Foley and Hailes (No. 2)

[2014] FamCA 731

FAMILY COURT OF AUSTRALIA

FOLEY & HAILES (NO. 2) [2014] FamCA 731

FAMILY LAW – PRACTICE AND PROCEDURE – Matter listed for undefended determination of application for alteration of property interests – husband appeared and says that he will now participate in proceedings – extension of times within which husband is to file documents – potential intervener – matter adjourned to judicial duty list for consideration of wife’s application for sole use and occupation of residence – direction for written submissions as to costs

APPLICANT: Ms Foley

RESPONDENT: Mr Hailes

FILE NUMBER: MLC 1774 of 2014

DATE DELIVERED: 26 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 26 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkins

SOLICITOR FOR THE APPLICANT: Noble House Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1.There be leave to the husband to file and serve a Notice of Address for Service.

2.The wife’s interim application for sole use and occupation or alternatively a sale of the former matrimonial home and real property at B Street, C Town in the State of Victoria be listed for hearing in the Judicial Duty List on 3 October 2014 at 10.00 am (“the adjourned date”).

3.The time for compliance by the husband with paragraph 1 of the Order made on 15 April 2014 (and extended on 16 July 2014 and 6 August 2014) be extended to 12.00 noon on Friday 12 September 2014 and be accompanied by any affidavit upon which he wishes to rely on the adjourned date in relation to the wife’s interim applications.

4.In anticipation of the adjourned date, the wife file and serve any affidavit material upon which she relies in reply to the husband’s response by not later than 12.00 noon on Friday 26 September 2014.

5.Until the adjourned date each party is at liberty to cause subpoena(s) to produce documents to issue returnable in any subpoena list or on the adjourned date.

6.The husband provide to the wife within 7 days the following documents or things:-

a)      a copy of the charge which he says is executed in favour of Mr Seoud, solicitor, and which secures some $250,000 by way of unpaid legal costs;

b)      copy documents and pleadings in relation to the pending proceedings in the Supreme Court of Victoria by the husband  in which he claims works rendered.

7.By not later than 12.00 noon on Tuesday 2 September 2014 the wife file and serve written submissions in support of her application for costs thrown away up to and including this day by reason of the husband’s failure to participate in the proceedings after 15 April 2014, such submissions to include an itemisation of costs drawn in accordance with the Family Law Scale of costs, be not more than 6 pages in length (excluding the itemised costs or any agreement relied upon).

8.Within 7 days of compliance by the wife with the preceding order in relation her written submissions as to costs,  the husband file and serve his written submissions in response such submissions to not exceed six pages in length.

9.Each party shall include in their written submissions in relation to costs application an indication as to whether or not:-

a)      he/she seeks to be heard by oral submissions in addition to the written submissions;

b)      he/she is content that I proceed to fix the quantum sum of an costs which I am satisfied should be paid in preference to the matter proceeding to an assessment of costs by the Registrar.

c)If the parties agree to any extension of time for the filing and service of written submissions in relation to costs, the party next filing a submission note that agreement in his/her submission and attach correspondence from the other party confirming that agreement.

d)My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to each party to the proceeding.

IT IS DIRECTED:

e)That upon the Court rising my Court Officer provide the husband and the wife with a copy of the file cover showing all documents filed in these proceedings.

f)My Associate send a sealed copy of this Order to Mr Seoud at the email address recently used for correspondence between him and the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Foley & Hailes (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1774 of 2014

Ms Foley

Applicant

And

Mr Hailes

Respondent

REASONS FOR JUDGMENT

ex-tempore

1. This matter was adjourned out of the judicial duty list by me on 6 August 2014 for the purpose of the matter proceeding to an undefended final hearing this day. My reasons for decisions on 6 August 2014 make clear the circumstances which prevailed at that time.

2. Today, Ms Foley (“the wife”) attended court and proposed to proceed with her application on a final unopposed basis.  In that respect there is an affidavit from her solicitor, sworn 7 August 2014, confirming that Mr Hailes (“the husband”) was notified by text message of today’s date and her proposal to proceed on an undefended basis. Additionally, the wife has filed an affidavit, affirmed on 21 July 2014, in preparation for the matter proceeding on an unopposed basis and she has an amended application initiating proceedings, also filed on 22 July 2014. All are duly served.

