Field and Maling and Anor

[2007] FamCA 1408

FAMILY COURT OF AUSTRALIA

FIELD & MALING AND ANOR [2007] FamCA 1408

FAMILY LAW – EVIDENCE – Foreign Country – Malaysia – Electronic communication – Family Law Rules 16.08, 16.09

Family Law Act 1975 (Cth)

APPLICANT: Ms Field

1^ST RESPONDENT: Mr Maling

2ND RESPONDENT:	Ms E Maling
FILE NUMBER:	MLF	2223	of		2005

DATE DELIVERED: 23 November 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 23 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John SC & Mr Strum

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE 1^ST RESPONDENT: No Appearance

COUNCEL FOR THE 2^ND RESPONDENT: Mr Dickson

ORDERS

1. THAT until further order, the firstnamed respondent husband (“the husband”), by himself, his servants and agents, be restrained from withdrawing, drawing upon, transferring, gifting, assigning or howsoever otherwise dealing (or attempting so to do) with any and all funds standing to his credit in ANZ Bank Access account no. …7.

2. THAT until further order, pursuant to Section 90MU(1) of the Family Law Act1975 (Cth):

   the Trustees of:

   (i)Health Super Fund; and

   (ii)X Retirement Security Plan,

   not make any splittable payments in respect of the husband’s interest in each of the aforesaid superannuation funds without the leave of the Court; and

   (b)the said Trustees notify the Court, within fourteen (14) days of the next occasion when a splittable payment becomes payable in respect of the husband’s interest in each of the aforesaid superannuation funds.

3. THAT until further order, the husband, by himself, his employees, servants and agents be restrained from withdrawing, receiving or howsoever otherwise dealing (or attempting so to do) with his interest in each of:

   (i)Health Super Fund; and

   (ii)X Retirement Security Plan.

4. THAT the husband pay the wife’s costs of and incidental to the application and the solicitors attendance at Court fixed in the sum of $700, such sum to be paid within sixty (60) days of the date hereof.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

6. THAT the solicitors for the wife forthwith serve a sealed copy of this order and the extempore reasons for judgment upon the husband at both his residential and work address in Malaysia.

7. THAT the solicitors for the wife forthwith serve a sealed copy of this order upon the Trustees of each of the superannuation funds identified in Order 2 hereof.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2223 of 2005

MS FIELD

Applicant

And

MR MALING

1^st Respondent

And

MS E MALING
2^nd Respondent

REASONS FOR JUDGMENT

1. The matter of Field & Maling is before me for mention prior to the commencement of the three-day defended hearing that is listed for next Monday. Mr St John, SC, and Mr Strum appear for the wife. Mr Dickson appears as counsel for the second respondent, the sister of the husband. There is no appearance by or on behalf of the husband and that fact is explained by previous orders made in this court, which I have read but which are unnecessary to detail for the purposes of this extempore judgment.

2. What is before the court is an amended application for final orders of 14 September 2007 filed by the wife.  The central issue is the identification of assets that properly form the pool of assets as between the husband and wife.  At the centre of that identification process is the ownership of a property, a unit at S. Currently that unit is registered in the name of the sister of the husband.  There is before the court an application pursuant to 106B of the Family Court Act to set aside the purported transfer by the husband to the sister of that property. 

3. Otherwise, and in the alternative, there are various other applications sought pursuant to section 90AE(2) of the Act or otherwise a declaration pursuant to section 78 of the Act or within the accrued jurisdiction of the court seeking to deal with those issues.  I have over the course of the mention this morning, and at least in the first hour thereof, understood that the primary application in support of the section 79 hearing is a determination of whether that transfer from husband to sister of that real property should or should not be set aside. 

4. The evidence filed by the second respondent's sister consists of her affidavit of 20 August 2007 and her further affidavit of 15 August 2007, and additionally, an affidavit of a Ms K, who is the secretary of the company the ownership of whose shares is a matter in issue in the proceedings. Of more significance, however, is that the additional affidavit to be relied upon by the sister is an affidavit of her mother filed 20 August 2007.  I have read that affidavit.  It was sworn before the second secretary and consul of the Australian High Commission in Kuala Lumpur in Malaysia on 15 August of this year. It is apparent from the affidavit that the mother of the second respondent is fluent in the English language and does not need an interpreter. 

