Amberg and Amberg and Ors (No.1)
[2011] FMCAfam 205
•4 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMBERG & AMBERG & ORS (NO.1) | [2011] FMCAfam 205 |
| FAMILY LAW – Property settlement – application to proceed undefended notwithstanding attendance of the husband – non-compliance by husband with provision of documentation – consideration of additional expense incurred on behalf of the wife and second and third respondents – consideration of onus on applicant to prepare documentation and provide evidence – determination to proceed upon an undefended basis. |
| Applicant: | MR AMBERG |
| First Respondent: | MS AMBERG |
| Second Respondent: | MR VONSTEIN |
| Third Respondent: | MS VONSTEIN |
| File Number: | BRC 6912 of 2008 |
| Judgment of: | Coker FM |
| Hearing date: | 4 March 2011 |
| Date of Last Submission: | 4 March 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 4 March 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Fitz-Walter Lawyers |
ORDERS
That the matter proceed on an undefended basis.
IT IS NOTED that publication of this judgment under the pseudonym Amberg & Amberg & Ors (No.1) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 6912 of 2008
| MR AMBERG |
Applicant
And
| MS AMBERG |
First Respondent
| MR VONSTEIN |
Second Respondent
| MS VONSTEIN |
Third Respondent
REASONS FOR JUDGMENT
On 6 November 2009 proceedings were commenced in this Court by Mr Amberg. For convenience I shall refer to him as the husband. The respondent to the application was Ms Amberg the former wife of the husband and again for convenience, I shall refer to her as the wife. Additional to these parties however, in light of its nature seeking a declaration as to some trust being held in relation to property, the wife’s parents Mr and Ms Vonstein were included in the proceedings. I shall refer to them as the second and third respondents.
The matter has had what I might call a somewhat checkered career. There have been quite a number of orders and directions made in relation to the conduct of proceedings and on 9 December 2010 in fact, when the matter was listed for hearing it was not proceeded with, though to the parties’ credit, arrangements were able to be agreed in respect of the parenting orders to be put into effect with regard to the children [X] and [Y]. What occurred thereafter however, was that the matter was further adjourned to be proceeded with by hearing today.
At that time, directions were made with regard to the filing of further material in relation to the proceedings and in particular, it was noted that there were requirements with regard to compliance being effected with regard to prior directions, including trial directions and specifically in respect of provision of documentation. Whilst it is not exactly clear as to what the reason might have been for the order number 20 of the orders that were made on 9 December 2010, it is noteworthy that Purdon-Sully FM made order 20 as follows:
That within six (6) months from the date of these Orders, the Applicant pay to the Trust Account of the First, Second and Third Respondents Solicitors, Fitz-Walter Lawyers, a fixed sum of FIVE THOUSAND DOLLARS ($5000) towards the costs of these proceedings.
As best I can understand that order, it was not one which required the payment of costs but more appears to have been within the ambit of what might be called a security for costs, in relation to previous reserved orders that may have been made, as well as those which related to the inability to proceed with this trial on 9 December 2010. The main reason that it would appear that this matter was not able to be proceeded on 9 December 2010 was the situation that clearly continues to exist in relation to this matter, its readiness for trial.
On 20 July 2010 Purdon-Sully FM made orders in relation to what might be called, readying the matter for hearing and additionally made orders with regard to the parties’ attendance at a conciliation conference. The orders that were made by Purdon-Sully FM included as follows, order 3:
That both parties produce to the other twenty-eight (28) days prior to the conciliation conference all relevant documents as prescribed in Annexure A to this order.
Annexure A was then a lengthy recitation of documentation relating to both financial issues and also children’s issues. The matters in relation to children’s issues are of course not relevant in relation to this proceeding but with regard to the financial matters the following documentation was required and it was in a dot point form:
· List of all bank accounts
· Details of account numbers
· Passbooks and bank statements for the previous 12 months
· Details of Credit Union Building Society or other like deposit passbooks and statements for the previous 12 months
· Details and records of any investment including stocks and shares
· Income tax returns and assessments for the previous three financial years
· Social security pension or payment details
· Details, records of long service leave accrued
· Details, records of a overtime worked in the previous 12 months
· Superannuation documentation including a completed superannuation information required for Family Law matters form or a form which substantially complies with that form
· Valuation of real estate
· Valuation of chattels including cars
· Records and details of any life insurance or disability insurance
Thereafter the particulars sought related to issues with regard to the matters of the parenting of the children.
