Fazil & Fazil

[2021] FamCA 16

FAMILY COURT OF AUSTRALIA

Fazil & Fazil [2021] FamCA 16

File number(s):	PAC 917 of 2019
Judgment of:	FOSTER J
Date of judgment:	28 January 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – ORDER FOR DISCLOSURE – Where assertion of extent of overseas property interests of the wife – Where husband seeks order to facilitate disclosure of documents relating to same – Where consideration of applicable principles – Where consideration of discretion in rule 13.22 of the Family Law Rules 2004 (Cth) – Where application dismissed.
Legislation:	Family Law Rules 2004 (Cth) rr 13.18, 13.22
Number of paragraphs:	45
Date of last submission/s:	4 December 2020
Date of hearing:	17 November 2020
Place:	Parramatta
Solicitor for the Applicant:	Hammond Nguyen Turnbull
Solicitor for the Respondent:	John & Co Lawyers

ORDERS

PAC 917 of 2019
BETWEEN:	MR FAZIL Applicant
AND:	MS FAZIL Respondent

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	28 JANUARY 2021

THE COURT ORDERS THAT:

1.The husband’s Application in a Case filed 23 October 2020 is dismissed.

2.The question of costs as to the Application in a Case be reserved to final hearing.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fazil & Fazil has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

FOSTER J:

1. In the context of ongoing property proceedings commenced by the applicant wife by Initiating Application filed 27 February 2019, the husband makes application for interlocutory orders pursuant to his Application in a Case filed 23 October 2020.

2. In her Initiating Application the wife somewhat inelegantly seeks a primary order that the parties do all things necessary to distribute the net pool of assets as to 70 per cent to the wife and 30 per cent to the husband.  No doubt that application will require amendment prior to final hearing. 

3. The husband filed a Response on 29 April 2009 to the wife’s Initiating Application.  He sought orders that the net pool of assets be distributed as to 65 per cent to the husband and 35 per cent to the wife and sought various orders in specie in relation to the property and the parties to do all acts and things to give effect to the distribution sought by him. 

4. The proceedings appear to have languished in the Federal Circuit Court of Australia for more than 12 months before proceedings were transferred to this Court presumably by reason of asserted complexity.

5. Upon transfer to this Court, proceedings were listed for directions before a registrar on 9 June 2020. On that date it was noted by the registrar that the husband asserted that the wife had not disclosed all her assets in Country B and both parties were seeking to appoint adversarial experts with respect to the wife’s property interests in Country B.

6. Proceedings were listed for judicial case management on 18 August 2020 and orders and directions were made as follows:

   (1)The proceedings are adjourned for further judicial case management to 11.00 am on Friday, 2 October 2020.

   THE COURT NOTES THAT

   (2)The husband presently asserts that there are additional properties in Country B not disclosed by the wife and in respect of those properties he has obtained title searches.

   (3)Once there is agreement as to properties to be valued in Country B, it is the Court’s expectation that either agreement will be reached as to value and if not there will be agreement as to an appropriate single expert to value such properties for the purposes of the proceedings.

   IT IS FURTHER ORDERED THAT

   (4)The parties have leave to forward to the Court in chambers any proposed consent orders arising from the issues referred to above and, if appropriate, the adjourned date will be vacated.

   (5)The wife’s costs of today are reserved noting that the husband failed to comply with directions of 9 June 2020 to file his Response to the wife’s Application in a Case and any affidavit to be relied upon no later than 30 June 2020 with those documents only being filed during the course of this morning.

7. Subsequently, on 2 October 2020 proceedings were again before the Court for judicial case management and the following orders and directions were made:

   (1)All outstanding Applications in a Case are dismissed with no order as to costs.

   UPON NOTING THAT THE HUSBAND SEEKS AN ORDER THAT THE WIFE SIGN AN AUTHORITY TO FACILITATE AN ENQUIRY MADE BY HIM AS TO THE NATURE, EXTENT AND VALUATION OF THE WIFE’S PROPERTY IN COUNTRY B, IT IS ORDERED

   (2)The husband file and serve his Application in a Case together with any affidavit material to be relied upon in support of the orders sought by him by no later than Friday, 23 October 2020.

   (3)The wife file and serve any Response to the Application in a Case together with any affidavit material to be relied upon by no later than Friday, 13 November 2020.

   (4)The proceedings are adjourned for further judicial case management to 10.30 am on Tuesday, 17 November 2020.

