Baine and Baine

[2013] FamCA 196

FAMILY COURT OF AUSTRALIA

BAINE & BAINE [2013] FamCA 196

FAMILY LAW – APPLICATION IN A CASE – where the wife seeks orders that the husband make immediate arrangements to ensure the Property S mortgage repayments are resumed, that the property be transferred to her and that the husband pay arrears accrued pursuant to orders previously made – where there is no appearance by or on behalf of the husband – where the wife says the husband has not been paying the mortgage repayments on the home as previously ordered and the Bank is now selling the property – where the wife is not named on the Title to the Property S – where the orders sought cannot be made without a determination of the husband’s financial circumstances – financial statement ordered – application adjourned.

Family Law Act 1975 (Cth)

APPLICANT: Ms Baine

RESPONDENT: Mr Baine

FILE NUMBER: ADC 721 of 2012

DATE DELIVERED: 2 April 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 2 April 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: C/- Roger N

Orders

1. Within fourteen [14] days of the date hereof the husband file and serve an Affidavit setting out his explanation for his failure to appear at the hearing today.

2. Within twenty-one [21] days of the date hereof the husband file and serve a Financial Statement.

3. The Application in a Case filed by the wife on 21 March 2013 be adjourned for further consideration to 9:15am on Monday 13 May 2013 before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baine & Baine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

File Number: ADC 721 of 2012

Ms Baine

Applicant

And

Mr Baine

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today an Application in a Case filed by the wife on 21 March 2013.  That Application is supported by an Affidavit of the wife also filed on
   21 March 2013.

2. The other party, the husband, has failed to appear today.

3. I am satisfied that the husband was served with the Application in a Case and the supporting Affidavit.  I am satisfied of that as a result of the Affidavit of Service filed by the wife on 28 March 2013.

4. Given the absence of the husband, I directed the wife to telephone the number that is shown on his documents in the context of his address for service.  Apparently that is an address of a Mr N, who I understand does not hold a practising certificate to practise as a legal practitioner.  The address is an office and there is a mobile telephone number identified.  The wife tells me that the office is the office of Mr N, and not the husband’s.  In any event, the wife did telephone that number at my direction and spoke with Mr N.  As the wife reports to me, Mr N indicated that he had not spoken to the husband for some time, that his recollection was that the husband always attended court hearings and he, Mr N, would get in touch with him about his absence today.  We have heard nothing further and I have proceeded with this matter in the absence of the husband.

5. I am extremely concerned at that behaviour by the husband in failing to attend this hearing.  I say that having in preparation for today read most, if not all, of the three volume file in this matter.  To be perfectly frank, the husband has a number of questions which need to be answered in relation to his financial circumstances, and I had intended to raise those questions with him today in the context of the application that is before me.  However, I have not had that opportunity, but when he attends, if he attends, on the next occasion, those questions may very well still need to be directed to him.

6. One particular issue which is in that category is the circumstance, and I will speak in generalities, of the business which he and the wife operated having been now transferred to a new company, the sole shareholder of which is the husband’s father.  As I have explained to the wife, there are a number of applications she could consider making in relation to that aspect of the matter, however, I cannot take that any further because the husband has chosen not to appear today.

7. The husband is also fortunate in that the wife does not have legal representation because, if she had, and if she had incurred legal costs in relation to today, I would have had no hesitation in ordering the husband to pay those costs.  He should be aware that by not appearing today he has not only caused this application to be adjourned, he has wasted the wife’s time and the Court’s time, and that is not insignificant.  This Court is run at the taxpayer’s expense and setting up and operating a Court incurs significant costs.

8. In the circumstances, I propose to order the husband file an affidavit explaining his failure to attend the Court today.

9. Now, to return to the application that is before me.

10. I stress that this is no criticism of the wife, because she is not legally trained, and although she has had lawyers acting for her, she is now acting for herself.  The application, although it contains six paragraphs, only comprises two orders sought amongst those six paragraphs, the balance of the paragraphs are statements as to factual circumstances that the wife says exist. 

