Forster and Forster (No 3)

[2015] FamCA 790

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO 3) [2015] FamCA 790

FAMILY LAW – PRACTICE AND PROCEDURE – Application by husband to provide transcript of family law proceedings to a third party – Application granted in part – Application by husband seeking injunctive orders – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Forster

RESPONDENT: Ms Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 12 August 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 12 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Forster in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mrs Forster in person

SOLICITOR FOR THE RESPONDENT:

Orders

Accordingly, I make the following order:

1. Leave be given to the husband to obtain (at his own expense) and provide to the Legal Profession Conduct Commission of South Australia, in relation to any written complaint that the husband wishes to make against any such practitioner involved in these proceedings, the following documents:-

   (a)a copy of the transcript of the Family Court proceedings heard before me from 15 September 2014 to 26 September 2014; and

   (b)a copy of the transcript of the directions hearings on 24 June 2014 and 12 August 2014  .

2. Leave be given for the husband to listen to the transcript of the directions hearing before me on 24 June 2014.

3. The husband’s application in a case filed 21 July 2015 is dismissed.

IT IS NOTED

1. The reservation of costs contained in its orders of 1 May 2015 and 10 February 2015 are to abide any appeal in respect of those orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Foster & Foster (No.3) 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 HOBART

FILE NUMBER: ADC 3359 of 2007

Mr Forster

Applicant

And

Ms Forster

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There are two applications in a case before me by Mr Forster arising out of orders made by me on 10 February 2015 and which orders are now the subject of an appeal to the Full Court of the Family Court.  In that application Mr Forster relies upon his affidavit sworn 20 May 2015 where he gives a background and a history of the litigation, as he sees it.

2. In this affidavit Mr Forster says that he wishes to make complaints against a number of legal practitioners to various investigative tribunals and he seeks permissions to make the transcript, or parts of the transcript, available to those investigatory bodies.  When asked this morning, he said there were two bodies, essentially, to whom he wished to provide a copy of the transcript or, as he says, the relevant parts of the transcript.

3. The first is the Legal Profession Conduct Commissioner of South Australia who is apparently charged with the task of investigating complaints in relation to legal practitioners.  The second was a group whose name Mr Forster declined to provide to me.

4. In the proceedings, Mrs Forster, the wife filed a response on 3 June 2015 in which she sought “the husband’s application is dismissed” and an affidavit in support where she essentially makes submissions to which she made earlier today.

5. Mr Forster says that he needs an affidavit of service to show that that material was served upon him.  Clearly, the wife was not in a position to provide that today, although her submissions today were very much in the same light and the material in the affidavit was not in any sense factual material.  It was simply a submission that the husband’s application be dismissed.

6. I intend to proceed with that application.  I do not intend to give Mr Forster carte blanche, as he seeks, to make available the transcript to unnamed and unknown sources.  However, I see no reason why part or all of the transcript ought not to be made available in relation to any investigations the Legal Profession Conduct Committee of South Australia wish to make in relation to any legal practitioners involved in these proceedings.

7. Accordingly, I will be giving Mr Forster, leave at his own expense, to provide transcripts to the Legal Profession Conduct Commissioner of South Australia in relation to any complaints with regard to legal practitioners involved in these proceedings.  That ought not to be taken as in any way supporting or not supporting those applications.  That is in the different context and is not a matter for this Court except for the purpose of release of the transcript.

8. Mr Forster also filed an application in a case on 21 July 2015.  In that application he seeks ten orders, nine of which are substantive.  The tenth is a general catch-all order which is not addressed.  What were addressed were the substantive orders which the husband sought in his application numbers one to nine.  It is of value to set out the history of this matter and in terms of that I repeat the history that was contained in the substantive reasons in these proceedings from paragraphs 28 through to 125 of my substantive reasons delivered on 10 February 2015, which were:-

   28.       In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is established from the context of the statement.

   29.       The husband was born in 1951 and is a citizen of the United States.  He is aged 63 years. He currently resides in Australia.  He joined a government agency in the United States in 1970 at the age of 19.  The husband resigned from the government agency between December 1999 and February 2000, having been employed there about twenty nine years.  The husband and wife were in a relationship for about ten years at that time.

