Abati and Cole (No. 2)

[2014] FamCA 426

FAMILY COURT OF AUSTRALIA

ABATI & COLE (NO. 2) [2014] FamCA 426

FAMILY LAW – INJUNCTIONS – No material filed by respondent – Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Abati

RESPONDENT: Mr Cole

FILE NUMBER: MLC 10475 of 2013

DATE DELIVERED: 30 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North SC

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Combes

SOLICITOR FOR THE RESPONDENT: Harris Freidman Lawyers

Orders

1. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10 am on 21 August 2014 as a half day matter.

2. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

3. By 4 pm on 6 June 2014 the applicant file and serve upon all other parties an amended application setting out with precision the orders to be sought;

4. The applicant pay all required court fees by 4 pm on 1 August 2014.

5. By 4 pm on 20 June 2014 the respondent file and serve upon all other parties:

   (a)a response setting out with precision the orders to be sought;

   (b)all affidavits of evidence to be relied upon; and

   (c)a financial statement.

6. By 4 pm on 11 July 2014 the applicant file and serve upon all other parties all affidavits of evidence to be relied upon; and

7. By 4 pm on 25 July 2014 the respondent file and serve any affidavit in reply.

8. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

   CASE MANAGEMENT

9. The registrar may vary the filing timetable under these orders.

10. If a party fails to comply with these orders, a party who has complied may file an application in a case supported by an affidavit seeking to proceed on an undefended basis.

11. Any rulings required on objections to evidence shall be set out in the case outline.

12. By 4 pm on 20 August 2014 all parties file electronically to … a case outline in one document setting out:

    (a)a concise set of orders to be sought;

    (b)the list of the affidavits to be read;

    (c)the list of objections to evidence requiring a ruling;

    (d)the outline of the issues in dispute; and

THAT UNTIL FURTHER ORDER

1. That pending further order the husband by himself, his servants or agents or howsoever otherwise be restrained by injunction from further prosecuting proceedings in Indonesia, being the Lawsuit for Divorce in the Denpasar District Court, REG NO: … and dated … November 2013, a copy of which is annexure “D” to affidavit of Ms Abati filed herein on 2 December 2013 and the translation of which is annexure “A” to the affidavit of Ms Abati filed 2 December 2013, against the Wife in so far as it relates to matters which are subject of the Financial Agreement including settlement of property between the husband and wife and related injunctions and in particular the Husband is restrained from continuing to prosecute any claim for relief in such proceedings as sought by paragraphs 6, 15, 16 or 17 of, or by paragraphs numbered 1 or 2 appearing therein under the heading “FF” in that document of which the aforementioned annexure “D” is a copy.

2. That until further order the husband by himself, his servants or agents or howsoever otherwise is hereby restrained from seeking relief against the wife in the Denpasar District Court or any other Court in Indonesia with respect to all or any of the property referred to in paragraph 6 of the affidavit of Ms Abati filed herein on 2 December 2013 whether that relief is by way of injunction restraining the wife from dealing in any way with respect to that property, or any stipulation or declaration that all or any such property is “community property” or a declaration that any “Marital Seizure” of all or any such property is lawful or valuable or any further or other relief with respect to all or any such property.

3. That the husband be restrained from doing any act, or executing any document in Australia or Indonesia to transfer the wife’s separate property in Bali, Indonesia into his name or to any other person or entity.

4. That the husband be restrained from doing any act or thing which will have the effect of charging, mortgaging or otherwise encumbering the wife’s separate property.

5. That the husband forthwith deliver up to the wife’s solicitor, Messrs Nicholes Family Lawyers, …, Melbourne Vic 3000 the Title Deeds to the following properties held in the wife’s sole name:

   (i)Villa 1 being at Property A;

   (ii)Villa 2 being at Property B;

   (iii)1100 square metre block of land at Property C;

   (iv)1050 square metre block of land at Property D;

   (v)Property and 750 square metre block of land at Property E.

6. That the husband pay the wife’s costs of this day by agreement and in default of agreement by 4.00pm on 13 June 2014, then as assessed by the Registrar.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

AND THE PARTIES SHOULD NOTE:

A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abati & Cole (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 10475 of 2013

Ms Abati

Applicant

And

Mr Cole

Respondent

REASONS FOR JUDGMENT

1. Today is the third return date before me of the wife’s initiating application that was filed on 2 December 2013.  It came before me in the judicial duty list on 3 February 2014, at which time I made some interlocutory injunctions.  The matter was adjourned to 5 March where the injunctions were extended and there was also a timetable made for the filing.  The deadline for the filing of material by the husband has passed.  He has filed no material to date.  His counsel’s explanation for that is that, apart from the fact that there is no real prejudice to the wife, the husband did not comply because of proceedings that were taking place in Indonesia.  I do not accept that as an explanation for ignoring the situation in Australia.

