Forster and Forster (No. 6)

[2013] FamCA 482

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 6) [2013] FamCA 482

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of trial directions refused pending appeal – Grounds of appeal disclose no merit – Extension of time to file affidavit.

Family Law Act 1975 (Cth)

APPLICANT: Mr Forster

RESPONDENT: Ms Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 14 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11, 14 June 2013

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Ms Hicks

Orders

1. That the application of the husband for a stay of the orders made on 28 March 2013 is refused.

2. That the time for filing of the husband’s evidence in chief along with the affidavits of any witnesses that he intends to rely upon as well as a financial statement is extended to 4.00pm on Wednesday 26 June 2013.

3. That to the extent necessary, the wife has leave to lead evidence on a viva voce basis at the trial should it be necessary to respond to any material in the affidavit of the husband.

4. That the husband has leave by arrangement with the Registrar to issue a subpoena or subpoenae to such banking institutions as he satisfies the Registrar have documents in their power or control that are relevant to the issues in dispute between the parties.

5. That the application in a case otherwise filed on 3 June 2013 is dismissed.

6. That any application for costs be made at the time of the trial and they are otherwise reserved in respect of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 6) 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

Mr Forster

Applicant

And

Ms Forster

Respondent

REASONS FOR JUDGMENT

1. By an application in a case filed by Mr Forster, (“the husband”) in the Adelaide Registry on 3 June 2013, he seeks four orders.  My interpretation of what he seeks is as follows:

   ·    That orders made on 28 March 2013 be stayed pending an appeal;

   ·    If a stay is not so granted, he be granted an extension of time to file an affidavit relating to this evidence in chief for the forthcoming trial;

   ·    The wife provide financial information in respect of a particular account; and

   ·    Should the wife fail to produce the financial documents from the institution, a subpoena be issued for the production of records to a financial institution for a period from 2003 to present time.

2. Although the respondent Ms Forster, (“the wife”) appeared and was represented by her solicitor, she filed no documentation responding to the husband’s application in a case but it was clear from an affidavit that she had filed only days before the hearing what her position was in relation to what might loosely be described as the discovery issue.

3. This matter came on for hearing before me on 11 June 2013 by video link from Adelaide to Melbourne.  I did not have the Court’s file at that time although it transpires that it was in transit and arrived after the Court commenced sitting.  I otherwise had a copy of the applicant’s application in a case and his affidavit which had been sent to Melbourne by a registrar in South Australia.  In that first hearing, the husband indicated that there was more that he wanted to say and because of other commitments, I adjourned the matter to Friday 14 June 2013 to hear from him further.

4. I reconvened the hearing on 14 June 2013 by video link again from Adelaide and to my chagrin, the technology failed.  It was a busy defended hearing date here in Melbourne.  The husband indicated that everything that he wanted to say in respect of his application was not only set out in the original affidavit that he filed with his application but also in a further affidavit that the Registry staff in Adelaide had refused to allow him to file.  I gave him permission to file that affidavit and I have now read it and taken it into account in the determination I am about to make.  The husband indicated that on the basis of all of that material, he had nothing further to say.

5. Ms Hicks on behalf of the wife indicated similarly that she had nothing to say but that I could take into account the matters set out in her client’s affidavit which indeed predated the filing of the application by the husband.

6. It is trite to say that this is a difficult matter which has run over a number of years in this Court and in the Federal Magistrates Court.  There are pending appeals in the Full Court of this Court and I understand an application for special leave in the High Court of Australia.

The stay application

1. In the orders I made on 28 March 2013, I set the case down for hearing and made procedural orders for the filing of affidavit material.  The setting down was opposed by the husband and I ruled in favour of the wife.  The trial is set for 1 July 2013.  I made procedural orders for the filing of affidavits on dates that were mentioned in the order.  The wife complied.  The husband did not comply.  Hence his application for an extension of time if his stay application is rejected.

2. It goes without saying also that although this application in a case deals with a stay in respect of the discrete order made on 28 March 2013, there can be little doubt about the resolve of the husband to continue his various appeals and his resistance to this Court determining any property settlement dispute until he sees that justice is done.

3. The dispute is about the fact that at the time orders were made under s 79 of the Family Law Act 1975 (Cth) (“the Act”), the husband was represented by a litigation guardian pursuant to an order made by a federal magistrate. Orders were made without his knowledge. The husband subsequently appealed and was successful in having the litigation guardian order set aside. The matter was ultimately before Strickland J and his Honour discharged the s 79 orders made by the federal magistrate for the reasons that his Honour then gave.