11. The two orders that can be gleaned from the application that the wife seeks are first, that the husband make immediate arrangements to ensure that the mortgage repayments in relation to Property S are resumed, and the home be transferred to her ownership.  Secondly, that the husband pay the arrears accrued as a result of his failure to comply with previous orders made in this Court.

12. In relation to the first order sought, it is in relation to Property S where the wife and one of the children of the marriage reside.  The husband is the registered proprietor of that property, and as the wife understands it, it is subject to a mortgage in the vicinity of $700,000, and the mortgage repayments are approximately $4,000 per month.  That property is being sold by the ANZ Bank, which holds the mortgage, but because the wife is not on the Title, she has not been provided with all relevant information in relation to that.  She understands though that it is being sold by the Bank because of the husband’s failure to make the mortgage repayments since at least August last year, creating arrears in the order of $30,000.  The wife, of course, not being on the Title, has no control over what happens to that particular property albeit she is living in it.  She brought this application on an urgent basis because apparently the Bank had found a buyer for the property, and a sale was due to be settled on 8 April 2013.  I am told by the wife that that sale has fallen through, and thus the immediate urgency in relation to her needing to vacate the property as demanded by the Bank has gone.  However, it does not take away the urgency of the situation, given that the Bank is still apparently looking to sell that property, and will in due course again be requiring the wife to provide vacant possession.

13. That was the catalyst to the wife’s application in relation to the mortgage repayments, and also the transfer of the home.

14. As I have explained to the wife I am not in a position to make those orders today.  Having read the file I am aware that the husband says he has no money, no assets, and no income.  Prima facie then he is not in the position to make those mortgage repayments, and until and unless it is established otherwise, or that it is established that the husband has other resources available to him, then such an order would be futile.  I note in any event that the wife already has the benefit of such an order in that an order made on 31 August 2012 provided for the husband to make the mortgage repayments in relation to Property S.  He has failed to comply with that order, but as I have also explained to the wife, for me to make another order today that he pay the mortgage repayments will not enhance her position, or change the current circumstance.  Until it is found that the husband has the wherewithal, whether he has disclosed it or not, to meet the mortgage repayments, then, to repeat, the order that the wife seeks is really futile.

15. The other part of the order the wife seeks is that the home be transferred to her.  I am also not in a position today to make such an order.  I suspect that even if I did make such an order that would not, and could not, change the current circumstances without other applications and other orders being made.  Any transfer would have to be subject to the Bank’s rights pursuant to the mortgage, or if there was a suggestion that their rights would be affected in any way, the Bank would have to be joined and have the opportunity to make submissions, presumably in opposition, to such an order.

16. In any event, I have explained all that to the wife and I am content that she understands the Court’s position today in relation to that.

17. Similarly with the second order, namely the payment of arrears accrued pursuant to orders made previously.  For the same reasons that I have just explained, to make that order today would also be futile, and frankly, unnecessary given that the wife already has orders that the husband is to make the payments.

18. Without giving any legal advice to the wife I have indicated to her that there are other applications that she can seek.  I have already mentioned one such application, namely in the context of what has happened with the business, but there are also applications which she can make which would involve the Bank, but I need to leave that for her to consider, and to seek advice about it if she can.

19. In terms of the future conduct of this matter there is a further hearing listed before Justice Dawe on Monday 13 May 2013 at 9:15 am.  I propose to adjourn this application to that date, and in the meantime the wife needs to consider her position, and take advice, particularly about other applications that she might be disposed to make, and they can also be listed before Justice Dawe on that day.

20. That is a significant hearing in the context of the application the wife is making today because, primarily that hearing is to hear and determine the husband’s application to discharge the previous orders which required him to make various payments, including maintenance.  As I have explained to the wife for him to succeed in that application he would have to satisfy Justice Dawe that he has no assets, or resources, or income, or the wherewithal to meet those payments.  In that context that is the very question which needs to be answered to enable the wife to pursue this application that is before me today.

21. Thinking further about this matter and considering the issues that will be addressed by Justice Dawe on 13 May 2013, it seems to me that it would be appropriate to also order the husband to file a Financial Statement, noting that there has not been one filed by him for some time.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 2 April 2013.

Associate:     

Date:              3 April 2013