EMAMI & EMAMI

[2019] FamCA 962

FAMILY COURT OF AUSTRALIA

EMAMI & EMAMI [2019] FamCA 962

FAMILY LAW – PROPERTY – Institution of proceedings – Application by the husband for leave pursuant to s 44 of the Family Law Act 1975 (Cth) to institute property settlement proceedings against the wife “out of time” – Leave not granted – no evidence filed in accordance with Court orders

FAMILY LAW – COSTS – Application by the wife for an order for costs in her favour – Orders made that the husband pay her costs of the proceedings as agreed or assessed

Family Law Act 1975 (Cth) s 44, 117
Family Law Rules 2004 (Cth) r 10.12(d)

APPLICANT: Mr Emami

RESPONDENT: Ms Emami

FILE NUMBER: SYC 6899 of 2013

DATE DELIVERED: 2 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 2 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Colin Daley Quinn

Orders

1. The Amended Initiating Application filed by the Applicant Husband on 30 June 2017 be dismissed.

2. The Applicant Husband pay the costs of the Respondent Wife, as agreed or assessed.

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 Emami & Emami 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 SYDNEY

FILE NUMBER: SYC 6899 of 2013

Mr Emami

Applicant

And

Ms Emami

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

A. These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. These are proceedings for property adjustment between the applicant and the respondent. The parties were married in 1975. As I understand the evidence, they have four children, all of whom are now adults.  During the period of the marriage, a number of properties were purchased and sold. The parties eventually divorced by order made in January 2014, and which took effect later in 2014.

2. The applicant husband commenced divorce proceedings in November 2013, and filed an Application for Final Orders on 30 September 2014 but discontinued the proceedings in 2015. He then filed an Initiating Application followed by an Amended Initiating Application in June 2017. In that application, the husband sought leave to proceed pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) with respect to spousal maintenance and s 79 property orders. By way of final orders, he sought a payment to him of $650,000 or $675 a week on an ongoing basis for what appears to be spousal maintenance.

3. The matter was placed in my docket in early 2019. On 18 April 2019, the applicant was represented by a solicitor advocate and the respondent by Mr Johnston of counsel when the matter was mentioned before me for a First Day Less Adversarial Hearing. On that date, orders were made standing the proceedings over to call-over on 21 June 2019. The 21 June 2019 date was administratively vacated on 5 June 2019 with call-over listed for 13 August 2019, when final hearing dates were set down. Orders were made for the parties to take the necessary steps to identify and agree upon a single expert, to carry out title searches in Country B and for the exchange of further reasonable requests for disclosure. It was indicated to me on 18 April 2019 that the likely hearing time would be three days. 

4. When the matter came before me on 13 August 2019, the applicant was again represented by the same solicitor and the respondent by the same counsel. On 13 August, detailed directions were made for preparation for final hearing, including a consolidated affidavit for each party, a tender bundle, case outline, valuation and numerous other ancillary orders. 

5. The matter came before me on 18 November 2019 when the applicant was represented by counsel and the respondent by solicitor. On that occasion, the applicant was ordered to file and serve a consolidated affidavit by no later than close of registry filing on 22 November 2019, noting that the matter had been listed for final hearing on 2 December 2019 with an estimate of four days. The matter came before me again on 22 November 2019 for further mention and compliance check. On that occasion the applicant appeared in person and sought an extension of time for filing his consolidated affidavit. The Court acceded to this application and the time was extended up to and including close of registry filing on 26 November 2019.

6. When the matter came before me on 2 December 2019, there had been no compliance by the applicant for filing of any trial affidavit, case outline or other step necessary for preparation for final hearing. I note here that, by contrast, the respondent had provided a case outline, a proposed balance sheet, a chronology and a trial plan. 

7. On 2 December 2019, a solicitor sought leave to appear in the capacity as a McKenzie friend for the applicant and sought to raise an issue about a potential conflict of interest in relation to the solicitors acting for the respondent. However, the solicitor was not on the record for the applicant nor had he been specifically retained, according to what I was told from the bar table.  I allowed time for the applicant’s McKenzie friend to obtain more instructions but when the matter was called again at 11:00 am on 2 December 2019, the McKenzie friend sought leave to withdraw.

8. The respondent’s counsel then made an oral application for summary dismissal of the application on the basis there was no evidence from the applicant which could support a conclusion that leave to proceed should be granted pursuant to s 44 of the Act.

