Forster and Forster (No. 5)

[2013] FamCA 259

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 5) [2013] FamCA 259

FAMILY LAW – PRACTICE AND PROCEDURE – Husband believes that there should be no proceeding until his appeals were determined – Held that this would be inappropriate and unreasonable to the wife.

Family Law Act 1975 (Cth)

APPLICANT: Ms Forster

RESPONDENT: Mr Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 28 MARCH 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms West

SOLICITOR FOR THE APPLICANT: Catherine Hicks & Co

THE RESPONDENT: In Person

Orders

1. That all applications for final orders be adjourned for hearing before Justice Cronin as the first case in the list in Adelaide commencing on 1 July 2013 at 10 am as a two day matter and that the evidence in chief of all witnesses be given by affidavit.

2. That by 4 pm on 20 May 2013 the applicant file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

3. That the applicant pay all setting down and trial fees by 4 pm on 20 May 2013 (if they are not already paid).

4. That by 4 pm on 27 May 2013 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought (if he considers it necessary to do so);

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

5. That by 4 pm on 3 June 2013 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

6. That no party file any further material other than as provided by these orders without leave of the Court.

7. That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

8. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

9. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

10. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar,

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

11. That the practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4 pm on 26 June 2013 the following:

    (a)       a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)       a list of assets and liabilities;

    (d)       a list of objections to evidence upon which rulings are required; and

    (e)       a bullet-point summary of argument in relation to the issues in dispute.

12. If discovery and disclosure has not been completed, each party by 4 pm on 18 April 2013 provide to the other party a list of all documents required for inspection and within 21 days thereafter, subject to any objection on the grounds of privilege, such documents be made available for and be inspected by the other party(ies).

13. That all documents in future for the purposes of proceedings under the Family Law Act 1975 (Cth) be served by the husband by post upon the address for service for the wife through her solicitors noting that an acknowledgement of service of each of those documents is not required.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 5) 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: ADC 3359 of 2007

Ms Forster

Applicant

And

Mr Forster

Respondent

REASONS FOR JUDGMENT

1. On 31 January 2013, Strickland J set aside a variety of orders the effect of which was to require the re-determination of any property dispute between the parties. That order enlivened Part VIII of the Family Law Act 1975 (“the Act”). His Honour gave comprehensive reasons why those orders should be set aside. I am conscious that the husband has lodged an appeal against those orders.

2. The fourth order of Strickland J was for the initiating application of the wife and the response thereto of the husband to be referred to a registrar for the purposes of listing the case for trial before a judge.

3. In his Honour’s reasons, he referred to the fact that I was available to manage the matter from Melbourne and to hear the trial but that it would be necessary to conduct a directions hearing either by telephone or video link.

4. On 28 March 2013, I conducted that video link. Ms West of counsel appeared on behalf of the applicant wife and the husband appeared in person. I did not have sufficient time to give reasons why the matter should be listed but these are those reasons.

5. I informed the parties that my concern about following what had been suggested by Strickland J was that there were indeed two pending appeals against orders that I had made earlier in the year. Ms West indicated she saw no difficulty with my previous involvement nor with the fact that the appeals were still pending. The husband on the other hand had an entirely different view. His complaint was that he had been denied due process and he wanted his appeals heard notwithstanding that there were now no substantive property division orders in place.

6. There being no current orders in place, the trial management pathway is set out in chapter 16 of the Family Law Rules 2004. Rule 16.11 provides that the purpose of the first procedural hearing is to identify the issues and, amongst other things, consider and determine a plan for the trial.

7. The husband told me that he currently has a number of appeal applications pending. One of those applications is an application for special leave to the High Court of Australia. At least one other appeal is to the Full Court of this Court. As presently advised, I do not know whether the husband needs leave of the Full Court to be able to proceed with that.

8. It is clear however that the husband has a significant grievance about process. I consistently had to remind him that appeals were against orders and the justification for a court altering orders depended upon the reasons given. In this case, despite valiant attempts to explain to the husband that there was now a “blank property canvas”, he persisted in indicating that his focus was on getting the appeals heard first.

9. When the property orders were originally made, the husband was represented by a guardian pursuant to an order of the Federal Magistrates Court and he was not involved in what culminated in final property orders by consent. On appeal and much later, the Full Court set aside the order about the guardianship. That left the property orders extant. It was those orders that Strickland J set aside in January 2013.

10. The significant difference between the original property orders and the position now seems to me to lie in the nature of the property of the parties. Originally, there was a house but pursuant to a variety of orders, that was sold and the proceeds are now in cash in a trust account.

11. Again despite my endeavours to indicate to the husband that it was the property now in existence that the Court would be dividing, he reverted to the mantra that he wanted justice and that he was appealing against the process. Even if he was denied proper process, the wife too has an entitlement to have her case heard under Part VIII of the Act and more so now because the bulk of the property appears to be tied up in a trust account.

12. The best information I have available to me was provided by Ms West who said that from enquiries, the appeal to the Full Court would not be heard until October this year and the documents in relation to the special leave application to the High Court of Australia had only just been lodged. I am conscious of the fact that as a litigant in person, the husband may not necessarily receive the opportunity to argue his case on a special leave application orally. It may be that the justices of that Court determine the matter under the High Court rules in Chambers.

13. I am not at all clear what the husband's argument is in relation to the division of property but he did complain about discovery. Accordingly it is appropriate that I make orders in relation to that issue. That however does not seem to me to justify the whole property division application being held up whilst the appeal process continues. That is because I must question the utility of such an appeal.

14. Counsel for the wife indicated that the house has been sold, the settlement has taken place and the money is sitting in a trust account. I asked the husband whether he was proposing to seek orders that would effectively dislodge the current legal owners of the property but I was unable to get a clear answer because he reverted to the mantra about process and his rights of appeal. It is also important to point out that one of the orders that was made in this case was that the Registrar of Titles issue a new title under State law and that appears to have occurred. It is hard to envisage how all of those steps or transactions could be set aside putting the property back into the name of the husband so that this Court could then divide the property as between the husband and wife. Hence my concern about the utility of the various appeals.

15. Taking all of those matters into account, I ruled it was necessary for the matter to be listed as had been contemplated by Strickland J. I see no prejudice to the husband based on my understanding of the utility of his appeals.

16. Even factoring in the position of the husband because of what has happened to him, those matters could be addressed under s 79 (2) of the Act.

17. Thus my understanding of the husband's position was that there should be no proceeding until such time as his appeals were determined and in my view, that is inappropriate and unreasonable to the wife and would not be an efficient use of the resources of this Court.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 March 2013.

Associate: 

Date:  24 April 2013