   30.       Prior to the commencement of his relationship with the wife, the husband had been previously married and there are five children of that relationship. 

   31.       As to his circumstances the husband says in his trial affidavit :-

   93.          I am presently 63 years old.  I am a retired [employee] from [a] United States [government agency].  My sole source of income is a pension that I receive from the United States [government agency], and technically is (sic) paid so that I might be [re-employed].  I receive the sum of $3,733 USD before tax per month.  [The wife] has inalienable rights under United States Law to seek a portion of the pension income.

   94.          I have served in [that] United States [government agency] for all of my working adult life.  I am unable to perform any other kind of work.  I am a United States Citizen, my son is in California and I may return there when all this is over.

   32.        The wife was born in Australia in 1968 and is now aged 46 years. 

   33.       The parties met in Hawaii in 1988 and married in Florida in …1989, when the wife was aged 19 and the husband was aged 37.  The wife’s evidence is that she was dominated and controlled by the husband, at least in terms of decision-making. I accept that evidence.  The wife rarely challenged the husband in decision-making and was afraid to enquire into the finances which were controlled by the husband.  The wife asserted that throughout the marriage the husband made constant complaints to her about her alleged lack of fidelity to him.  The husband asserted that the wife was guilty of a lack of fidelity during the marriage.  This Court restricted the evidence in relation to this issue as it had little or no bearing on the adjustment of property.

   34.       The wife is presently employed as a part time healthcare worker and has a taxable income of about $30,000 per year.  The wife had a diagnosed mental disorder which is set out in her trial affidavit.

   35.       There are two children of their marriage: [M] now aged 24, and [K] now aged 19 (almost 20).

   36.       From the date of their marriage until 1999 the parties had a somewhat peripatetic existence.  They initially lived together in Virginia in the United States but in mid-1990 the husband was posted for employment in Central America.  The wife returned to Australia with [M] and lived with her parents from May 1990 until November 1991 (about 18 months).

   37.       There is an issue between the parties as to whether the wife went to Australia of her own volition, or whether she could have remained living in the United States, or whether she could have lived with the husband when he was in Central America. Little swings on the cause in terms of property, but the factual basis of the wife being in effect a sole parent being supported by her parents over this time is a factor to which I have had regard.  The wife worked part time in a supermarket whilst in Australia. 

   38.       The parties resumed living together in about January 1992 while the husband was posted to Washington State and the wife worked in a store.

   39.       In January 1993 or thereabouts the husband was posted to Texas to attend a training course and he attended and completed that course.  Over the time the husband was studying, the wife and [M] returned to live with the wife’s parents in Australia; this was from January 1993 until January 1994.  There was an issue between the parties about the circumstances surrounding the wife and [M] remaining in the United States or living with the wife’s parents in Australia.  Given the evidence, I am satisfied that decision was a mutual arrangement.  The husband attended the training course in the United States, and was significantly supported in this endeavour by the wife living with her parents.

   40.       I have had regard to those 18 month and one year periods of support by the wife’s family in terms of contribution. 

   41.       The parties re-commenced living together when the husband was posted to Kansas from January/February 1994. They remained at that location until November 1994.

   42.       In November 1994 the parties moved to the husband’s next posting, which was in Hawaii.  The parties lived together in Hawaii until the wife and two children moved to Australia in late 1999.

   43.       The parties’ second son, [K] was born in Hawaii in … 1995.  The wife claims, and I have accepted, that the parties discussed the husband retiring from his employment.  Between 1996 and 1997 the wife received psychiatric treatment.

   44.       In 1997 the husband was charged with work based offences, of which offence or offences the husband was eventually acquitted.

   45.       In October 1999 the wife and two children moved from Hawaii to Adelaide. Apart from three months in Hawaii in about 2003, the wife has lived permanently in Australia since that time.  She undertook paid domestic work from then until 2009.