2. There was clearly correspondence between the lawyers in very recent days at which it was suggested that the proceedings be adjourned again, whereas the wife’s position was, and now is, that the matter should be set down for a final hearing.  The correspondence which is attached to the affidavit of Ms Sagemen, which has been filed electronically on 29 May, makes clear that there was no consensus between the parties.  So on any view, they had to be here today. 

3. I am perplexed as to exactly what the husband’s position is, having regard to the fact the case has been wandering through the Court since December.  One of the dilemmas is that, in the wife asking for the matter to be set down for a final hearing, I can only work on the basis of the material that she has filed.  On the face of the record, one would think that this is a relatively short enforcement application but I do not know what the husband’s position is at all and to that extent, his counsel has been candid enough to say that he does not know what case the husband is going to put and indeed, the correspondence would show that he intends going to seek senior counsel’s advice in the ensuing days.

4. One of the extra applications for orders today by the wife is that the husband return to her four title documents to properties that are in her name only.  Whilst it is argued, and again without evidence, by the husband that there is no prejudice to the wife, the reality is there is no dispute before me at the moment that a financial agreement is extant.  There is little argument that the husband can put that the wife might run away and sell those properties and he might miss out.  Unless he can point to some particular entitlement relating to those particular properties, it is not a matter that I should be troubled about. 

5. This is property that belongs to the wife, not only in the sense of the legal interests in the real properties themselves, but also in the pieces of paper, which are known as the certificates, that reflect those interests.  The only evidence I have is that the husband somehow or other handed those to a person, presumably for safekeeping, and, as Mr North points out, those documents are presumably, therefore, within his power, possession or control.  On the evidence before me, those titles belong to the wife and they should be returned to her.  There is no application before me for any injunctive relief by the husband to prevent her from disposing of those properties and on that basis, it is proper that the order be made that within 14 days the husband hand to the solicitors for the wife those four titles. 

6. There is no dispute about the other interlocutory orders, numbers 3, 3A, 4 and 5 of the application and there cannot be because the husband has not put a position before the Court for alternate orders but he also has filed no evidence.  On the previous occasion, I made orders until 4.30 pm this day and on that basis no one has challenged the jurisdiction it is appropriate that the orders, therefore, continue indefinitely.  Normally, orders of that nature would have a sundown clause but in this particular case, having regard to the husband’s unknown position, I think those orders should be made until further order. 

7. The other issue that has arisen today is the question of costs. The applicant seeks costs for today. I will not be prepared to make orders for costs on the previous two occasions, notwithstanding they were reserved, because those are matters for trial. The question is whether or not there ought to be an order for costs today. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings in this Court, each party shall bear their own costs unless there are justifiable circumstances to depart from that principle. If the Court is satisfied there is a justifiable circumstance then the Court still cannot make an order unless it is satisfied that the provisions of s 117(2A) are met.

8. I made orders which were very clear in March, giving the husband an opportunity to participate in the proceedings on the basis that he was to file material by a certain date.  The date came and went and I do not accept his explanation that he was simply waiting to see what was happening in Indonesia.  The fact is the wife could have had not only a consent order extending the orders from March indefinitely, but could have also had the matter attended by persons other than senior counsel for the purposes of simply getting directions for trial. 

9. The Court is justified in departing from the principle in s 117 of the Act. As I indicated, however, the Court must take into account the matters set out in s 117(2A). Those matters include the financial circumstances of the parties. I do not know what the financial circumstances of the husband are because he has not provided any material, but I think I can draw some conclusion from the fact that he has lawyers acting for him in Sydney who have written indicating that he is going to seek senior counsel’s advice. That would tend to suggest that he is not impecunious. Similarly, the wife has some properties in her name and I draw the same conclusion.

10. Another factor to be taken into account is the way in which orders have been adhered to.  As I have already indicated, the husband has not complied with orders and therefore, the wife had to come along today prepared just in case the argument was raised or documents were delivered at the last moment.  There are clearly no legal aid considerations in this case and on any view, the wife has achieved the orders that she has sought initially and has been seeking for some months on an interim basis.  I can conclude that the husband has been wholly unsuccessful.  This is an example of where an order for costs is justified and, in fact, should be made. 

11. Because I am not entirely aware of what the costs are that are incurred for today, I propose to make an order that – in default of agreement by 20 June.  As to the quantum of those costs, they will be assessed by the Registrar.  I will certify for counsel and, in this case, including senior counsel, having regard to the international nature of the matter and the complexities that go with it. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 May 2014.

Associate: 

Date:  20 June 2014