Batey-Elton and Elton (No 3)

[2010] FamCA 393

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON (NO. 3) [2010] FamCA 393

FAMILY LAW – PROCEDURE – Application for adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Batey-Elton

RESPONDENT: Mr Elton

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 27 April 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cronin J

HEARING DATE: 27 April 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Page

SOLICITOR FOR THE RESPONDENT: Rod Madsen

Orders

1. That leave be granted to the applicant wife to file an application this day.

2. That the wife’s application this day is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  TVF 2250 of 2004

MS BATEY-ELTON

Applicant

And

MR ELTON

Respondent

REASONS FOR JUDGMENT

1. By leave today, and without opposition to its filing, Ms Batey-Elton, to whom I shall refer as the wife, has brought an application that I adjourn a final hearing of her application under s 79A of the Family Law Act 1975 (Cth) (“the Act”). The documents were served upon the husband's senior counsel today. Whilst my determining this application is not opposed, senior counsel for Mr Elton, to whom I shall refer as the husband, does oppose the adjournment of the substantive proceedings.

2. The applicant wife seeks ten orders, some of which are not directly relevant to the adjournment, but they are indirectly.  I propose to refuse to make any of the orders sought, and these are my reasons.

3. The most efficacious way of dealing with the matter is to deal with the orders sought sequentially.  Before doing so, there is some background that requires mentioning. 

4. The parties separated in April 2004, and proceedings between them have been extant ever since.  Those proceedings have concerned both property and parenting matters.  Final orders in relation to all of the matters were made on 10 September 2004 by Monteith J.  Those orders, so far as they are relevant, provided for the wife to transfer to the husband the farming property and for the husband to pay the wife some money.

5. In September 2005, the husband took the wife to the Supreme Court of Queensland, to have her remove a caveat on the farming property. The Supreme Court judge made the orders, but they were conditional. The conditions included an injunction against the husband disposing of money. A week later, presumably on the urging of the Supreme Court, the wife filed an amended application in this court, seeking an order under s 79A, to set aside the orders made a year earlier. The wife was subsequently made bankrupt by her own solicitor, and the solicitor for the trustee made it clear, before me, when the case was listed earlier in 2010, that if the wife received any money from the husband, it would be claimed as property of the trustee. That becomes relevant to one of the orders now sought by the wife.

6. There were years of litigation that followed the 2004 final orders, including appeals to the Full Court of this court.  All of that culminated in me dealing with the parenting issues in August 2009.  That hearing proceeded as an undefended matter, ultimately in the absence of the wife.  The wife did not appeal against those orders. 

7. On 15 February 2010, the wife's s 79A application was listed before me. Over opposition from senior counsel for the husband, I adjourned the proceedings to today. I conducted the first day of hearing and made directions. Those directions included orders insofar as they are relevant to the wife, adjourning everything to today, permitting the wife to serve a set of questions relating to facts in dispute, permitting a registrar power to extend the affidavit filing times so that the hearing could proceed today, that the wife file and serve any affidavit material upon which she wished to rely by 19 March, that the wife have leave to inspect subpoenaed materials from the National Australia Bank by 22 February and that the registrar provide to the wife a copy of an affidavit she did not have in her possession.

8. Specifically, I made the following order:  the registrar issue any subpoenae requested by the wife, provided she can establish apparent relevance to the issues in dispute, as discussed this day.  In the event that the registrar is in doubt as to whether or not to issue such subpoenae, the matters be referred to me for hearing and determination.  The wife appealed against all of those orders.  Senior counsel for the husband provided me with a copy of the Appeal Court's decision and also some written submissions.

9. On last Friday, the wife's appeal was dismissed by the Full Court, save as to one matter, which is not relevant to the determination of this application today. 

10. It seems common ground that in respect of the orders I made on 15 February 2010, the wife did not serve the questions, did not seek to issue subpoenae, and did not file any affidavit material. 

11. In her application, therefore, today, the wife seeks to delay the final hearing and seeks a number of orders. 

12. Dealing with the application sequentially, the first order sought is that the proceedings be adjourned to a date to be fixed after the applicant has legal funding to properly prepare her case by getting relevant witnesses and expert evidence before the court.  In her affidavit in support of that application, the wife said at paragraph 5 that:  she had been denied legal funding; despite the “huge amount” that the respondent had spent on his legal costs; despite the substantial value of the marital asset pool;  despite her disability, namely, that she could not represent herself; and despite further being denied any available assistance at hearing, and in case preparation. 