   46.       The husband asserted separation in October 1999.  I did not accept his evidence of that alleged separation.  In his affidavit filed 23 July 2007 in the then Federal Magistrates Court  the husband’s evidence at paragraph 95, 98, 99 and 100 are indicative that the marriage continued well after the time that he asserted that it came to an end.  Similarly, the language of the husband in the letter he sent to the wife with regard to some funds towards the purchase of [P Street] is that of a person who was in a continuing relationship.

   47.       I accept the wife’s evidence as to the date of separation.

   48.       After leaving the government agency from 2000 until 2007, the husband moved to and from Australia.  Most of the time he was in the United States, where he pursued litigation of various forms.

   49.       In 2000 and 2001 the husband arranged to ship the possessions of the parties from the United States to Australia.

   50.       In June 2000 the parties purchased a home at [P Street] in Adelaide (“[P Street]”).  The purchase price was $198,000 and the stamp duty was about $7,000 and the whole amount was financed by the parties.  The cost was about $204,000 and I find that most of that money for that purchase came from funds controlled or provided by the husband.

   51.       The wife said she had applied term deposits of $24,000 towards that purchase.  As to that pool of property, I am satisfied that a small part of this sum came from her earnings or entitlements accumulated during the marriage, but that the overwhelming majority of that sum came from funds provided by the husband.

   52.       Given the lack of objective evidence as to the funds of the husband at the commencement of the parties’ relationship it is likely that those sums were accumulated during the marriage.  I have had regard to this in terms of assessment of contribution.

   53.       The home was registered as to sixty five per cent in the name of the husband and thirty five per cent in the name of the wife.  The wife asserts that her family contributed $13,000 towards painting [P Street].  That assertion was disputed by the husband.  I accept that $13,000 was provided by the wife’s family.  I also accept that the wife’s late father, a qualified painter, painted the home.

   54.       In late 2003 or 2004 the wife travelled to the United States at the husband’s request to give a deposition for legal proceedings in that country.  The wife was away for about three months and the parties’ children were cared for by the wife’s parents.

   55.       The husband was involved in a number of legal cases in the United States in various courts.  One of those actions involved the wife as a party.  The wife asserted that she and the husband kept in regular telephone contact over that period.  I accept that evidence.

   56.       Given the evidence of the wife and the objective circumstances surrounding the events from 1999 to 2007, and my earlier comments, I find that the parties separated on 17 May 2007. This was a contentious issue.  The objective evidence included the purchase of [P Street], the wife executing a Power of Attorney in the husband’s favour in December 2003,  the signing of a legal fees agreement with [Mr G] (a US Attorney), the wife’s visit for three months to the United States in 2003 or 2004 where she stayed in a flat with the husband and assisted him in the litigation, the husband asking the wife to invest funds for him in the form of term deposits or similar investments with Westpac, ANZ and/or the Commonwealth Bank after 1999, that the parties cohabited at her parent’s home and then at [P Street] for a period of months on the wife’s evidence (October 2005 to early 2006).  

   57.       The wife asserted that in October 2005 the husband visited Australia and stayed with her at her parent’s home.  The wife claimed that she and the husband lived at [P Street] until May 2007.  The husband claimed that the parties were in essence separated but that the wife and children resided in the house.

   58.       The wife claimed that in May 2007 she was asked by the husband if she was having an affair.  She admitted that was the case and said the husband threatened her.  The wife said that she regarded the marriage as being over at that time.

   59.       The husband denies making threats to the wife and denies that he has engaged in any family violence.  There is no Kennon  argument in these proceedings.

   60.       I accept the evidence of the wife as to the threats made to her in May 2007 and her immediate steps in complaining to the police in relation to those threats  and instructing solicitors to act for her in relation to family law proceedings as shown in the statement from the wife’s solicitor of 6 May 2008.

   61.       I accept that at that time, 17 May 2007, the wife was afraid of the consequences of the failure of their marriage, which had been deteriorating over a number of years.

   62.       The wife commenced proceedings in respect of parenting and property in the then Federal Magistrates Court on 19 June 2007.  There has been constant litigation since that time.  As best I can I have set out the procedural history of the litigation between these parties.