The conciliation conference report is dated 20 July 2010. It notes that at the conciliation conference on that day, the conference proceeded, the parties attended but no agreement was reached in relation to the issue of property as between the parties. The matter was then, subsequent to the conference, referred back to Purdon-Sully FM for trial directions.
The trial directions included the listing of the matter for 2 December 2010 for mention on that date to confirm that it was ready in all regards to proceed to trial. So as to ensure that the matter was ready to proceed to trial, Purdon-Sully FM made extensive directions in relation to information to be provided and also provided extensive directions in relation to the responsibilities associated with obtaining such information.
The Court orders 1 through 5 are relevant in relation to this matter. The orders were in this terms:
1. That within seven (7) days of today’s date, the Respondents provide the Applicant a list of any relevant documents outstanding that have been sought by way of disclosure.
As I understand it, such information has been requested and references made to that in the affidavit of Margaret Catherine Miller, the solicitor on record for the wife and her parents. Order 2 then goes on:
2. That within a further (14) days thereafter, the applicant also provide to the Respondents the following:
a.Form 6 Superannuation Information Form attached to an affidavit in relation to his interest in the [A] and [B] superannuation funds and any other superannuation funds held by him and not disclosed by him to date;
b.documents evidencing all income received by him since 1 July 2009, including any Social Security benefits received;
c.a market appraisal of any real estate in dispute;
d.a valuation of any chattels in dispute;
e.details and records of any investments held by him, including stocks and shares;
f.details and records of any long service leave accrued;
g.details and records of any overtime worked in the previous 12 months;
h.documents evidencing the contributions as outlined by him in paragraph 10 and paragraphs 51 – 53 of his unsworn affidavit provided to the Respondents on 29 September 2010;
and shall otherwise provide the documents as requested by the Respondents in Order 1 hereof, and if the requested documents are not in his possession, power or control he shall advise them accordingly.
As best I understand it the document referred to in order (2)(b) there is in fact the affidavit that was subsequently sworn on 1 November 2010 and filed by the husband. The paragraphs referred to therefore are, paragraph 10 which is in these terms:
At the date of cohabitation I owned the business [G] Australia. This business became a proprietary limited company in 2002. The company had plant and equipment at the date of cohabitation, the value of which I estimate was approximately $70,000.
The order of Purdon-Sully FM of 4 October 2010 required that the husband produce evidence in relation to that estimated valuation. As best I understand what has been put in relation to this matter, such documentation has not been provided.
Additionally the order required that the husband provide documents evidencing the contributions as outlined in paragraphs 51 to 53 of that affidavit. Paragraphs 51 to 53 of the husband’s affidavit, now filed 3 November 2010 is in these terms:
51.The average income I earned per week via contracting out my services as a [omitted] as well as other positions throughout the course of the relationship was as follows:
(a) 1995 - $1,400
(b) 1996 - $1,825
(c) 1997 - $1,400
(d) 1998 - $925
(e) 1999 - $850
(f) 2000 - $1,250
(g) 2001 - $1,475
(h) 2002 - $1,800
(i) 2003 - $2,100
(j) 2004 - $2,300
(k) 2004 - $2,600
(l) 2006 - $2,900
(m) 2007 - $3,300
(n) 2008 - $1,200
(o) 2009 - $900
(p) 2010 - $1,650
Paragraphs 52 and 53 are then in these terms:
52.There were approximately 120 days when my services were not contracted during the time that the first respondent and I lived in the [L] property.
53.In April 2000, I was contracted to [work at employer omitted. I remained as a contractor for this firm for a number of years. I used to [approximately earn between $2000 and $2250) per week.
Order 2(h) of the orders of 4 October 2010 required the production of documentation in relation to such information and finally concluded that the applicant was to otherwise provide the documents as requested by the respondents in order 1 and if the requested documents are not in his possession, power or control he shall advise them accordingly.