5. The issue that has arisen and that has been the subject of lengthy submissions is the manner of the giving of evidence by that witness, be it by video-link transmission on Monday or, in the alternative, whether she can and should be physically present in Melbourne for the purposes of the giving of evidence.  The solicitors for the second respondent have somewhat belatedly, and certainly out of time, submitted a request and not in proper form which is intended to facilitate the video-link transmission.  It is supported by the affidavit of the solicitor, Mr Robinson, which I have read.  The formal request is that the second respondent's mother gives evidence by electronic communication on Tuesday of next week. 

6. Annexed to the affidavit are medical reports dated 28 July 2007 and 12 November 2007.  I have read both of those reports from Dr B, who is a medical specialist practising in Malaysia and, coincidentally, as Mr St John has raised, in the same building that the husband operates his specialist practice.  The first of those medical reports indicated for reasons of recent surgery in July this year the witness was unable to travel.  The second and updated report includes references to ongoing complications and treatment and concludes with the following paragraph:

   “In light of the multiple problems and the need for close and constant monitoring it would be extremely unwise for Mrs [Maling] to travel for any period in the foreseeable future as it places her health at serious risk.  As such I deem her unfit to travel”.

7. The specialist medical practitioner was unavailable for cross-examination in the purposes of this mention and Mr St John highlighted a number of concerns with the content and detail of those medical reports which are now cited together for the first time.

8. I return to the content of the affidavit of Mr Robinson.  It is clear that the relevant Family Law Rules, Rule 16.08 and 16.09, have not been properly complied with.  What Mr Robinson has put in place is a procedure whereby a local solicitor has organised a video-link from his offices, located in Malaysia, to occur on Tuesday afternoon to Melbourne.  That was done without any ongoing cooperation from the wife's solicitors who wholly oppose the video-link establishment and evidence being given in that regard.

9. First, I observe that the application is out of time and not in compliance with the Rules, and that is acknowledged and an appropriate apology is provided to the court in paragraph 16 of that affidavit.  Whilst there are clear breaches of the Rules in relation to the permission to be given for evidence by electronic communication in an orderly manner it is more to Rule 16.09 that I turn because the evidence is to be given from a foreign country.  Rule 16.09 is mandatory in that it requires that the court must be satisfied of certain issues, as identified in subparagraphs (a) to (f) inclusive of that Rule.  The attitude of the foreign country, Malaysia, has not been established.  There is no knowledge whether permission is needed to adduce evidence from a witness in that country.  The permission has not been sought. 

10. There are other particular issues that would arise of and related to the administration of the oath or the form of the oath, or as to the arrangements within the solicitor's office for the structure of the giving of evidence, leaving to one side the success of the electronic transmission or how documents to be cross-examined upon could or may be made available to the witness with some regularity.  Mr Dickson, on behalf of the sister, has, on instructions, bluntly advised the court that the witness, the mother, will not and cannot be in Melbourne on Monday or Tuesday of next week.  Those instructions are largely based upon, presumably, his instructions from his client or through his solicitor.

11. I regard the obligation on the court as mandatory.  Permission is needed from the Malaysian government and there must be appropriate protocols between governments and an understanding that that courtesy would be extended from one government to another, and I would not lightly dispense with that mandatory requirement.  In any event, it is not just (b) and (c) of that rule but the whole of the rule has been ignored, probably unread, and it must have been wholly satisfied for me to have been persuaded to facilitate the giving of such overseas evidence by electronic means.

12. Mr St John's instructions were to forcefully oppose the giving of evidence by any electronic means, and leaving aside the obvious issues of that Rule there were a number of practical issues highlighted in his submission which included the facility to cross-examine off documents.  I have an assurance from Mr St John that there are documents not yet disclosed that he will cross‑examine the mother upon, and that could be expected in the presentation of his case and that opportunity should be afforded to him and to the court to receive such evidence.

13. In any event, there is the further issue of the opportunity of the court to hear directly from a witness, to observe the demeanour and presentation of a witness where matters are so heatedly in dispute and where the evidence, answers and credit of a witness may likely go to the core of findings.  The outcome of the submission of Mr St John would be to dismiss the application for evidence to be given by electronic means but otherwise to leave the defended matter in the list for hearing on Monday on the basis that there would then be an election to the witness to fly to Australia and present herself for cross-examination.

