Erwin & Loupe (No 2)
[2023] FedCFamC1F 826
•25 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Erwin & Loupe (No 2) [2023] FedCFamC1F 826
File number(s): MLC 14204 of 2022 Judgment of: MCNAB J Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – PROPERTY –application for an adjournment on the basis of incapacity – where the application was not supported by an affidavit – where the medical certificate produced failed to provide any detail to support the conclusion that the respondent lacked capacity to attend court – where the correspondence produced by the respondent did not support a finding that he could not afford legal representation – application refused. Legislation: Family Law Act (1975) (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Myron & Milson [2020] FamCACF 151 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 25 August 2023 Place: Melbourne Counsel for the Applicant: Ms Kildea Solicitor for the Applicant: Cahill Family Lawyers Counsel for the Respondent No appearance by counsel or the respondent ORDERS
MLC 14204 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ERWIN
Applicant
AND: MR LOUPE
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
25 AUGUST 2023
THE COURT ORDERS THAT:
1.The Respondent’s request for an adjournment of the proceeding this day is refused.
2.The matter proceed on an undefended basis.
3.The joinder application for Ms O to be joined as a proposed Second Respondent filed in the Respondent’s response to an application in a proceeding of 14 July 2023 be dismissed.
4.The Respondent pay the costs of the proposed second respondent fixed in the sum of $2175.
5.Pursuant to s117(2) of the Family Law Act 1975 the Respondent pay to the Applicant, and until further Order the sum of $200,000 not later than fourteen (14) days from the date of this Order.
6.In the event of the failure to pay the Applicant the sum of $200,000, the parties shall to all acts and things to sign all necessary documents to list the property situate at FF Street, Town HH in the State of Victoria on the market for sale (“the FF Street sale”) (“the sale documents”).
7.For the purpose of the FF Street sale:
(a)the Applicant shall be at liberty to select the selling agent and act upon such terms and conditions as the selling agent appointed by the Applicant recommends;
(b)the Applicant shall adopt all reasonable recommendations in relation to presentation of the FF Street property, as recommended by the selling agent;
(c)the Applicant be appointed as Attorney for the Respondent to sign all necessary sale documents; and
(d)the Applicant will accept all reasonable recommendations made by the selling agent, including the acceptance of reasonable offers.
8.The sale proceeds of the FF Street property be disbursed in the following manner and priority:
(a)firstly, to pay all costs, commissions associated with the sale and conveyancing costs;
(b)secondly, to discharge the mortgage numbered … with Westpac Banking Corporation secured against the FF Street property;
(c)thirdly, to discharge any remaining funds due and owing to JJ Finance;
(d)fourthly, to discharge any remaining funds due and owing to Z Pty Ltd;
(e)fifthly, to discharge any remaining funds due and owing to V Finance;
(f)sixthly, to pay to the Applicant the sum of $200,000, or such sum as may be outstanding, in accordance with these Orders; and
(g)seventhly, the balance to be held in trust on behalf of the parties by Cahill Family Lawyers, or any solicitors acting on behalf of the Applicant, pending Final Order or the parties’ written agreement.
9.The Respondent, in his personal capacity or his capacity as a director, shareholder or through any entity in which he has an interest or by way of an agent acting on his behalf, be restrained by injunction from lodging a caveat against the FF Street property.
10.Within 7 days the Applicant do all things necessary to lease the premises at KK Street, Suburb LL in the State of Victoria, using Mr MM of NN Real Estate at a minimum rental of $1,000 per week, and that any rental income received, net of costs, be paid to the Applicant on account of spousal maintenance pursuant to s90SG of the Family Law Act 1975 and for the purposes of that lease:
(a)The Applicant be appointed as Attorney for the Respondent to sign all necessary lease documents and the lease generally.