   (5)Due to the ongoing situation with the coronavirus (COVID-19), attendance in person is not required, but you are required to attend by telephone via AAPT telelink at the judicial case management listing before Justice Foster on Tuesday, 17 November 2020 at 10.30 am.

8. As noted above the husband filed his Application in a Case on 23 October 2020 with that application being supported by his affidavit sworn 23 October 2020.

9. The wife filed her Response on 13 November 2020 to the husband’s Application in a Case and her Response was supported by her affidavit sworn 13 November 2020.

10. On 17 November 2020 the Application in a Case was heard on the documents and orders were made for written submissions to be filed by the husband no later than 27 November 2020 and by the wife by no later than 4 December 2020 and that upon completion of submissions, judgment be reserved.

11. In his Application in a Case, the husband sought in summary orders as follows:

    (1)That the time for service be abridged.

    (2)That the Wife shall execute and return to the Husband the Authorisation Form issued by the Ministry of Justice in Country B, for the sole purpose of authorising the Husband or his legal representative to communicate with the relevant Property Registries in Country B to obtain true copies of any title deeds and/or ownership instruments registered in the name of the Wife.

    (3)That the following protocol shall apply:

    3. lThat within 7 days from the date of these Orders, the Husband shall provide to the Wife the Authorisation  Form referred to above.

    3.2That within 14 days thereafter, the Wife shall present the Authorisation Form to the Consulate General of Country B in Sydney, and upon approval, execute the Authorisation Form in the presence of a Council Member.

    3.3That within 7 days thereafter, the Wife shall return the original and duly executed Authorisation Form to the Husband.

    (4)Any other orders the Court deems appropriate or necessary.

    (5)That the Wife pays the Husband's costs for this Application.

12. The wife in her Response, in substance, sought that the husband’s application be dismissed and that the parties’ properties in Country B be removed from the balance sheet and treated as a financial resource only.  Clearly, the latter part of the orders will be a matter for the trial judge.

    The husband’s contention

13. The husband is presently aged almost 62.

14. He asserts that previously in documents filed in these proceedings the wife has disclosed certain properties in her name in Country B as follows:

    (a)C Street, F City (“the C property”); and

    (b)Share in property at D Street, F City (Serial Number …).

15. The husband says that the parties lived in the C property for about five years from the time of marriage in December 1986 until July 1991.  He does not assert that he had any interest in the said property or made any contribution to that property.  He asserts that the property appears to comprise of two lots, one of which a home was constructed with the property situate in, he says, a “most prestigious area in F City”. The lots are identified, he says, with Serial Numbers … and ….

16. He asserts that these lots would have a value in the vicinity of US$3 million-US$4 million.  The husband asserts that the combined area of the two lots comprise about 1.215 hectares as opposed to a total area of only 500 square metres asserted by the wife, who asserts that she is not the owner of ... 

17. Otherwise, the husband asserts that the wife has an interest in other properties left to her and her siblings by her late father, with those properties remaining in the name of her late father and his estate as yet unadministered.

18. The husband has facilitated enquiries through his lawyer in Country B that he says reveals that the wife is the owner of the two lots comprising the C property by reason, in all the circumstances, that improvements erected on the lots traverse the boundaries of the lots.

19. He asserts that he has made enquiries of the Country B’s Consulate in Sydney to be advised that only the owner of the property or an authorised person can obtain information or documents relating to a property in Country B.

20. There appears no issue that the wife is capable of providing such an authority and the husband asserts that enquiries thereafter be a relatively simple process.

21. The husband acknowledges that the wife has repeatedly criticised the political situation in Country B and has implied that there is little law and order in the country.

22. It appears that the husband’s enquiry would be to focus on the ownership of ….  Regrettably, notwithstanding the issue of ownership or otherwise, it appears there is little prospect of obtaining consensus as to a reliable method of valuation of any property owned by the wife or, indeed, by either of the parties in Country B.

    The wife’s contention

23. The wife, for her part, expresses reservations as to the husband’s ability to obtain information from Country B in the circumstances asserted by him.  The wife asserts that the only means of obtaining information as to property is by the property owner’s personal attendance at the appropriate government office or by executing a power of attorney in favour of a representative of the owner.

24. The wife has provided no such power of attorney to the husband.

25. The wife expresses significant reservations as to providing to anyone a power of attorney on her behalf by reason of her experience of persons being able to deal with property in Country B inconsistently with their interest or authority.

