Danes and Danes

[2007] FamCA 1655

FAMILY COURT OF AUSTRALIA

DANES & DANES [2007] FamCA 1655

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal

Family Law Act 1975 (Cth)

APPLICANT: Mr Danes

RESPONDENT: Ms Danes

FILE NUMBER: BRF 9578 of 2000

DATE DELIVERED: 12 December 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Justice O’Reilly

HEARING DATE: 12 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person  

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:
SOLICITOR FOR THE TRUSTEE	Mr Box

Orders

1. I will order the husband's application filed on 17 November 2002 and the wife's application, by her amended response, filed on 5 January 2004 each for a just and equitable division of their property under s.79 of the Family Law Act 1975 are dismissed

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 9578 of 2000

MR DANES

Applicant

And

MS DANES  

Respondent

REASONS FOR JUDGMENT

1. On 21 December 2004 I, at the conclusion of s.79 property proceedings between the parties between 10 and 20 May 2004, pronounced what I then considered to be a final property order under s.79 of the Family Law Act. The order which I made contained what I then considered to be a machinery provision for the appointment of a trustee to sell all of the assets of C Limited and after the payment of certain matters and debts set out in the order to hold the balance proceeds in a trust account, pending further order of the Court as to the amounts to be paid to the husband and the wife, my then having already determined that the asset pool was to be split 55 per cent/45 per cent.

   RECORDED  :  NOT TRANSCRIBED

2. It appeared to me then that the trustee holding the balance, pending further order of the Court as to the amounts to be paid to each of the husband and the wife, left to the Court a merely calculation or machinery function.

3. Pursuant to the s.79 order I also, by par 9, appointed Mr M, a partner with P Firm, as a single expert witness to report to the Court his opinion as to the correct balances in the husband's and wife's loan accounts with C Limited so that I could act on that opinion to insert those values into the schedule of property and thus also to obtain a value to insert into pars 1 and 2 of the order to add up the figures to ensure a 55/45 per cent split. Again, at the time of pronouncing that order, I considered that to be a future machinery exercise. By par 15 of the order I adjourned the matter for mention on 4 February 2005 in respect of two matters which, again at the time, I considered to be machinery matters.

   RECORDED  :  NOT TRANSCRIBED

4. On 4 February 2005, pursuant to par 5 of the s.79 order, I appointed Mr M also as the trustee for the purposes stated and made directions for the preparation and filing of his expert report pursuant to par 9 of the s.79 order and gave reasons on that date for the orders then made.

5. On 16 September 2005 I discharged Mr M's appointment as the trustee for the sale of C Limited and stayed the s.79 property order for reasons I provided on that date.

6. On 5 November 2005 the wife became a bankrupt. On 15 November 2006 on the application of the wife's trustee in bankruptcy by his counsel, Mr Coulsen, I was persuaded that what I had considered to be a final s.79 property order made on 21 December 2004 indeed was not a final property order, and I gave reasons for that determination on that date. In order to record procedural fairness in relation to directions for the future of the matter I stood it over until 29 November 2006.

7. On 29 November 2006 I vacated pars 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of what I had previously considered to be the final s.79 property order, and pursuant to r.15.45 of the Family Law Rules 2004 I appointed Mr W, chartered accountant, as a single expert to report to the Court his opinion as to the balance of the husband's and the wife's loan account for C Limited as at 31 December 2006, and the value of the C Limited shares which are held by the husband and the wife. I ordered that the parties must cooperate with the expert and set in place various other directions including the filing and serving of updating affidavit material by the husband and the wife as to the nature and value of the assets in the pool, the contributions of the parties, any relevant s.75(2) matters, any just and equitable considerations, and I listed the matter for further directions on 8 March 2007.

8. I will intersperse here.  I need to check the record and if I have made an error in the record I will correct it in editing.