14. I propose to be realistic, given the instructions of Mr Dickson as conveyed to the court.  I do not want to have the matter further prepared and all counsel at court in the hope that this witness will board a plane, leave her health issues behind and fly here for the commencement of the case on Monday. 

15. One of the matters that Mr St John stressed was the financial circumstances of the wife.  She lives in Perth, is supported by family, has travelled, presumably at her cost, to Melbourne to give instructions and prepare for the hearing next week.  She is seated in court at the moment, and there is no reason why I would not accept Mr St John's statement to the court that finances are a critical concern of hers and of course she wants this case listed, heard and concluded as soon as practicable.  I must, however, balance the necessity to have a fair and just hearing, and to afford justice by way of an opportunity to be heard to both parties and their primary witnesses. 

16. If the witness to be called were "a mere supporter" I would likely have a different attitude.  Given that her evidence is fundamental, and Mr St John urges upon me that it is central to the case, then I would not simply exclude her from giving evidence in her particular health and resident circumstances. I understand, and counsel for both parties now clearly understand, that the dismissal of the request for electronic communication will mean that this matter will not be listed on Monday.

17. I had, in any event, echoed a real concern that I have only three days and that this matter and the legal issues surrounding the hearing of this case and the application under section 106B may have taken more than three days.  I was assured by both counsel that the matter would have concluded within the three day period and that there would have been an agreed but updated of the S unit. 

18. These extempore reasons for judgment are accordingly primarily directed to the application to adduce electronic evidence from Malaysia, and for the reasons given I reject that application and it is refused.  The reality of that is that this matter needs to be heard and I will take to the coordinating judge and listing Registrar the request that it be listed as soon as is practicable on the basis of what counsel have assured me is a three day hearing, with the requirement for the second respondent's mother to be present in Australia to give evidence unless otherwise ordered by a court. 

19. I leave slightly ajar the opportunity for a properly prepared application in accordance with all of the Rules to be hereafter filed, but it does seem to me the necessity to properly examine this witness and have documents and have her response to documents are such that there does need to be the physical presence of the witness in Melbourne.  That should be clearly understood as the way I would likely determine any other application, which if brought would be at the financial risk of the second respondent.

20. Accordingly, the request is denied.  There is no formal interim application to dismiss.  The issue that then arises, leaving aside from any discretionary costs application that may now be made, is the adjournment of the matter from Monday, and I propose to take the matter out of my list for Monday morning.  I am comforted by the fact that there at least ten reserve cases next week and my time will not be wasted.  This matter will need to be re-listed as soon as is reasonably practicable.

21. I will have these extempore reasons transcribed, placed upon the court file and made available to all parties.  I will hear any applications now that arise from my refusal to allow electronic communicated evidence to be given in the proceedings.

DISCUSSION

COSTS

1. I have previously given reasons and made orders on the substantive interim issues and case management issues before the court in this matter.  There now arises issues of cost as a result of the orders that I have pronounced.  Mr St John has produced a schedule of costs claiming $21,064 for the listing of the matter this morning and associated preparation, instruction and other costs of his client.  Some parts of the handwritten schedule of costs have not been put in issue by Mr Dickson, appearing for the second respondent. 

2. I propose to allow the costs of instruction of the principal solicitor at $400 per week and the employee solicitor at $520 for her two hours in court.  I also intend specifically to allow the wife's costs of travel to and from Perth and the amended and early return airfare home and three nights accommodation at $240, and the reality of taxis to and from the airport.  Thus each of those air costs of $1099 and taxi and accommodation of $820 all up will be allowed.  The affidavit costs, including perusal and all matters associated with Mr M’s affidavit I will allow at $500.

3. Before returning to the more contentious costs issue, and for the purposes of these extempore reasons I identify section 117 of the Family Law Act as the costs section and the discretionary nature of costs where the court may make an award when it is of the opinion that there are circumstances in so doing so long as they are just in all of the circumstances to depart from the fundamental requirement of parties paying their own costs. The circumstances of the costs order are particularly identified in subparagraph 2A and the matters to which the court must have regard are identified. In the context of this case, from what I have read and on the submissions from counsel, subparagraph (a) and (c) are of relevance as is the fact that proceedings were necessitated by the failure of a party to comply with a previous order. I will not restate the reasons, but the request for electronic delivery of evidence should have been formulated long ago and in a manner consistent with Rules 16.08 and 16.09.

