Archer and Archer (No. 2)

[2012] FamCA 357

FAMILY COURT OF AUSTRALIA

ARCHER & ARCHER (NO. 2) [2012] FamCA 357

FAMILY LAW – PROPERTY - Interim property orders – Adjournment of s 79 final hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Archer

RESPONDENT: Mr Archer

FILE NUMBER: MLC 3773 of 2011

DATE DELIVERED: 23 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 23 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Portelli

SOLICITOR FOR THE APPLICANT: Wainwright Ryan Eid Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT as an interim settlement of property, and inclusive of the monies ordered to be paid to the wife pursuant to paragraph 2 of my earlier orders dated 28 March 2012 the wife’s solicitors are now empowered to pay to the wife the whole of the proceeds of sale of the former matrimonial home situate at … S Street, Suburb C in the State of Victoria, and all interest accrued thereon.

2. THAT a sealed copy of this Order and the extempore reasons for judgment delivered this day and the transcript of evidence of the parties’ daughter Ms M be forthwith served upon the husband at his Lebanon address by both registered post and email.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

4. THAT the evidence as to service given by the parties’ daughter, Ms M be transcribed, placed upon the Court file and made available to the parties.

5. THAT the wife’s costs of and incidental to the hearing this day, inclusive of Counsel’s fees and the attendance of solicitors on her behalf are fixed in the sum of $1,400 and the question of payment thereof be listed to the adjourned defended hearing date.

6. THAT all extant applications be otherwise adjourned for further case management or direction before Young J and to be listed at 10.00 a.m. on Monday 17 September 2012.

7. THAT the wife retain sole ownership and possession of the two (2) motor vehicles and all other furniture, chattels and personal effects as were identified in paragraph 22 of her affidavit filed 21 March 2012.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Archer & Archer (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 MELBOURNE

FILE NUMBER: MLC 3773 of2011

Ms Archer

Applicant

And

Mr Archer

Respondent

REASONS FOR JUDGMENT

1. The matter of Archer returns to Court this day and Ms Portelli of Counsel represents the wife, who is in Court, along with her two daughters.  Counsel’s instructing solicitor is also present.  The matter was last before me on 28 March 2012 and on that occasion I ordered an interim property sum of $100,000 to be paid to the wife from the ANZ Bank account where the proceeds of sale of the former matrimonial home at S Street, Suburb C, were then invested. Post that hearing the wife’s solicitors have served upon the husband various documents including a sealed copy of those orders, a brief extempore reasons for judgment that I then delivered, and an amended initiating application which they had filed in this Court on 11 April 2012.

2. There is an affidavit filed in this Court on 17 April 2012 by a law graduate employed in the wife’s solicitor’s firm, Ms P.  That affidavit deposed to serving, by registered post and by email, copies of the documents upon the husband at his last known residential address and also at his last known email address.  I accept that those documents were so dispatched.  During the hearing today evidence has been given by a daughter of the parties, Ms M, who deposed to the currency of the husband’s email address in early 2011, and more recently gave evidence of her observations of the husband when she was recently in Lebanon.  She is of the firm belief that the husband continued to reside in that apartment in …, North Lebanon, which is the address to where the Court documents were recently posted.

3. On balance, and given the history of these proceedings in this Court, the fact that the husband formerly had solicitors, the fact that he most likely retained that email address, and predominantly, that he lived in the apartment at the particular address identified by his daughter and to which documents were served, I conclude, for the purposes of an interim property hearing today, that he has been properly served.  Turning to the application before the Court, it was contemplated by counsel who last represented the wife that there were to be final orders sought this day.  Indeed, the documents have seemingly been prepared on that basis.

4. True it is that the wife seeks all of the Australian assets.  What that means is that the balance of moneys of the sale of the matrimonial home, currently invested in an ANZ Bank account in the name of the wife’s solicitors on trust for the wife, and all accrued interest, are to be paid out to the wife.  The other assets are two motor vehicles:  a Kia motor vehicle and a Ford.  There is minimal value or equity in those two cars and they are registered in the wife’s name.  Otherwise, in Australia, there are no jointly owned assets or no other assets owned by the husband of which the wife seeks ownership or possession.

5. I have already made an order for the payment of $100,000 as an interim settlement of property to be paid out to the wife, pursuant to paragraph 2 of the orders dated 28 March 2012.  I was advised from the bar table today that these moneys are yet to be paid out and remain in the ANZ investment account.  The remaining property of the parties is located in Lebanon.  They are identified by the wife in her affidavit filed 21 March 2012 and, in particular, paragraphs 40-50 (inclusive).