13. The wife went on to say she needed legal assistance and it was simply not compliant with the law that she was not in receipt of the legal assistance for long enough before any final hearing to fairly and properly prepare. 

14. In respect of the application for litigation funding, there is no evidence before me as to where this money could come from, other than it should come from the husband. There is no power to make such an order, other than under s 80 or s 117 of the Act, because the power under s 79 has already been exhausted. No indication was given in the wife's material as to how the funds would be expended, other than on the legal expenses and witnesses to whom I have referred.

15. None of the matters referred to in s 117 were set out, bearing in mind that that section requires that each party should pay their own legal costs, unless there are circumstances to justify a departure from that particular provision.  There is no evidence of that. 

16. Importantly, the wife was but is no longer, a bankrupt.  I have the assertion of the trustee that he will take any money provided to the wife from the husband.  The wife does not address that issue and if the order could be made, there is no evidence as to how it might then be rendered nugatory.  There is no basis, therefore, for me to make the first order sought by the wife. 

17. The second order sought requires the court to stay any hearing until the resolution of the “Constitutional writs” sought by the wife. I have asked the wife whether the writ has been issued. She said it had not. I asked the grounds that she might rely upon and she said that she had read the Constitution and that the High Court of Australia had power to issue a prerogative writ.

18. The wife made clear she was reviewing the order of the Full Court from last Friday, but not by way of special leave application.  Without such an application already being filed in the High Court of Australia, there is no basis for me to grant the wife’s application.  If the application was read as a stay application, none of the principles set out in any of the authorities could be seen here, on the material provided.  There is no basis, therefore, for me to make the second order sought. 

19. The third order sought is that she have 14 days to file amended further particulars of her claim, based on s 79A of the Act, and that such particulars include all parts of subsection 1(a) and (c).

20. In her affidavit in support of the application, the wife said that at the last hearing on 15 February, the reference to a document prepared by pro bono counsel, Mr Baston, was raised. She said she had not seen the document, and she still had not seen it. She said Mr Baston did speak to her at one time about clarifying the grounds of her s 79A application. She said she was not "in agreeance with his erroneous view of my facts", and she told him so. She said she was not aware that he had later prepared something, apparently different, from what she had authorised, and that he had apparently filed the document in her absence. She said the last time Mr Baston represented her was in May 2007, and on that occasion there was an exchange between them, in which he indicated that if she did not remain quiet, he would not represent her. She said she had not heard from Mr Baston since that day. In her view, Mr Baston “left her in the lurch”.

21. The wife then went on to say that Mr Baston handed to the judge, in an unrecorded chambers hearing to which she was not invited, a document purporting to particularise her s 79A application. She said this was the first time she had heard about this, in the hearing before me on 15 February, when I “badgered” her to adopt whatever Mr Baston had done in her name. She said she was “harangued” into saying that she accepted Mr Baston's incorrect view of her case, or be left with nothing at all. I reject the fact that the wife was badgered or harangued in any way. The discussion was quite clearly held on 15 February, and it revolved around the grounds upon which her claim was made. In this particular case, the wife has not only had months since the February hearing, but also years. She now says that she intends to rely on s 79A(1)(a) and (c). This is not a court of pleadings, but the evidence is what it is. Insofar as the evidence filed thus far points to such a claim, the husband is aware of it, and can no doubt meet that. Under those circumstances, I am not prepared to grant the third order sought by the wife.

22. The fourth order sought is that the husband be dealt with for contempt of court. 

23. The wife seeks that the husband be dealt with for the contempt of two orders, and maybe even more. The first relates to an order of the Supreme Court of Queensland, and another relates to an injunction of this Court. Despite raising the subject of how I could deal with an application for the husband to be dealt with for breaching a Supreme Court order, the wife made no comment. The wife refers to the fact that she is without legal representation. I can think of no basis in the Act under which I could deal with a contempt of the Supreme Court of Queensland.

24. In respect of the Family Court injunction, that is not a basis to stay or adjourn these proceedings.  The wife has had years, since 2005, to bring those proceedings.  The only evidence that the wife presented in respect of that particular application was set out in paragraphs 9 and 10 of her affidavit.  She said that I insisted that I would take no action whatever, no matter what the circumstances of the evidence, without a formal application, and hence, she had brought it.  She then set out the reasons why she wanted the husband dealt with for the flagrant contempt of this Court, in respect of a variety of activities.  She said it was only after she had recently obtained the transcript that she discovered that the husband, under oath, gave his address as another rural property.  It seems, from a comment made by senior counsel for the husband, that that may have been a misdescription in the transcript, and the husband is still living, according to his senior counsel, at the property which he was living at some years ago.  There is nothing in either paragraph 9 or 10 of the wife's affidavit which seems to me to affect the question of these proceedings.  If the wife wishes to proceed to have the husband dealt with for contempt of an order of the court, she can do so.  But that is not a basis upon which I should adjourn these proceedings. 