Financial Disclosure
11.Within twenty-one (21) days of the date of these Orders, the Respondent provide the following documents to the Applicant’s solicitor, by way of financial disclosure:
(a)documentary evidence of the Respondent’s earnings, including income that is paid or assigned to another party, personal legal entity on his behalf, including his personal taxation returns, PAYG assessments and payment summaries for the financial years ended 30 June 2018 to the present date;
(b)all documents relating to any anticipated taxation refund/s due to be received by the Respondent;
(c)all bank records, including bank statements, credit card statements, term deposit statements, loan statements and mortgage statements, together with digital currency account statements for the period 1 January 2022 to present, for all accounts in which the Respondent has an interest, including any accounts held jointly with any other person;
(d)statements evidencing any shareholdings in which the Respondent has an interest, including the type and number of shares held; and (e)
(e)all documents in relation to the purchase of the property at UU Street, Town VV, including, but not limited to:
(i)contract of Sale;
(ii)application for finance;
(iii)details of deposit paid; and
(iv)source of deposit paid.
(f) all documents in relation to the purchases of the properties at 1 OO Street & 2 OO Street, Suburb L, including but not limited to:
(i)contracts of Sale;
(ii)application for finance;
(iii) details of deposits paid; and
(iv)source of deposits paid.
(g)in relation to the following companies:
Registered pre-separation
·PP1 Pty Ltd; and
·QQ1 Pty Ltd.
Registered post-separation
·RR2 Pty Ltd;
·PP2 Pty Ltd;
·PP6 Pty Ltd;
·SS Pty Ltd; and
·TT1 Pty Ltd.
the Respondent provide the following documents:
(i)a copy of the Company Constitution;
(ii)any tax returns;
(iii)details of current assets or liabilities;
(iv)shareholder agreements; and
(v)all bank records, including bank statements, credit card statements and loan statements since inception.
(h)In relation to the following businesses:
Registered post-separation
·RR3 Pty Ltd;
·RR4 Pty Ltd;
·RR5 Pty Ltd;
·RR1 Pty Ltd;
·PP4 Pty Ltd;
·PP5 Pty Ltd;
·PP6 Pty Ltd;
·PP7 Pty Ltd;
·PP8 Pty Ltd;
·QQ2 Pty Ltd;
·QQ3 Pty Ltd
·WW Pty Ltd;
·QQ4 Pty Ltd;
·TT2 Pty Ltd;
·TT3 Pty Ltd; and
·WW Pty Ltd.
the Respondent provide the following documents:
(i)a copy of any Partnership Agreement, or alternatively any Company Constitution;
(ii)details of current assets or liabilities; and
(iii) all bank records, including bank statements, credit card statements and loan statements since inception.
(i)Receipts and particulars for the return of the deposit of $200,000 from the cancelled purchase of the contract for the property at W Street, City X.
(j)appraisals and current photographs for all vehicles and vessels in which the Respondent has an interest, including but not limited to:
(i)Motor Vehicle 1, registration …; and
(ii)the two (2) vessels.
(k)copies of the residential tenancy agreement for the property occupied by the Respondent situate at XX Street, Town VV in the State of New South Wales;
(l)copies of any residential or commercial lease agreements for all of the Respondent’s investment properties;
(m) all documents passing between the Respondent and Ms YY of ZZ Financial Services, regarding her appointment to prepare a forensic report; and
(n)details and documents relating to all other property and/or financial resources in which the Respondent has a direct or indirect interest (including any item of significant value held directly or indirectly by the Respondent or on his behalf with a vested or contingent) including appraisals and/or value of such property, where appropriate.
12.In the event the Respondent fails to comply with paragraph 11 herein the Applicant have leave to apply to proceed undefended.
Valuations
13.Within twenty-one (21) days of the date of these Orders, the parties do all things and sign all necessary documents to jointly obtain valuations of the following real properties:
(a)BA Street, Suburb BC;
(b)KK Street, Suburb LL;
(c)1 BD Street, Suburb BC;
(d)2 BD Street, Suburb BC;
(e)FF Street, Town HH, if not sold;
(f)BF Street, Suburb BE;
(g)BG Street, Town HH;
(h)BJ Street, Suburb BH;
(i)BK Street, Suburb BH;
(j)BL Street, Suburb BH;
(k)BM Street, Suburb BH; and
(l)BN Street, Suburb BH.