6. The issue that has occupied some time of the Court today is that, in paragraph 42 thereof, it is identified that two properties in Lebanon remain registered in the joint names of the husband and wife as tenants in common.  Evidently it is even more complicated because that affidavit records as to one of the properties that 67.64 per cent thereof is held by the husband and herself.  Whether that means another individual or company holds the remaining interest of approximately 33 per cent is not properly identified in the Court documents.

7. As it transpired from my questioning of counsel and from the further instructions which counsel and solicitor took from the client, her intent today was to obtain orders for all of the Australian assets but to preserve her rights on title to each of those Lebanese properties in which she and her husband have an interest as tenants in common. That, of course, could leave alive those overseas assets and thus there would be property of the parties remaining to be divided. I have indicated that I will not make a final order under section 79 of the Family Law Act 1975 (Cth) unless it deals with all of the assets of the parties. The purpose of section 79 is primarily for final orders to be made.

8. In any event, I remain uncertain whether the documents served by post and email upon the husband made it clear to him so that he would understand the wife wanted to retain the ongoing joint ownership of those two Lebanese properties identified in paragraph 42 of her affidavit.  That must most certainly hereafter be clearly conveyed to the husband and that is an ongoing obligation which is imposed upon the wife’s solicitors. 

9. I am satisfied that in the wife’s current financial circumstances, it is proper that there be an initial hearing and that interim property orders be made.  I was so satisfied of that situation on 28 March of this year when I made the earlier order and, in effect, I am making a further extended interim property order this day.

10. I will order that, as an interim division of property, all moneys and interest invested in the ANZ account be paid out to the wife.  She then is responsible for paying her legal and other costs, of and incidental to this hearing, and she then may retain the balance of those moneys, pending any further order of the Court.  

11. I was then asked to adjourn all proceedings sine die.  Given that there are ongoing proceedings because there is as yet no final property order, I intend to maintain some level of management and control over these proceedings.  What I will do is to adjourn all extant applications to Monday, 17 September 2012, to be listed before me at 10.00 a.m.

12. I do not require the wife’s solicitor to brief counsel on that day.  I do not necessarily require the attendance of the wife and her family at Court.  I simply want to be told on the day of the currency of these proceedings, what other issues have developed, and it affords to the husband an opportunity to file documents or to raise issues with the Court, if he so chooses.  I will likely have limited time on that day as there is a listed defended matter then proceeding before me, that I proceed on the basis that any issue will be limited in duration, and if there is to be any defended hearing, it will then be adjourned for a defended hearing or for further documents to be filed or other matters addressed.

13. In the meantime, the wife’s solicitors must serve a sealed copy of the orders that I make today, together with my settled extempore reasons for judgment, upon the husband by post and email.  What would be prudent would be for the husband to be contacted on any available telephone number to be told of the proceedings and the outcome and of the issues surrounding the jointly owned properties in Lebanon.  If the wife elects to commence proceedings in Lebanon in respect of those properties, then she should do so as soon as practicable.  If there is to be any negotiations for the sale of those properties and the division of moneys between the respective owners then, likewise, that should now occur.

14. In any event, I record that it was unlikely that final s79 orders could be made, as the wife’s counsel, on instructions, complains of lack of discovery and financial disclosure by or on behalf of the husband. Final orders are normally only made when parties are satisfied that there has been proper financial disclosure and each of them knows of the assets, liabilities and income of the other. Clearly, that is not the case here and presumably, final orders were sought as a matter of financial convenience and to avoid further costly Court hearings and legal procedures.

15. Ultimately, it was the wife who elected and so instructed her counsel that interim orders be sought today, and that is the basis upon which I have now proceeded. I am satisfied, on the basis established by the Full Court in Strahan’s case, that there should be such an interim hearing and that a just and equitable outcome carefully considering the matters incorporated within s75(2) and s79(4), are for the moneys arising from the sale of the former matrimonial home to be paid out to the wife.

16. In due course, there will have to be appropriate service documents with the Court as to service of these orders upon the husband and to validate any continuing proceedings.  I will have the evidence of the daughter transcribed and placed upon the Court file, and likewise, the husband is entitled to that transcript of evidence.

I certify that the preceding sixteen
(16) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 23 April 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………