25. The fifth order sought by the wife is, effectively, an order for discovery.  She requires the husband to produce evidence and account for all of the livestock from H Station, including stock that may have been dissipated and hidden from the jurisdiction of the court.  I propose not to make that order for two reasons.  The first is that the subject of stock was a matter of some considerable discussion on 15 February 2010.  At that stage, I made orders that the husband provide to the wife various returns that would have shown the trail of livestock in the books of accounts of either the husband and/or his corporate entities.  However, just in case that was not sufficient or the wife required further evidence to pursue, I made the order that I earlier referred to in paragraph 15, which would have given her an opportunity to issue subpoenae against the various stock and station agents.  She did not do so.  On that basis, there is no reason for me to say there is any prospect that she will do so in the future.

26. The wife then sought for the court to order the involvement of a trustee to take over a variety of properties, including corporate entities. In respect of those matters, I have trawled through the wife's affidavit carefully, looking for some evidence that might justify the court making such an order, if it had power to do so. In this case, there is no reason for me, bearing in mind that the husband is the owner of the property and the wife is seeking an order under s 79A, to make such an order. On that basis, I decline to make orders in terms of items 6 and 7.

27. The wife then seeks that she have leave to issue subpoenae of her choice with an early return date and leave to view with persons of her choosing and copy any materials so produced.  Again, I refer back to the orders that I made in February, and particularly paragraph 15.  The wife has sat on her hands since 15 February in respect of that issue.  Insofar as she had an appeal pending, I think I made it abundantly clear on 15 February that she had to prepare for this trial, regardless of what course of action she took in respect of the appeal.  The applicant also seeks that she have leave to issue subpoenae of her “choice”.  That is not an order that a court should ever make.  Any person who seeks to issue subpoenae must show relevance to an issue in dispute.  No evidence has been presented to me which would indicate that there is a basis to issue an unlimited number of subpoenae in this particular case. 

28. She also sought that she have leave to view any subpoenaed material with persons of her choosing.  In the orders that I made on 15 February 2010, I gave her permission to inspect documents produced under subpoena by the National Australia Bank, but excluded Mr B.  The Full Court last Friday ruled that that order was inappropriate.  In the circumstances, however, it seems to me that as I gave the wife an opportunity to issue any subpoenae, and she has not done so, it is not appropriate for me to make orders in terms of paragraph 8.

29. The wife then seeks that the order that I made on 15 February constraining Mr B attending the court until further order be “dismissed”.  She sought an order that Mr B be given leave to assist as an advocate.  In respect of those two matters, I observe in respect of the second point, the Full Court has dealt with that issue and made it clear, from the reading of the judgment that I have now had - that Mr B cannot appear as the advocate for the wife.  On that basis, there would be no reason for me to grant the application in those terms. 

30. The wife also sought that the injunction in relation to Mr B be “dismissed”.  The Full Court said that if Mr B was respectful and, in my words, behaved himself, then there might be an opportunity for Mr B to actually attend the court.  My attention was drawn to the submissions filed on behalf of the wife for the purposes of the appeal, and it is quite clear that Mr B’s influence is in those documents, and I see no evidence justifying a discharge of that injunction.  I note that the Full court did not discharge it.  On that basis, there is no reason for me to make an order in terms of item 9. 

31. In respect of item 10, the wife sought a variety of orders, particularly in relation to the Court being restrained, effectively, from altering or lifting injunctions in place, so that the husband could not deal with the property known as DB prior to appeals and Constitutional writs, and also the involvement of the trustee, to which I have earlier referred.

32. Having regard to the fact that there is no basis for me to make an order relating to a stay, because there is no Constitutional writ issued, nor is there any legal basis for me to issue an order relating to the trustee, it seems inappropriate for me to make an order in terms of item 10. 

33. The wife seeks an order that the stay be in place for a period of 28 days, so that she could appeal.  It seems to me that that is a presumptuous application, and I ought not grant it in those circumstances. 

34. On that basis, there is no ground for me to grant any of the orders in numbers 1 to 10 of the application filed with leave this day.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 May 2010