9. Subsequently, I fixed trial dates for the matter for three or four days, I will check this in the editing process, to commence on 8 May 2007.  The matter did not, unfortunately, proceed to continuation of the trial and after mentions and further directions, on 13 February 2007, 2 April 2007 and 4 May 2007 it was necessary for the trial dates to be vacated because neither the husband or the wife was able to make the necessary arrangements for Mr W to comply with his single expert obligations.

10. The result is that since then I have brought the matter on several times to see whether or not the Court could be of further assistance to the husband and the wife.  The matter thus came on on 8 June, 7 August, 31 October, 9 October and finally today.  On each of those occasions the reason that I was prepared to postpone the matter yet again into the future for a month or two was initially, at the request of Ms Challenger, the solicitor for the trustee, that negotiations were ensuing between the trustee, the husband and other claimants including, I think, a claimant third party with a claimed charge over the wife’s shares to reach agreement.  As at 9 November 2007, that is last month, I was told that there was an agreement but that the wife had not signed it.  I suggested to her that I would give a further adjournment until today to enable her to take legal advice if she wished, but frequently I have explained that there is a limit to the number of times I can simply adjourn this matter into the future.

11. Today it has emerged, and I am satisfied that the Court can no longer be of assistance to the parties. That has arisen in this circumstance: the deed, I am told by Mr Box, solicitor today appearing for the trustee, that the deed which the trustee wished the wife to sign made provision not only for her shares and other assets which vested in the trustee, but also made provision for finalisation of the s.79 proceedings between the husband and the wife which, of course, cause of action did not, as is plainly understood, vest in the trustee, however, the trustee's best intentions of assisting the parties by wrapping everything up in one deed, I am afraid have failed because the wife will not sign the deed. I am, of course, not critical of her for that. That is entirely a matter for her decision, no-one else's.

12. In the course of argument today, by way of procedural solution, Mr Box has made clear to me, which I would have thought plain because the wife’s property, other than the cause of action vest in the trustee, that there is the time now to separate the trustee's role, for him to do what he must do and my role, for me to do what I must do.  The trustee thus may, if he wishes or is advised, draw up some new deed in relation to the wife’s property that has vested in the trustee.  That has nothing to do with the Court or me.  The trustee then, even without the wife’s consent or signature, can deal with that property. 

13. My role is limited to the s.79 proceedings and what properly, in the exercise of my discretion now, I ought do with them. The trustee is an intervener.

    RECORDED  :  NOT TRANSCRIBED

    Mr B is an intervener, having been granted leave to intervene on (a date I will insert in the edited reasons).  The associate, on 13 June 2007, wrote to the parties, including the solicitor for the trustee in the following terms:

    Her Honour has asked me to confirm what you stated in Court on 8 June 2007 that at the next listing date, 9.30 am on 7 August 2007, unless the parties seek a consent order for the dismissal of their respective s.79 applications, her Honour presently intends to exercise her discretion to dismiss those applications on the basis that the point has been reached for reasons previously given by her Honour that she is unable to make a just and equitable order between the parties.

14. On 7 August 2007:

    Her Honour would not make that order only if the trustee or the parties should indicate that it may interfere with the current negotiations between the parties.

    Then there was reference in the letter to an equitable mortgage claim in relation to the wife’s shares which I have already mentioned.

15. The Court's function is to hear and determine disputes properly before it within its jurisdiction. Under s.79 the Court is empowered to hear and determine property proceedings between spouses or former spouses. However, in order properly to perform its function the Court needs parties to place before it relevant evidence. In this case, since the vacating of certain paragraphs of the order which I made on 21 December 2004 in recognition that the purported s.79 order I made on that day indeed was not one. Neither the husband nor the wife has been able to provide to the Court necessary evidence to continue its function.