3. Today, the husband attended court. He says he now wishes to participate in the proceedings and seeks an opportunity to file documents in that respect. He opposes the matter proceeding to a final determination today.

4. Interestingly, the husband says that he wasn’t aware of the court dates which he has missed.  That seems to me unlikely, at least in relation to the court dates which were set on 15 April 2014, when the husband appeared in person before Registrar Field and would have heard the dates pronounced.

5. On 15 April 2014 it was also ordered that the husband file and serve a response and financial statement by 14 May 2014.  He failed or neglected to do so.

6. It was also specified that by not later than 6 June 2014, the parties would exchange certain documents.  However, the husband failed or neglected to do so.

7. On 15 April 2014 it was ordered that the parties “together with their lawyers attend a conciliation conference with the registrar on 16 July 2014 at 9.15 am.” The husband failed to do so.

8. The orders provided that by not later than 2 July 2014, the parties obtain a valuation of the real property at B Street, C Town, but the husband has not participated in that either.

9. Not only was the husband at court on 15 April 2014, but the orders were engrossed and sent to the husband at the address which is the same address he has provided as his address for service today. All of the dates that I have mentioned above were highlighted in the order by appearing in bold type.

10. As I commented on in my earlier reasons for decision, the conciliation conference before Registrar Field could not proceed on 16 July 2014 by virtue of the non-attendance of the husband.

11. The wife seeks to proceed with her final application on an undefended basis today.  However, I am not satisfied that that is appropriate.

12. The husband says that he will participate in the proceedings.  It seems to me he should have one last opportunity to do so, providing that he is able to compensate the wife for any costs which are thrown away and which the court, ultimately, decide he ought to be responsible for.

13. The husband has confirmed that if he is ordered to pay costs, he will pay those costs.  That is, he seeks an indulgence from the court, for further time in which to file his documents but he says that if the court orders that he pay costs after considering the matters in s 117, he will abide by that order.  I take that preparedness of the husband to minimise the inconvenience and prejudice to the wife by abiding by any costs order into account in providing the husband with one last opportunity.

14. I have made provision for the parties to file written submissions in relation to costs because that was their preference. Those submissions should include a list of costs itemised in accordance with Schedule 3 to the Rules. The parties should make clear whether I can fix costs or whether they wish to have costs assessed by a Registrar with the extra costs that an assessment will necessarily incur.

15. The wife is accommodating herself in temporary, but costly, accommodation and says that she cannot afford to do so for any longer.  If the real property cannot be sold, she wants to move back into it, although I am unaware, at this stage, of what capacity she would have to pay the outgoings in respect of the property, which include a mortgage of some $1.4 million.

16. The property incorporates a training centre, which is a business, which is rented out and managed by third parties.  The husband is in the residence on the property and has been since separation.  He says that the wife is welcome to return to live with him but it is the wife’s case that she does not want to return with the husband there.  She seeks sole use and occupation of the property.  The husband says that if he is required to leave the property he has nowhere to go.

17. These are disputes which will be decided in the judicial duty list on 3 October 2014. The parties may wish to consider their options realistically including, for instance, if the husband wishes to remain in the residence, what immediate and appropriate financial provision can he make for the wife? There should be a number of judges available on that day to hear the matter so the parties should be ready to proceed at 10.00 am, sharp, having conducted any negotiations earlier that day.

18. Mr Seuod, a solicitor, attended court and appeared in court on his own behalf.  He left court prior to the matter being concluded.  I now note, in the correspondence section of the court file, that I had not earlier seen, some facsimile correspondence between the court and Mr Seoud.

19. It appears that, on 22 August 2014, Mr Seoud wrote to the court saying:

    I have been contacted by the solicitor for [the wife] in respect of the above matter.
    
    I am advised by Melissa Patterson of Noble House Lawyers that the above matter has been listed for a final hearing on an undefended basis on 26 August 2014 before His Honour Justice Bennett.
    
