Carson and Carson (No 2)

[2017] FamCA 518

FAMILY COURT OF AUSTRALIA

CARSON & CARSON (NO 2) [2017] FamCA 518

FAMILY LAW – INJUNCTIONS – amendment to make intent clear – no response by husband – matter set down for trial.

FAMILY LAW – COSTS – where husband’s lack of activity justifies an order for costs.

APPLICANT: Ms Carson

RESPONDENT: Mr Carson

FILE NUMBER: MLC 5515 of 2017

DATE DELIVERED: 5 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Combe

SOLICITOR FOR THE APPLICANT:	MST Lawyers
THE RESPONDENT:	No appearance

Orders

1. That paragraph 2 of the orders made on 15 June 2017 is varied to read:

   Pursuant to s 90MU and s 90MS:

   (a)the trustee of B Super is directed not to make any splittable payment in respect of the interest of the husband without leave of the court; and

   (b)the trustee is to notify the member (Mr Carson) and the non-member spouse (Ms Carson) within seven days of any occasion when a splittable payment becomes payable in respect of the husband’s interest in the said fund.

2. That paragraph 2 of the said orders is also varied to read:

   Pursuant to s 90MU and s 90MS:

   (a)the trustee of C Super is directed not to make any splittable payment in respect of the interest of the husband without leave of the court; and

   (b)the trustee is to notify the member (Mr Carson) and the non-member spouse (Ms Carson) within seven days of any occasion when a splittable payment becomes payable in respect of the husband’s interest in the said fund.

3. That paragraph 5 of the orders made on 15 June 2017 is varied to read that the husband is to file and serve the documents stated in that order by 4.00pm on 26 July 2017.

4. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 11 September 2017 subject to any part heard case as a one day case.

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

   TIMETABLE:

6. By 4 pm on 11 August 2017 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)all affidavits of evidence to be relied upon (save as to valuation evidence which can be filed by as late as 4.00pm on 7 September 2017).

7. If the husband failed to comply with these orders relating to the filing and service of the relevant documents, the wife has leave to seek to proceed on an undefended basis on 11 September 2017.

8. The applicant pay all required court fees by 4 pm on 11 August 2017.

9. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

SUBPOENAE

1. 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.

2. By 4 pm on 7 September 2017 all parties file electronically to …  a case outline in one document setting out:

   (a)    the outline of the issues in dispute;
   (b)    the list of the affidavits to be read;
   (c)    a concise set of orders to be sought;
   (d)    the list of objections to evidence requiring a ruling;
   (e)    a list of assets and liabilities.

   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.

3. That service of these orders upon the respective trustees be made by the solicitors for the applicant wife immediately.

4. That the husband be served with these orders by email to: …

5. That the husband pay the wife’s costs fixed in the sum of $3600.

6. That all outstanding interim applications are otherwise dismissed.

7. That the reasons this day be transcribed and be placed on the court file.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5515  of 2017

Ms Carson

Applicant

And

Mr Carson

Respondent

REASONS FOR JUDGMENT

1. On 6 June 2017, Ms Carson (“the wife”), filed an application that satisfied the registrar about urgency to list a hearing on 15 June.  The application sought injunctive orders, particularly in relation to superannuation. 

2. The matter came on before Johns J on 15 June, and there was no appearance of Mr Carson, (“the husband”).  There is an acknowledgment of service, albeit no confirmation that that is his signature, signed on 7 June.  There is an affidavit of service to indicate that on 7 June in G Town in Western Australia, the husband was served personally with the documents and responded at the time that “all she had to do was ask”. 

3. The husband seems to currently be in Asia, although that is not entirely clear.  He has corresponded to the Court indicating by an email on 26 June that he acknowledged an order was made on 15 June by Johns J.  He said he resides in F Town in Victoria for about eight weeks per year, and otherwise his employment has him travelling in WA, Queensland and Asia.  He said that he was currently working in Asia and would not return to Melbourne until 13 July.  He said he apologised to the Court for not being able to attend in person on 5 July due to work commitments, but he would comply with the interim order made on 15 June and had no objection to this order being made ongoing. 

4. It is a courteous reply, but it was not sent until 26 June.  He was obviously aware, having being served personally, of the hearing on 15 June, and it is a little late after the horse has already bolted. 