   63.       After the proceedings commenced in mid-2007 they were listed for hearing in May 2008 in the then Federal Magistrates Court.  At that time the proceedings were adjourned for submissions.  In October 2008 the husband was ordered to attend for a psychiatric assessment.  He did not attend.  On 19 December 2008 an order was made for the appointment of a litigation guardian for the husband. 

   64.       A property trial was conducted in the then Federal Magistrates Court for two days in October 2009 where the husband was present and represented by a litigation guardian through Counsel.  That defended hearing adjourned part heard to 30 March 2010.  The husband did not attend Court on the 30 March 2010 hearing.

   65.       On 23 April 2010 final property orders were made; they provided that the husband retains [P Street] and that he pay to the wife the sum of $349,600.  He did not voluntarily pay that sum. 

   66.       In June 2010 enforcement orders were made for the sale of [P Street].

   67.       In July 2010 the husband sought leave to appeal the appointment of his case guardian.  That leave was granted in September 2010.  The husband did not prosecute that appeal until he filed an outline of argument on 19 December 2011, a delay of about a year and a half.

   68.       On 1 October 2010 the property order was varied by consent to $329,600, apparently on the motion of the case guardian for the husband.  On the same day an order was made for a payment to the wife, by way of partial payment of property orders, of $70,000 being from the husband’s funds held in the wife’s solicitors trust account.

   69.       On 8 September 2011 the wife sought and obtained a warrant for possession of [P Street].  That warrant was executed on 28 October 2011. 

   70.       On 6 December 2011 an order was made in the then Federal Magistrates Court that the husband pay the wife’s costs of the first instance proceedings of $40,000.

   71.       On 16 December 2011 an order was made in the then Federal Magistrates Court for removal of personal property from [P Street] to permit the sale of both the home and the chattels.  Those chattels were removed between 5 March 2012 and 13 March 2012.

   72.       On 19 March 2012, in the Federal Magistrates Court, there was an application made for a restraining order in relation to the removal of the furniture.  By that time the furniture and chattels had been removed.

   73.       Pursuant to the original enforcement orders, in early 2012 the home was put on the market and an offer was made to purchase the home in February 2012 for $430,000.  The husband was informed of that offer but did not respond to it. 

   74.       On 23 March 2012 the husband’s appeal to the Full Court in relation to the appointment of the case guardian in the then Federal Magistrates Court was allowed.  The question of the status of the 2010 property orders was unclear. 

   75.       In December 2011 the wife filed an application for divorce; the wife had difficulties serving the husband with that application.  He eventually filed a response, opposing the divorce order.   In the hearing before me, the husband deposed that he was not opposing the divorce.  That evidence was wrong as the response made it clear that the husband opposed the granting of a divorce order. This evidence was a small part of my reasoning for having doubts about the general reliability of his evidence.

   76.       The divorce application was heard by Dawe J on 30 November 2012; the divorce order was made together with an order for costs in favour of the wife.

   77.       On 9 November 2012 the wife made an application for the sale of [P Street].  That application was granted by an order of the Court made by Dawe J, also on 30 November 2012.

   78.       A contract for sale of [P Street] was executed in December 2012.

   79.       On 19 December 2012 Strickland J, exercising the appellate jurisdiction of the Family Court, found that the property order made 23 April 2010 (varied on 1 October 2010) and the costs order made 6 December 2011 were voidable.  He did not vacate those property and costs orders, at that time.

   80.       The proceedings came back before Strickland J on 15 January 2013 (given his findings on 19 December 2012) and the Court gave leave to the wife to file fresh property proceedings.  She filed that fresh application 17 January 2013 together with an affidavit and financial statement.

   81.       On the following day the wife filed an application to enable the issue of a new title deed to enable the completion of the sale of [P Street].  On 21 January 2013 Dessau J made procedural orders and on 23 January 2013, orders were made to enable the issue of a duplicate certificate of title.