16. It is not my role to come here month after month after month to afford the parties further opportunity to bring on their dispute and file necessary evidence. These days all Courts operate on the basis of case management to ensure that its valuable resources are properly applied to litigants' needs. I am afraid that in this case I have become satisfied that today is the day that I ought to exercise my discretion simply to dismiss the parties' s.79 applications, in effect, for want of prosecution but, more particularly, because neither party has been able to supply the expert evidence of Mr W or any other expert to which I have referred, and it is plain that in those circumstances I am not able to perform my statutory function of considering what would be and making a just and equitable property order between the parties. It is not the Court's function to keep alive forever matters which the parties themselves do not wish to, or for whatever reason, cannot prosecute. The Court's business, like all business, must be dealt with, with reasonable despatch.

17. I would reiterate that the path I'm taking today is one which I set in place by the associate's letter, at least as long ago as the associate's letter, 13 June 2007.

    ORDER DELIVERED  

18. I will add now a further concern that I have had in the matter merely to record it more than anything else because, according to the record of the Court and the orders I have made, no s.79 final order ever was made and the proceedings have been dismissed. That is now a matter of record and the Court is of course a Court of record. However, I will explain that because at various times throughout the many, many listing dates that I've mentioned, I have expressed doubt as to whether my decision on 15 February, reflected in the orders 29 November 2006, was correct and, arguably, it may be that the original order I made on 21 December 2004 was indeed a final order with the features that I mentioned of it truly machinery provisions. However, that is now academic because what is on the record stays on the record until and if, by some procedure or other, it may be held that it was indeed a s.79 order. However, as I said, that now in practical terms is a completely academic question. At various times, however, I have invited the husband and the wife to consider offering their consent to put an end to proceedings.

19. If, as an alternative thing as it were, if the order made 21 December 2004 should ever be considered by others, indeed, to have been a s.79 order, for the husband and the wife to agree by consent to an order under s.79A of the Act to set it aside s.79A(1)(b) on the basis that in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out, or impracticable for a part of the order to be carried out, the factual circumstances giving rise to the application of that provision are stark and have already been mentioned by me today. However, s.79A can be triggered only on application by a person affected by an order made by a Court under section79 in property proceedings and is not a provision which can be invoked by the Court of its own volition, and plainly so for good reason because it affects what otherwise would stand on the record as final orders.

20. My recollection is that at various dates throughout this year each of the husband and the wife has said that they would consent to such a s.79A order setting aside the order made 21 December 2004, if indeed it should be properly regarded as a final order. However, today neither the wife nor the husband has offered consent and therefore there is no application by either party under s.79A. The matter is thus completely academic but I make the observation for the sake of completeness. I would reiterate that it is observation only. The Court is a Court of record. The record in this matter shows that what purported to be a s.79 order was made. A submissions subsequently was accepted by counsel for the trustee in bankruptcy that it was not indeed a s.79 order. Certain paragraphs of it were thus vacated in recognition that the trial proceedings conducted by me in May 2004 have not, indeed, resulted in a final order leading, thus, to further directions to bring that proceeding to fruition and completion. Directions were made for that. That has not ever been able to be completed for reasons I have put on the record today. The result is that on the record the parties' applications for s.79 property settlement have now been dismissed. The proceedings are finished in the Court today.

21. I appreciate that the conclusion of the parties' marriage was now a very long time ago, their separation having occurred in early to mid 1999 and was dissolved by decree which became absolute on 7 April 2002. The result is by the dismissal of the proceedings that neither party now can bring s.79 property proceedings in the Court without leave being given under s.44 of the Family Law Act to bring proceedings out of time. If either the husband or the wife does that then the history of these proceedings unfortunately will be very relevant to the exercise of the discretion to grant leave to bring proceedings out of time, however, it is not likely that any such application properly will be heard before me and if any such future application is brought then I would leave it to those who administered the Court to decide whether it is proper that such an application be brought before me or not. Having regard to the history of the matter I should place on record that personally I would find it extremely difficult to exercise the discretion to grant leave to the husband or the wife to have leave to institute fresh property proceedings out of time. Having said that, I should place on record without formally disqualifying myself, that if such proceedings were instituted and happened to come before me, I would probably at that stage disqualify myself and recommend to those who administer the Court that such application be dealt with by another Judge.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate 

Date: 12 December 2007