It is noteworthy that of course it is not only documentation in his possession but also documentation which is in his power or control which is required, because of course, there is often a situation where documentation is held by accountants, lawyers, financial advisors and others but who are required to act upon the direction of the person who is ultimately the owner of such documentation.
Additionally order 3 of those orders to which I have referred provides that the applicant shall attend to the lodgement of income tax returns for the previous three financial years and provide the respondents will copies of same, including any assessment within six weeks of today’s date. Six weeks of 4 October 2010 is of course mid-November 2010 and as best I understand what appears to have been provided in very recent time to the legal representatives for the wife and for her parents, are documents which have been prepared for lodgement but there is no indication that lodgement has occurred and there is certainly no indication of an assessment received from the taxation office.
Further, order 4 requires that within 14 days of the date, in other words by 18 October 2010, the applicant subpoena any relevant documents evidencing the contributions alleged to have been made by him during the course of the relationship. That has not occurred and again, as best I understand it, the applicant’s explanation in relation to that is that he was not legally represented from the time shortly after the making of those orders, that he was attempting to lodge documentation including subpoenas, but there was some technical fault in that respect, and that when he returned to Australia and appeared on or about 9 December 2010 he was not then in a position where he had the time or the capacity to lodge such subpoenas and therefore to seek the information that he was directed to seek, in relation to contributions said to have been made.
Finally it is noteworthy that order 5 requires that, in the event that there was no agreement reached in relation to any property in dispute, a single expert shall be appointed to report on the value of the property. It is not necessarily a relevant consideration in respect of this matter but again as best I understand the evidence in relation to the matter, there does not appear to have been any step taken with regard to the dispute, in relation to valuation of property.
What has flown from the making of those orders and the general concerns which are said to be expressed by the wife and her parents in relation to this matter, is that the husband has to all intents and purposes failed to comply with any and all directions in relation to production of documentation.
The affidavit which was filed by the solicitor Ms Miller on 22 November 2010 is in these terms:
(2) I refer to the Orders made by the Court on 4 October 2010 that required the applicant husband to make certain disclosure.
(3) I further refer to the List referred to in Order 1 of the orders, a copy being annexed to this affidavit and marked with the letters “MCM-1”.
(4)With respect to the disclosure ordered by the Court, the husband has not disclosed the following:
And then goes on to detail in subparagraph (a) (i) through (xvi) the documents that were required to be produced and have not been produced.
(a)Of the List provided to both the husband’s former solicitor and then forwarded to the husband upon being advised he had terminated Mr S’s retainer (Annexure”MCM-1”):
i.Pay slips for the last 12 months;
ii.Employment contracts for the last 3 years (only his current contract provided)
iii. Source documents used to prepare tax returns including group certificates, pay slips;
iv. The husband’s file held by the Bankruptcy Trustee for both bankruptcies during the marriage;
v. Child Support records showing child support records of payment from 2007 to the present time;
vi.Documents relating to the husband’s present claim against his parents’ estate;
vii.[G] Australia Pty Ltd’s financial accounts during marriage;
viii.Documents relating to the transfer of [G] to the husband’s brother including any consideration paid;
ix.Documents relating to [J] Pty Ltd including income, expenditure and business plan referred to at paragraph 74 of the husband’s unsworn affidavit;
x.Rental agreements for husband for the last 12 months;
xi. Copy of the husband’s passport showing entries and departures for the last 12 months;
xii.Documents relating to the alleged [T] liability (on Husband’s Financial statement);
xiii.Documents relating to payments received from [Ms/Mr M] (being large, regular credits on husband’s bank statements);
xiv.Documents relating to the value of the household contents;
xv.Documents relating to the alleged loan from Mr A (on husband’s Financial Statement);
xvi.Documents relating to alleged loans from [Ms/Mr F], [Ms/Mr E] and [Ms/Ms N] (on husband’s Financial Statement.
In paragraph 4(b) Ms Miller goes on to indicate that of the items in order 2 of the orders made by her Honour on 4 October 2010, further documents have not been disclosed and again they include documents numbered at (i) through (iv):
i. Form 6 Superannuation Information forms in relation to interest in [A] and [B] superannuation funds (but he has disclosed the most recent statements)
ii.Documents evidencing income received since 2009 (but has disclosed copies of 2009 and 2010 tax returns without supporting documents)
iii.Any valuation of chattels in dispute
iv.Documents evidencing contributions outlined in paragraph 10 and paragraphs 51-53 of the unsworn affidavit provided on 29th September 2010.