   82.       The following day, 24 January 2013, the sale of [P Street] was completed and the sum of $404,822 was deposited into a trust account. 

   83.       The husband sought a stay of the orders to issue a duplicate certificate of title.  That stay application was dismissed.  It was not clear to me whether the stay application was made before or after the completion of the sale of [P Street].

   84.       On 31 January 2013, on the wife’s application, Strickland J set aside the property orders made 23 April 2010 (varied 1 October 2010) and the $40,000 costs order made 6 December 2011 in the then Federal Magistrates Court.

   85.       The wife’s then first instance proceedings were referred for re-hearing to a judge of the Family Court.

   86.       The husband had lodged an appeal against a decision of Strickland J and that application with leave to appeal was dismissed on 21 June 2013.

   87.       On 23 August 2013 Strickland J made orders that the husband pay the wife’s costs of an appeal in the amount of $13,000.  It was not clear to me whether that costs order has been paid or remains unsatisfied.  Given the approach by the parties, little swings on that sum.  If it is unpaid it is an asset of the wife and a liability of the husband and ought not to be adjusted in the scope of this determination.  It will be open for the wife to seek enforcement. If it is paid then it is dealt with in the expenditure by the parties.

   88.       When the hearing came on before Cronin J in July 2013, the husband sought an adjournment of those proceedings.  The husband asserted that he had instructed a solicitor to appear for him at that hearing.  He believed that the trial was to be in Melbourne and said he had informed his solicitors of that circumstance.  Given the history of the proceedings and the lack of trust between the parties it was perhaps not unexpected that the wife would want the hearing to proceed and she opposed the adjournment.  The husband’s adjournment application was refused. 

   89.       On 1 and 2 July 2013 a trial was conducted before Cronin J, the husband did not participate.  The application was heard on an undefended basis and orders were made on 2 July 2013.  Pursuant to the orders of Cronin J the wife applied the sum of $297,000 towards the payment of her costs, the payment out of a loan to the Commonwealth Bank (being a loan to fund litigation from earlier times) and applied $70,000 of those funds towards the purchase the home at [Suburb A] with [Mr E].

   90.       The husband lodged an appeal against the property orders made by Cronin J, and there were other appeals pending.

   91.       The appeal against the property orders was heard simultaneously with other appeals and application for leave to appeal lodged by the husband.  He had lodged a series of appeals from orders made on 30 November 2012, 23 January 2013, 31 January 2013, 28 March 2013 and the second final property orders made 2 July 2013.

   92.       Those appeals were heard together on 10 October 2013 and reasons published and orders made on 15 May 2014.

   93.       In relation to the appeal against the orders for the sale of [P Street] (in circumstances on the question of whether it was procedurally unfair or “an abuse” of discretion for orders to be made for such sale) the Full Court determined that there was no lack of procedural fairness, a miscarriage of discretion or inadequacy of reasons for the orders for sale, and further that leave to appeal could not be granted because the property had been sold to a bona fide purchaser.

   94.       In relation to the husband’s appeal against the costs orders in the divorce application, the Full Court found that the trial judge had provided adequate reasons, and that appeal was dismissed.

   95.       In relation to the refusal to grant an adjournment of the trial being conducted in Adelaide, in circumstances where the husband had organised for legal representation in Melbourne and that lawyer sought an adjournment which was refused and the lawyer withdrew, the husband then asked for an adjournment based on the need for legal representation and that adjournment was refused.  The Full Court determined that the adjournment should have been granted and the property orders were set aside and a new trial was ordered (this trial).

   96.       The husband had also sought leave to appeal an order for the issue of a new certificate of title, leave to appeal that order was refused.

   97.       The appeal in relation to the January 2013 order (setting aside the voidable property and costs orders) was apparently made in the absence of a party.  That appeal was dismissed.

   98.       The application for leave to appeal in relation to procedural orders made by Cronin J was dismissed.

   99.       The proceedings were placed in my docket for hearing.  Given the long history of the proceedings I listed it for directions as soon as was practicable.