    I act for [the husband] in Supreme Court Proceedings currently on foot. I do not act for [the husband] in this matter. I have a charge over the matrimonial property pursuant to my cost agreement with [the husband]. I have acted for [the husband] since January 2012 on this basis and without being paid.
    
    I have been advised by Ms Patterson that [the wife] is seeking orders from the Court to remove my charge over the property. I strongly oppose this.
    
    I have not had any notice of this matter until late afternoon yesterday. I am instructing in a Federal Circuit Court matter between 25 August and 28 August.
    
    I request that if there is a possibility that orders will be made dealing with my charge in any way, that I be afforded the opportunity to respond. Accordingly, I request that the hearing be adjourned and that orders be made to provide me with relevant pleadings and documents to do so.

20. Within a few hours the case co-ordinator in this court responded in the following terms:

    We refer to the email received from Mr Omar Seoud on 22 August 2014, as attached, and advise as follows:

    ·The Court cannot deal with the issues raised in your email by correspondence.

    ·If you are seeking any orders in this Court you will need to file a formal Application.

    ·If you are seeking an adjournment of the hearing listed on 26 August 2014, then this can be done by consent if all parties and practitioners agree, in writing, otherwise the matter proceeds on the due date.

    In this email we have included a scan of our letter forwarded directly to [the husband] together with the sealed copy of the Order made on 6 August 2014 by the Honourable Justice Bennett.

21. Today Mr Seoud appeared without any application.  He said that he would seek an adjournment of some two weeks in order to file an application but that notwithstanding he is a solicitor, he would need to seek legal advice because he is not familiar with family law matters. He then went on to say he needed to be somewhere else because he was conducting a matter in the Federal Circuit Court in this building. I don’t know whether it was a family law matter or a general federal law matter or otherwise.

22. Mr Seoud said that he needed two weeks to file documents. He did not make an oral application in the meantime. I am not making any order to the effect that Mr Seoud can have an adjournment of anything.  In any event, there is at least two weeks before the next return date so he has an opportunity to seek to intervene in these proceedings if he wishes to or is advised to do so. However, the next steps Mr Seoud takes ought to observe the Rules of Court and not be, as today, little more than a visit to say that he would like to do something in the future which may impact on the proceeding between the husband and wife.

23. Mr Seoud’s interest, apparently, derives from a charge executed by the husband in or about 2012.  He says that the charge currently secures unpaid legal costs of $250,000, including the conveyancing costs for the acquisition of the property at B Street, C Town. He informed the court, from the bar table, that the legal costs are attributable to a number of Supreme Court proceedings in which he has acted for the husband or entities controlled by him and all of the matters are civil matters (not criminal).

24. Mr Seoud acknowledges that he has not provided any notice to the wife of his charge over the property insofar as he has not previously spoken to her about it although he purports to have taken the charge during a time when the husband and wife lived together. The property is in joint names.

25. Mr Seoud lodged a caveat in support of the charge in April 2014 but it appears to be common ground that notification of the caveat would have been sent from the Registrar of Titles Office to the C Town address and it is also common ground that the wife has not lived there since November 2013.

26. Having regard to the fact that Mr Seoud left court to attend to another matter, I will direct that my associate send him a copy of the order made today by email to the same address as has been used for correspondence within the last few days.  This is an indulgence for Mr Seoud.  He should not expect that it will be done on future occasions that the matter returns to court unless, of course, he becomes a party to the proceedings.

27. The husband says that he has retained a lawyer, that is Ms Laura Muccitelli, of Slater and Gordon Solicitors, 485 La Trobe Street, Melbourne.  He saw her earlier this week and, he says, will consult with Ms Muccitelli on Monday, 1 September 2014.

28. The husband sought seven days in which to prepare and file documents in these proceedings.  I have given him longer than that because he had not asked Ms Muccitelli how long she required.  However, it is now necessary that he abide by the timetable that I have provided for in this order.  There are also the submissions that Ms Muccitelli will have to prepare in relation to costs. I will determine costs after the submissions are filed but, in the meantime, the pressing issues of interim support and occupation of the residence on the property at C Town are listed for hearing on 30 October 2014 and absent agreement between the parties, must be ready to proceed on that day.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 26 August 2014.

Associate: 

Date:  8 September 2014