4. The matter primarily in dispute is the contentious issue of whether costs should be awarded on a party-party or on an indemnity basis, and what is the quantum basis for costs, and whether they should be allowed not just for today but for Monday, which would have been the first day listed for hearing. Costs are discretionary, and on the issue of counsel's fees I am aware that there is no preparation charge.  I propose to allow costs for today for both senior counsel and junior counsel in the sum with which they will mark their brief, that is $6000 and $2750 respectively.  I propose to allow no costs for Monday.  It is still prior to 1.00 pm.  The matter will not be listed on Monday.  I understand that counsel were briefed but as is the busy nature of practice at the bar they will simply have to do other work, predominantly advices, paperwork or that which they may be briefed this afternoon.  I could not, on the basis of what is just, make an order for Monday's costs. 

5. I did hear an issue raised by Mr Dickson that today was appropriate for junior counsel only but I reject that submission.  There was a substantive argument to be made, as could have been anticipated by Mr St John, and that was heard and the subject of an extempore judgment, and I would accept that the wife required her legal team for that argument in court.

6. I have not otherwise had the benefit, nor have I sought, more detailed submissions on the nature of indemnity costs or on party-party costs.  It is just to ward full indemnity costs for today only.  What I intend to do is to afford a just outcome to the parties in a discretionary judgment and to fix a sum to be paid by or on behalf of the second respondent.  Insofar as Mr St John has touched upon issues of who should pay the costs ordered I leave that exclusively to the legal practitioners for the second respondent and that individual.  The quantum of costs allowed $12,089.  They are to be paid within 30 days.

DISCUSSION

INJUNCTIONS - SUPERANNUATION

1. The matter of Field & Maling continues before me, this time with Mr Strum of counsel appearing for the wife and there being no appearance by or on behalf of the husband. I have excused the second respondent, the sister of the husband, and Mr Dickson from these proceedings though it is known that there are now various injunctive orders to be sought as against the husband.  The husband is not at court.  He now plays no part in the proceedings and is a permanent resident of Malaysia. 

2. There are certain assets or property of the husband said to be remaining within the Commonwealth of Australia, primarily his superannuation interest or moneys in an ANZ bank account.  In the circumstances of this case and as these are interim orders I intend to restrain the husband from having access to such moneys or otherwise restrain the trustees of each of the superannuation funds, Health Super and X, from making any splittable payment or causing or facilitating any moneys to be paid to or on behalf of  the husband.  I conclude that these orders are necessary to preserve and protect assets pending a final property determination.

3. I am satisfied that each of the trustees of the superannuation funds have been afforded procedural fairness by way of notice and in respect of that requirement the letter of 12 October 2007 and the response thereto of 31 October 2007 from Health Super may be marked as exhibit 1 and retained on the court file.  Otherwise the further letter of 12 October 2007 to X, in respect of which a reply is yet to be received, can be marked as exhibit 2 and retained upon the file.

1. Additionally I have correspondence from the wife's solicitor seeking to serve the Form 2 application pursuant to which these orders were sought, and the affidavit of the wife.  There is no acknowledgment of service or response to these letters but I am satisfied that the husband knew or should have known of the applications, if indeed he has any interest therein is another matter.  I would be confident that his sister or through her legal practitioners have advised the family of these continuing restraining orders.

2. For completeness I will have each of the letters supporting the service of documents on the husband marked as exhibit “3” and be retained on the court file.

3. Finally, I am asked to make an award for costs on the basis of the preparation of the application and affidavit and the very brief appearance of the instructing solicitor here this day. I propose to fix $700 as an appropriate cost sum. I specifically find that it is just pursuant to section 117 of the Family Law Act 1975 to make such an award of costs. I exclude any award for counsel, which was not in any even sought, because of the earlier orders covering counsel's costs of this day in related proceedings.

4. In the matter of Field & Maling there will further orders on a separate order document.  The husband's address will be shown care of Dr Maling with the residential Kuala Lumpur address as per exhibit “3”.

I certify that the preceding paragraphs are a true copy of the reasons for judgment herein of The Honourable Justice Young

Associate      

Date: 4 December 2007