   100.    Thus on 24 June 2014 the matter came before me for directions.  I listed the proceedings for final hearing in Adelaide for five days commencing 15 September 2014.  I directed the filing of affidavits, expert reports and financial statements.  I directed that, three business days before the commencement of the hearing, the parties file and serve case outlines, which contained the list of documents upon which each party seeks to rely, a chronology, the orders that each party seeks and outline of that parties’ case.

   101.    That listing gave the parties just about three months to prepare for the hearing.

   102.    In August 2014 further orders were made by my docket Registrar extending the time for the wife to disclose documents that she had not already complied with and to provide financial details of her new home and her partner, [Mr E].  The husband was given leave to issue a subpoena to the Commonwealth Bank of Australia and the conveyancers who were engaged on the sale of [P Street].  The question of costs was reserved and I have referred to reserved costs in these reasons and my orders.  The Registrar extended compliance dates as to order 8 made 24 June 2014.

   103.    About two weeks or so before this hearing the husband engaged Mr Finlayson, a solicitor, to appear for him.  Given his late involvement and to enable material to be filed I made further directions to enable the husband to file affidavit and other material which had not been filed by the husband in accordance with my earlier directions.

   104.    About one week before the first day of hearing, at the request of the husband’s solicitor, I made further directions, extending time for the husband to file his material.

   105.    During the hearing, the husband became an unrepresented litigant, and as a consequence was struggling to present his case in the best light possible.  I endeavoured to provide him with as much procedural assistance as possible. 

   106.    However, the husband is not a stranger to court proceedings given the history of proceedings in the Family Court, the Full Court of the Family Court and special leave application to the High Court.

   107.    There is evidence that he is engaged in a number of law suits in the United States.

   108.    The husband made numerous complaints that the wife and her solicitor had failed to discover relevant documents.  This complaint was persistently made by him throughout the hearing.

   109.    In terms of his assertion that he did not have the discovered documents  this was unmeritorious and for the reasons set out, I find that the husband’s behaviour in relation to such complaints about discovery was untrue, calculated and mischievous.

   110.    At the conclusion of the five days of evidence, to enable the husband to prepare his submissions, I adjourned the proceedings part heard for a week to the following Friday, 26 September 2014. 

   111.    Those submissions were taken over about three to four hours on that Friday, with the lion’s share of that time being taken by submissions made by the husband.

   112.    As I said earlier, it was not clear as to what orders the husband sought until the close of the wife’s case, on the fourth day of evidence.  His formal case outline was only provided to the counsel for the wife on Friday 26 September 2014 and provided to this Court on that day or the day before.

   113.    In advance of making his closing submissions the husband made an application for a ‘re-hearing’. 

   114.    I asked the husband what he was seeking in terms of the term ‘re-hearing’.  The husband initially did not answer that question.  I then asked him whether he was seeking leave to call further evidence or whether he was suggesting that the proceedings ought to be abandoned altogether and started again.

   115.    The husband’s then submission was that the hearing ought to be abandoned altogether and started again.

   116.    I asked him for the basis of that application.

   117.    When making his submissions the husband reiterated his belief that the wife had failed to make full and proper discovery.  Given the evidence, I rejected that contention.

   118.    He complained that the parties had not complied with directions made by me in June 2014.

   119.    One was for the provision of a trial book, which material was to be page numbered and that the wife’s document was not page numbered.  

   120.    The husband complained that the wife may have been a little late in filing her affidavits.  That may be the case, but the husband was not prejudiced by that, given his later extensions of time.

   121.    The husband did not file his trial material until a few days before the commencement of the trial and his documents discovered to the wife were tendered by the wife. 

   122.    The other documents upon which he sought to rely were contained in Exhibit W8 being a portion of a bundle which was produced some time during the trial.

   123.    The husband complained that he was cross-examined about documents which were not in that bundle of material.  A number of those documents arose from material discovered by the husband.

   124.    Given the evidence and history of this matter, that application was without merit and it was dismissed.

   125.    These reasons follow my re-hearing of the wife’s property proceeding.

   [footnotes omitted]

1. I have also had regard to the orders that were made by me pursuant to those reasons, which orders I note are subject of an appeal to the Full Court. 