5. Johns J was sufficiently concerned about the evidentiary material to make an order restraining the husband from effectively accessing his superannuation entitlements in what appears to be two funds.  Her Honour then made an order restraining the trustees of the two funds from making any payments in respect of the husband’s entitlements.  I think it is sufficiently unclear as to what powers are being exercised in that order, noting that her Honour simply repeated what the solicitors had drawn in their application. 

6. The power should have probably been exercised under section 90MU, which is a specific flagging order, and that particular provision sets out directly what the trustees can or cannot do.  In any event, the husband has not attended today, and there are other outstanding issues in the application, but they are not being pressed.

7. The more important solution to this problem is to have a trial as quickly as possible, and on the basis that Mr Carson seems to say that it is not a complicated matter – and I interpolate here that it is a long marriage where there are children – he said all the wife had to do was ask.  I am expecting him to be cooperative.  That said, he has not complied with Johns J order that he file material by 30 June, so the court is unaware of what position he is adopting in relation to the wife’s application.

8. Because of his courteous response, I will give him an extension of time, but if the matter is as simple as what it appears, then it should not take very long to sort out, as the parties in this case have a very limited amount of equity in property, and the bulk of it seems to be tied up in superannuation. 

9. There may be some problems with valuing the C Super, because my experience is that it is a defined benefit fund.  Be that as it may, I presume that the matter is not complicated and it can be heard within a day.  On that basis, I have set the matter down for trial on 11 September as a one-day matter and directed the wife to plead with particularity. 

10. I think it is also sensible that notwithstanding the courteous nature of the correspondence, the husband has to file a very clear set of proposed orders so that the wife understands whether she has a dispute on her hands;  equally so, the Court.  On that basis, I have extended the time for him to file material.

11. The trustee needs to be served forthwith in relation to the flagging order, but so too the husband needs to be served with the documents, including this order.  He seems to prefer electronic communication and has written to the case coordinator of the Court in an email form.  I think it is more sensible and direct to get the documents to him at that address, so I shall put that into the order.

12. On the basis that the other matters are not being pressed today but may still be alive as a dispute between the parties, those can also be determined at trial if necessary. 

13. The absence of the husband today gives rise to an application for costs both today and on the last occasion.  Johns J decided on the last occasion that costs should be reserved.  The husband had been given notice of that application and he was in Australia at the time that the documents were served upon him, so he had at least a week to deal with the matter either by way of attending or filing documents, or indeed making some arrangement with the wife.  There is nothing in the material to indicate that the wife was ever told what he was doing, and therefore at first blush he has simply ignored the hearing.  As I said, his courteous response would indicate the opposite, but he did not send that until 10 days later.  On that basis, he is at risk on the question of costs. 

14. Similarly, Johns J made an order adjourning the matter until today, and the husband has again not appeared.  Even though he says that he is out of the country, there is no logical reason why he cannot engage someone to appear and endeavour to have the matter sorted out. 

15. Section 117 of the Family Law Act 1975 (Cth) provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify departure from that principle. If the Court thinks there is such a justifying circumstance, it must consider the matters set out in section 117(2A) of the Act.

16. In my view, there is a justifying circumstance to make an order here because the husband had ample opportunity to at least approach the wife, her solicitors or the Court, to deal with the matter on 15 June and he did not do so.  Whilst his post-order confirmation certainly solves one problem, he does not indicate how he intends to approach the pending litigation.  He should have been here today or had someone representing him here today, and on that basis, that justifies the order for costs.

17. Under section 117(2A), I am not aware of the financial circumstances of the parties together, but I can see from the financial document filed by the wife on 6 June that she has a limited amount of income each year, and the property in this particular case is modest. I take into account the husband was aware of the orders and has chosen to take the course that he has. On that basis, there ought be an order for costs.

18. Originally the application was for the brief fees of both counsel on two days and some solicitor’s fees.  In my view, the solicitor’s fees can wait until trial.  There is no logical reason why I should depart from the scale in this particular case, and I intend to make an order for $1800 in each case, a total of $3600, and there being no appearance by or on behalf of the husband, those costs are payable forthwith.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 July 2017.

Associate: 

Date:  19 July 2017