which I have marked as Exhibit W1.  On 20 June 2007 the solicitor for the wife, obviously being aware of the involvement of the firm of Hall and Wilcox on behalf of the husband, wrote requesting some indication as to whether they had instructions to accept service of documents that at that stage had in fact been issued, with the warning that were they not prepared to accept service the documents would be served personally.

4. The very same day, Hall and Wilcox sent back to the solicitors for the wife a letter simply recognising the letter of the same day and confirming that they held instructions to accept service.  The following day, 21 June, the solicitors for the wife sent by document exchange the application, the wife's affidavit and her financial statement.  Some four days later on 25 June, Hall and Wilcox responded, repeating that they had advised of capacity to accept service on behalf of the husband but they had not received the documents.

5. I am told that the documents were in fact in the Hall and Wilcox business premises somewhere but had obviously not reached the writer of the Hall and Wilcox letters.  That problem seems to have been overcome because on 28 June the solicitors for the wife wrote to Hall and Wilcox referring to their letter that I have just mentioned, confirming that Hall and Wilcox had in fact found the documents and reiterating what those documents were.  Hall and Wilcox, in their letter dated 25 June, also mentioned the fact that, notwithstanding the issuing of proceedings, the husband wanted to proceed to mediation.  They also mentioned in the 25 June letter that if they did not receive the documents on that same day - that is 25 June - they would be seeking instructions to adjourn the matter.

6. The solicitor for the wife responded by indicating that any attempt to adjourn the proceedings on 5 July would be vigorously defended.  The following day, 29 June, Hall and Wilcox returned the wife's documents indicating that they did not hold instructions to act for the husband.  It is very difficult to work out from that train of correspondence whether the documents were brought to the husband’s attention.  Family Law Rules clearly indicate that if a solicitor acknowledges service then the court can proceed on the basis that there would have been some arrangement between his solicitor and the husband and that they would have been brought to his attention.

7. The problem is compounded by counsel's proper concession this morning that the husband had indicated that he did not think the matter was listed for hearing today, but it certainly would suggest that he at least was aware that there was a hearing on.  I cannot be absolutely certain about the service arrangements but I am prepared to deal with the matter on an interim basis until 6 August with appropriate safeguards to the husband in the meantime.

8. In this particular case the parties were not married for a very long period of time, and there are two children of that marriage:  S who was born in December 2002 and who is therefore four years of age, and H who was born in June 2004 who is two years old.  It is quite clear from reading the wife's material that she has been predominantly the person caring for those two children, and the husband has been involved in the workforce.

9. The wife's affidavit, which I have read, refers to the fact that the husband worked long hours in his employment in the service industry as a manager.  She goes further and says that it had always been their agreement that she would be at home to care for the children.  The affidavit, however, in some explicit details makes reference to the conclusion of the marriage - various assaults and allegations of drug and alcohol abuse.

10. It is also clear from reading the affidavit that the wife's understanding of the financial position of the parties is somewhat limited.  It may be due, in part, to the violence that is alleged in the affidavit.  There are also indications that the parties have been in the state legal system with intervention orders, and the history is not at all pretty.

11. I propose in the circumstances, based upon the concerns expressed by the wife, to make holding orders, giving the husband not only an opportunity to attend but having regard to counsel's submission that the wife has a limited understanding of the financial circumstances of the parties, I propose to also order that the husband attend personally on the return date.  It has been suggested that if he fails to attend on that date a warrant would be sought for his arrest.  I am not going to limit what any other judge in this Court would do, but I would certainly be hesitant about doing that when there are other avenues to seek the sort of information that the wife is pursuing, without forcing the husband to participate.  The husband obviously does not have to participate but he does so at his peril.

12. In circumstances where, to use the expression of the wife in paragraph 30 of her affidavit - and I quote:

    The respondent rarely accounted to me about finances or the interrelated family companies.  I do not know about whether he has any other interests, such as trusts, shares, companies or properties.  I understand that the respondent is a beneficiary under the family trust with his three brothers and two sisters.  I do not have any knowledge of who operates the trust or any details about the trust.

13. As I mentioned a moment ago there may be some reasonable explanation as to why the wife would not know any of those things, but in the circumstances it may be that the only way that the wife will get a fair knowledge of what this case is about from a financial perspective is by the husband being here.  If he does not attend, then a court on the next occasion can give some consideration as to whether it is critical for him to be here and for a warrant to issue for his arrest.

14. In the circumstances I think it is appropriate that there be holding orders in relation to the children. I do not propose to make any orders about what time the husband can spend with the children in the meantime. If in fact the wife refuses any reasonable request for the husband to spend time with the children - and I stress "reasonable" - then the provisions of s 60CC(4) of the Family Law Act1975 (Cth) (“the Act”) may apply and a court in hearing the matter on a final basis may take a dim view of her responsibilities as a parent.

15. Having regard also to the allegations of graphic violence, which I will not regale here in open court, I think it is appropriate that the husband be restrained, at least in the interim period, from returning to the home.  He has left the property in the hands of the wife and the children, and the wife's complaint is that he turns up at his own whim.  I do not think that is appropriate in the circumstances where there are not only serious allegations of violence but the parties have also been before the state Magistrates' Court involving intervention order proceedings.  In those circumstances, I think it is appropriate, at least until the return date, the wife have the right of privacy.

16. I am going to make orders about the husband filing material and to give him some two weeks to file that material.  It is clear from exhibit W1 that I mentioned, the husband has been to Hall and Wilcox and they seem to have a fairly good understanding of what the case was all about and, therefore, I am presuming that the husband knows that in respect of financial matters he has an obligation under the Family Law Rules to make proper disclosure.  If he fails to comply with these orders then that may be another basis upon which a judge on the next occasion may conclude that the failure to attend warrants the issuing of some more stringent process to get him here.

17. In all those circumstances I propose to make the following orders.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 July 2007

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