14.BO Valuers be appointed as single expert to value the properties, with the Respondent to pay the full cost of the valuation fees at first instance.
15.The Respondent’s response to an application in a proceeding filed 14 July 2023 be struck out.
16.The applicant’s costs of an incidental to this application be reserved.
AND THE COURT NOTES THAT:
A.IF YOU REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
B.DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
C.YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
D.The matter remains listed before the Hon. Justice McNab for final hearing on 11 December 2023 at 10.00am for 3 days in court in Melbourne.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.
F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Erwin & Loupe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPOREMcNab J:
INTRODUCTION
This matter was originally listed for Interim Hearing on 18 August 2023 and that hearing was transferred to this day, 25 August 2023. The respondent was given notice of the hearing and given notice that he could join the hearing via Microsoft Teams on 23 August 2023 when a Teams link was sent to him.
APPLICATION FOR ADJOURNMENT
By correspondence from the respondent, he has indicated that he says that he is unfit to attend court until after 30 August 2023. He initially provided a medical certificate dated 21 August 2023 which stated:
This is to certify that the respondent is suffering from a medical condition and will be unfit to attend his court obligations for the period of 21 August 2023 to 30 August 2023.
The certificate contains no detail as to the medical condition which was said to make the respondent unfit to attend the hearing.
By correspondence addressed to my associate dated 24 August 2023 the respondent has asserted that he has contracted COVID and by correspondence advised that he:
attended a doctor again today via telehealth as I tested positive for Covid and my symptoms are much worse today. I was not able to see a doctor in person as I had tested positive for Covid they would not let me so I had to see a telehealth doctor.
That medical certificate accompanying that correspondence provides that the respondent:
Is suffering from a medical condition and is unable to attend court in person or via video link until 31/8/2023
Notwithstanding the medical conditions that the applicant is said to be suffering, he has been able to correspond to the court and to the solicitor for the applicant by way of a plethora of communications whilst apparently subject to the medical conditions.
In Myron & Milson [2020] FamCACF 151, Ainslie-Wallace, Ryan & Watts JJ, at [41], the court stated the following in relation to medical certificates used for the purpose of court proceedings and the detail required:
… The mere assertion of unfitness for work or inability to attend court, even by a medical practitioner, is unlikely to carry weight. It is expected that some explanation is given concerning the person’s medical condition and, unless the consequences of the condition are obvious, some explanation as to why the person is unable to attend court is necessary. This can be done briefly and it is not suggested that in the circumstances of this case, busy medical practitioners were expected to provide lengthy medical reports. However, the paucity of information provided in the medical certificates as to the underlying facts and the basis upon which the conclusion as to incapacity was reached, more than justifies the primary judge’s decision to give them little weight.
I am not satisfied that the evidence that has been put before the court by the respondent is sufficient to warrant the grant of an adjournment. First, no evidence has been provided by affidavit, secondly there is no detail in the medical certificates that have been provided.
As to an assertion that the respondent has been unable to obtain legal representation, he has stated in correspondence to the applicant, which the court has been copied into, that he has signed a contract to purchase a property in Town VV with the purchase price of over $4,000,000 and he also talks of his capacity to access finance albeit on a limited basis because he says he is hampered in his efforts because of caveats placed on various properties. However, given that he was able to enter into a contract for the purchase of expensive real estate, I am not satisfied that the respondent lacks the capacity to engage legal representation who might have appeared for him today.
CONCLUSION
For these reasons, the respondent’s application for an adjournment is refused.
JOINDER APPLICATION
The respondent also filed a Response to an Application in a Proceeding on 14 July 2023 seeking to join Ms O to the proceedings in relation to property situated at BP Street, Suburb BQ, Victoria and BR Street, Town BS, Victoria. The joinder application of the respondent was incomplete with no adequate basis being set out to justify the joinder and the application was dismissed with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 27 September 2023
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