2. Mr Forster made an application in a case seeking a stay of part of those orders.  That came before me on 1 May 2015 and by consent I made orders staying the payment by the husband to the wife of $151,379.50, and I made consent orders relating to a stay in respect of the deletion of medical reports.  I made a consent stay order in relation to the return of documents on subpoena.  I made a number of other orders and I reserved costs.

3. Mr Forster now seeks a series of orders, and I will deal with them consecutively.  Orders one and eight seem to be an application in some form or another to restrain the wife and her solicitor from destroying or otherwise damaging or making unavailable her documents in relation to these proceedings. 

4. In his affidavit filed in support of that application the husband sets out his perception of the history of the proceedings and he complains, as he did in the substantive hearing, that the wife did not make full and frank disclosure.  He made, as I discussed in terms of the stay application, criticism of the solicitor who acted for him at the commencement of the hearing before me.  He complains, as he did during the trial, that the wife has not been truthful.  He complains that she had been engaged, if I am not mistaken, in behaviour which was less than he thought was wifely during the course of the marriage.  He complains that Ms Hicks, the wife’s former solicitor, had not made disclosure, and my recollection is that I made findings in relation to her credit and the credit in relation to the husband.

5. As far as I can identify from the material, there is no evidence of documents being destroyed.  There is complaint throughout the course of the process that the wife and her solicitor, or through her solicitor, has not made full and frank disclosure, which I dealt with in terms of the substantive reasons.  As such, I do not intend to make the orders sought by Mr Forster in orders 1 and 8, and I intend to dismiss that part of his application.

6. Orders two, three and four appear to be together as a holistic order and in many ways reflect what the husband sought in the stay application, which is, that the moneys that had been paid to Ms Hicks during the course of the earlier proceedings and that the proceeds of the sale of the former matrimonial home be put into a trust fund pending the outcome of the appeal.  I made findings in relation to those funds in my substantive reasons.  I declined to make the orders sought by the husband in the stay application, and given the evidence before me, and given the history of this matter, I see nothing has arisen since the stay application for there to be a change to those circumstances.  As a consequence, I will not be making orders two, three and four as sought in the application filed 21 August 2015.

7. Order five sought by the husband is an order that the wife be prohibited from selling, transferring or disposing of any property in her name or her partner’s name or others.  In the course of submissions, Mr Forster said that this was an application against the wife’s partner.  On any reading of that, it could not be the case, and, in any event, there is no evidence in the affidavits, either the May affidavit or the July affidavit, upon which such an injunction could be based pending the outcome of the appeal, and particularly given my findings in relation to the disposal of the funds to which I have alluded earlier.  As such, I will not be making order five of the injunctive order sought by the husband.

8. The husband seeks an order that the wife be restricted from redeeming any United States savings bonds purchased by the applicant (the husband).  Given the findings in relation to this matter made by me and given the lack of evidence in respect of this application by the husband, I see no basis upon which this order can be made.  The husband said he had a letter from the American authorities in relation to the bonds, which he said he thought was dated July or August 2015, but which letter had not been attached to his affidavit, nor had it been made available to the wife or the Court.  As such, that application must fail.

9. In terms of the question of costs, which is order seven, and I will make the order clear, that any costs orders I make must await the determination by the Full Court or, if Mr Forster thinks it appropriate, any special leave application to the High Court.  I do not intend to determine the questions of costs at this stage, and I am satisfied that they are dealt with in my order of 1 May and my order of 10 February, but I will make it clear in the orders that I make.

10. Finally, the husband seeks an order that the wife pay and/or her solicitor pay a bond of $700,000 pending the finalisation of the appeal to the Full Court and, if required, the appeal to the High Court.  Given the evidence before me, there is no evidentiary basis upon which that bond could be made against the wife, nor, if she were joined to the proceedings, could it have been made against the wife’s solicitor, given the findings of fact made by me in the substantive proceedings.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 August 2015.

Associate:     

Date:              12 August 2015