Additionally, it was noted that with respect to order 3, which related to the lodgement of tax returns and the provision of assessments, that such documents have not been provided nor did it appear and it is certainly the case that subpoenas have issued as a result of steps taken by the husband.
On behalf of the wife and the 2nd and 3rd respondents therefore, it is submitted that there has been inordinate delay and consequent expense incurred by the wife and her parents as a result of the actions, perhaps more realistically described as the inactions of the husband, in relation to this matter. The husband indicates that he has had extreme difficulties in relation to the proceedings. He indicates that his legal representatives withdrew and I note that in that regard the notice of withdrawal as a lawyer was filed on 14 October 2010 and in fact the notice of intention which was forwarded to the husband by those lawyers, Barry and Nilsson was a notice of intention to withdraw as lawyer dated 5 October 2010.
The husband says that subsequent to that he has had extreme difficulty in relation to obtaining any of the material that he was required to obtain pursuant to the directions in relation to this matter. In fact the husband’s indication from the bar table and I accept it as correct is that he has had since 9 December 2010 only one day, or at least weekday available to him within the Commonwealth of Australia, to take steps with regard to obtaining documentation and therefore he has been unable to provide the information in respect of the matter.
The fact is however, and it overrides much in relation to this matter, that the husband is the applicant in these proceedings. There is an inherent obligation that falls upon all parties to proceedings, but one would think perhaps because they commenced the proceedings the more overriding obligation is to ensure that the applicant, whether represented or not represented is able to fully present their case and more particularly to comply with all directions made in relation to proceedings.
Understandably the wife’s position and the position of her parents in relation to this matter is to say that, whilst the husband contends as he does and in particular as is contained within his affidavit of 3 November 2010, that he made significant contributions, that he earned significant income and that there were many financial dealings as between he, the wife and her parents, the obligation then fell upon him to produce documentation, in respect of the matter.
To rely as he does on bland statements of income, which even with the very limited information appears not to cross relate to taxation assessments which as I understand it have been provided for the years 1996 and 1998 and then to suggest that in any event there was inaccuracies there, but they were not the husband’s fault, gives rise to enormous difficulties experienced understandably, on the part of the wife and her parents.
The husband has the onus of pressing and prosecuting his claim. He has failed to comply repeatedly with directions of the Court. He has been advised of the intent of the Court with regard to proceeding on an undefended basis in relation to the matter particularly if there was, as is now the case, failure to comply in any respect of any real nature whatsoever, with the directions in relation to provide information of a corroborative nature.
There has been no compliance. The wife and her parents have been put to inordinate expense in relation to preparation for trial and that is evidenced one would think clearly by the order that was made by Purdon-Sully FM on 9 December 2010 with regard to moneys being paid to the trust account of the legal representatives for the wife and her parents, no doubt to be utilised if it were found to be appropriate toward costs in relation to these proceedings.
In any event there a requirement in relation to a payment to the trust account of the lawyers for the wife and her parents. There is no one responsible for the further difficulties in relation to this matter, than the husband. He may have had difficulties. He may have been absent from the country, but he had an overriding obligation and an onus in relation to compliance with orders and preparation for trial. He has failed to do so.
In my assessment there would be a greater injustice to the wife and to her parents if there was either an adjournment in relation to the proceedings or more particular allowance given to the husband to seek to rely upon uncorroborated evidence and statements made by him in relation to the affidavit which was filed on 3 November 2010.
I intend therefore to accede to the application made on the part of the wife and her parents, in relation to this matter proceeding on an undefended basis. Of course reliance can and will be placed upon material that has been filed in relation to proceedings but there is the obvious consequence for the husband that where there is dispute as to issues in relation to proceedings the weight that must be given to corroborated evidence provided by the wife and her parents would far outweigh the uncorroborated evidence of the husband in relation to these proceedings. The matter will proceed on an undefended basis.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 16 March 2011
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