26. As to the subject property, the wife says that the C property is her family home in Country B where she resided with her family while she was growing up.  The property was previously owned by her maternal aunt who passed the property on to the wife’s family.  It is her understanding that the property was put in her name shortly after her birth.

27. The wife denies the husband’s assertion that they lived in this property for some years after marriage and says they resided, in fact, in his family property in Country B.  The wife moved back into the C property in about 1990 due to concerns as to her mother’s safety during the Country's unrest.  The husband lived in that property for about eight to nine months during which time the wife’s mother paid for property expenses as the husband, a conscripted soldier, had minimal income.

28. The husband moved to Country G in July 1991 and did not return to live at the C property.  The wife and her first daughter left the C property and relocated to Country G to join the father in September 1991.  Otherwise, the parties have been residing in Australia permanently since the early 1990s.

29. The C property, the wife asserts, is dilapidated and not fit for habitation and provides in her affidavit evidence supporting that assertion.

30. Otherwise, the wife asserts her position that the C property is to the best of her knowledge about 544 square metres of land on which there is constructed a five bedroom home.  The certificate of title she previously exhibited to the Court, she says, confirms that the property is about 544 square metres.

31. The wife expresses significant reservations as to the veracity of information provided by the husband.

32. As to the property …, the wife acknowledges that she owns a 1/6 share in that property.  She asserts the property is used for commercial and residential purposes and rental income is used by her family overseas.  The wife refers to the husband’s property in Country B in H City.  That property being the husband’s family home where she resided for a short period in late 1980.

33. The wife asserts that the husband’s father died in 1984.  She proffers no evidence as to what entitlements may flow from the husband’s father’s death.  Like the husband, the wife asserts no financial contribution to the husband’s family property in Country B.

34. She asserts that the parties’ property interests in Country B be treated as financial resources by reason of the difficulties of obtaining information as to the properties, that neither party asserts any contribution to the other’s property interest in Country B and that it is highly problematic as to whether properties valued for the purposes of the present proceedings.

    Discussion

35. It is trite to say that parties in property proceedings before this Court have an ongoing obligation in relation to disclosure of their financial circumstances to the Court and to the other party: Chapter 13 of the Family Law Rules 2004 (Cth) (“the Rules”). Indeed, there are significant obligations imposed on parties as to disclosure and discovery before the commencement of proceedings, although experience demonstrates that mostly such obligation is ignored.

36. Orders for disclosure may be made under the provisions of rule 13.18 and the provisions of rule 13.22. However, the rules focus on the provision of documents and are subject to the obligation imposed on the moving party to satisfy the Court that the order is necessary for disposing of the case or issue or reducing costs.

37. In relation to the obligation of the moving party, rule 13.22(3) provides:

    (3)      In making an order under subrule (1), the court may consider:

    (a)       whether the disclosure sought is relevant to an issue in dispute;

    (b)the relative importance of the issue to which the document or class of documents relates;

    (c)the likely time, cost and inconvenience involved in disclosing a document or class of documents taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the case; and

    (d)the likely effect on the outcome of the case of disclosing, or not disclosing, the document or class of documents.

38. For the sake of the present application, it can be inferred that the husband seeks documents touching upon the ownership of the C property in the name of the wife.

39. The wife, for the purposes of these proceedings, has already disclosed the nature and extent of her ownership of that property.

40. In the context of these proceedings it appears that the disclosure might be relevant to the issue of the valuation of the wife’s property interests in Country B.  Interests in respect of which were required well before cohabitation and in respect of which the husband asserts no contribution.

41. The husband, for his part, it is asserted has property interests to some extent in a family home in H City to which the wife asserts she has made no contribution.

42. In circumstances where there are significant assets here in Australia for division between the parties, including the jointly owned matrimonial home, funds at bank and superannuation entitlements, then the ownership or otherwise of the parties of an interest in property in Country B could only possibly have any relevance in terms of their respective financial resources and have, if any, only a marginal relevance to the adjustment of property here in Australia.

43. There would be unnecessary time, cost and inconvenience endeavouring to establish with some finality ownership and value of the parties’ overseas property interests that would unnecessarily attract present proceedings that have already been ongoing for almost two years.

44. In all of the circumstances the husband’s Application in a Case filed 23 October 2020 is dismissed.

45. Otherwise, it is ordered that the question of costs as to the Application in a Case be reserved to final hearing.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster.

Associate:       

Dated:       28 January 2021