9. I carefully asked the applicant whether he understood what the application was and whether there was any evidence he wished to point to which would address the requirements of s 44. He told me that he had been unable to obtain affidavits because he had been required to pay his solicitors money which he did not have. He told me that he was receiving a pension. I note that the applicant filed an affidavit sworn on 14 March 2017 earlier in the proceedings. That affidavit indicates that solicitors then acting for him had turned their mind to the preparation of some evidence which, presumably, was proffered in support of his application. However, it does not in terms provide material which could satisfy the requirements of s 44(3) or s 44(6) of the Act.

10. In particular, although the affidavit, which is now over two years out of date, deposes to the applicant receiving a Centrelink payment of $890 per fortnight and makes assertions about the assets or income of the respondent, it makes no attempt, even in broadbrush fashion, to identify the assets and liabilities of the parties at that point in time. However, the evidence provided by the respondent is that as at 2 December 2019 there is a deficit of assets over liabilities of approximately $400,000 and there is no evidence from the applicant which I could even take at its highest to put any of that material in issue.

11. Consequently, I am driven to conclude that it is not possible on the material before me to form a view that the applicant has satisfied the requirements of s.44, by evidence which I would have taken at its highest on a summary dismissal application, if it had been filed, noting that the respondent makes her application for summary dismissal pursuant to Rule 10.12(d), that is, the applicant has no prospect of success.

12. I note that the applicant, through his Mackenzie friend, and, as I understood his own submissions from the bar table, sought an adjournment to provide further evidence. The applicant has already been afforded considerable procedural generosity and no affidavit has been forthcoming. I must take account of the fact that there are hundreds of cases awaiting final determination in this Court and that the applicant was allocated four days of judicial time for the proper hearing of his case on a final basis. However, he failed to comply with directions for preparation, meaning that an adjournment would effectively waste four days of Court time which could have been more usefully allocated to other litigants who were prepared to take the necessary steps to put their case in order to be properly determined.

13. I am not satisfied there is any proper basis for the matter to be adjourned and in light of the case management matters I have just adverted to and the age of the proceedings I am satisfied it should be dealt with in the allocated hearing time. I am also satisfied that it can be dealt with appropriately by a summary dismissal application in the absence of the applicant’s compliance with the directions and failure to provide a consolidated affidavit which could, on any basis, support his application.

14. Accordingly, I order that the Amended Initiating Application filed on 30 June 2017 be dismissed.

Costs

1. The respondent makes an application for an order for costs in her favour for her costs to be paid by the applicant as assessed on the basis she may not proceed to assessment. 

2. In this Court, the starting point with respect to costs in any proceedings is set out in s 117(1) of the Act. The authorities in the Full Court make clear that the starting point can be altered in circumstances where the Court is satisfied it is justified in making an order for costs in favour of one party or the other. The respondent points to subparagraphs (a), (c), (e) and (f) of section 117(2A) in support of her application for costs.

3. On the material before me, it is clear that the applicant has been wholly unsuccessful. I am also satisfied that his conduct in relation to the proceedings has been unsatisfactory in preparation for final hearing and disclosure. One particular example is that by letter dated 3 May 2019, which became Exhibit “A” on the application for costs, the solicitors then acting for the applicant made an admission on his behalf in writing that he was the owner of a ground floor shop in Country B which was inherited from his father. Before me, the applicant was clear that according to his assertion that property was sold six years ago. If that was true, it is difficult to understand an admission was made it was still owned by him in May of this year.

4. I am also satisfied on the basis of the letter contained in Exhibit “B” that offers were made to resolve the proceedings on the basis that small payments of up to $25,000 or, perhaps, $50,000 at a conciliation conference were made to the applicant by the respondent. None of those offers were accepted. 

5. According to Exhibit “C”, which is material tendered by the respondent, being a letter dated 2 December 2019 from her solicitors, she has spent a total of $191,045 in these proceedings. All those factors would militate in favour of an order for costs against the applicant.

6. I come then to the question of the financial circumstances of each of the parties.  Both assert they are impecunious. It is not disputed that the applicant is reliant upon a pension as his only source of income. He is elderly and the question of his financial resources is very difficult to determine. On material placed before me, I am not satisfied that it is entirely clear he has no assets in Country B. The respondent for her part asserts she is impecunious because there is a deficit of assets over liabilities although her own evidence shows she has been able to receive some financial support from friends and family from time to time.

7. In the circumstances, taking account of all the matters which I have adverted to, I am satisfied that it is appropriate to make a costs order, especially in circumstances where significant Court time has been wasted by the approach of the applicant to the proceedings.  Accordingly, I make an order that the applicant pay the costs of the respondent of the proceedings as agreed or assessed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 2 December 2019.

Associate: 

Date:  02/12/2019