4. Dawe J ordered the sale of the home prior to the orders of Strickland J and indeed, I made orders in January 2013 to give effect to the orders of Dawe J.  All of those are subject to an appeal.

5. The combined effect of the more recent orders is that the house was sold, settlement took place and no doubt, a new title has been issued to the new registered proprietors.  It is the husband’s position that all of that should be set aside and his home be returned to him.  Although it is not entirely clear to me, it would appear that there is about $80,000 in cash sitting in a trust account from that sale.

The notice of appeal

1. The husband filed the Notice of Appeal on 22 April 2013 against my orders setting the case down for trial on 1 July 2013.  His application is for leave to appeal.  What follows are his grounds together with my comments in relation to them.

2. Ground 1 asserts that there was an error by the Court in that he was not allowed to rely on previous affidavits. That particular order was made having regard to the provisions of rule 15.06 of the Family Law Rules 2004.

3. The second ground was that the husband was required to file a financial statement.  He somehow objects to that order.  That is covered by rule 13.05(2) and rule 13.06.   

4. The third ground was that I indicated that he could only use previous financial statements for rebuttal purposes.  I did not say that and I do not say it now.

5. The fourth ground was that there was an error made in ordering documents be served by him by post on the wife’s solicitors.  It is not appropriate to plead as a ground that an error was simply made.

6. It is hard therefore to assess the merits of any such appeal.  I acknowledge that this is simply part of a bigger picture of an appeal which goes to the question of the sale of the home.

7. In respect of the stay itself, Strickland J delivered reasons for judgment on 20 March 2013.  That related to a different matter but the underlying issue remains the same.  His Honour set out at paragraph 13, the relevant principles relating to a stay and I respectfully adopt those in these reasons.

8. Here I find:

   ·    The husband has the onus to establish that there is a proper basis for a stay and because of the grounds just mentioned, I cannot see any prospect of success in an appeal against the orders;

   ·    The wife is also entitled to have not only her case heard but to bring this lengthy and costly litigation to an end;

   ·    The wife is entitled to presume that the string of judgments here are correct;

   ·    There is little doubt that the husband believes his mantra about being denied natural justice but there are two parties to this litigation and the wife is being precluded from getting on with her life.

9. On 13 January 2013, Strickland J had set aside the extant orders leaving the parties without orders under Part VIII of the Act and enlivening the s 79 jurisdiction. Therefore the husband has a right to be heard on that property issue and he seems disinclined for that to happen because he desires his appeal heard first.

10. I find also that the discrete appeal has no merit for the reasons I have set out above.

11. As I understand it, the husband also has a special leave application before the High Court of Australia and he informed the Court that he did not have information as to when that would be determined. However, Ms Hicks advised that the Registry has said that it will not be before August. This case has been ongoing since 2007. I cannot see a basis upon which I can stop the proceedings bearing in mind that the jurisdiction under s 79 is now again enlivened. I do not understand what the application is for special leave. Bearing in mind the discrete nature of this application, it does not show any ground that would justify a stay of the orders that I made. Accordingly, the trial will proceed.

The second issue

1. Effectively, the husband sought an extension of time.  He had ample time since the hearing in March 2013 to start to prepare.  I am not convinced that he is making an effort even if he was waiting for the wife’s affidavit as he says.  He said in his affidavit that he wanted discovery but has only now raised that issue after the deadline for the filing of the affidavit.  I have read paragraph 64 to 76 of his affidavit and I note in the wife’s trial affidavit, she denies that discovery has not been provided.  She set out clearly what she has done and refers to 700 pages of information that she has provided.  She responded to the other assertions in the husband’s affidavit by paragraphs 4 to 16 of her own affidavit.  It is perplexing that the husband ignores that. 

2. In his second affidavit, the husband was somewhat more expansive.  He asserted that the wife’s solicitor had circumvented discovery by failing to provide the documents he had requested.  Having regard to the affidavit of the wife to which I have just referred, there seems little doubt that he has had access to those documents or could now obtain that information himself.

3. The husband also sought “unadulterated copies” of telephone bills from 2005 to June 2007.  This has something to do with his pursuit of a relationship the wife was having with another person.  No justification in the affidavit was shown that would enable me to make a finding that it was relevant to the property proceedings.

4. The husband then goes on to refer to the fact that he wanted details as to when the wife formed the mental intent to separate. Having regard to the issue in the final hearing in July 2013 relating to the division of the assets of the parties under s 79 of the Act, that has no relevance to these proceedings.

5. The husband said that absent that information, he was unable to question the wife’s credibility.  He relied upon a statement of the wife in an affidavit in November 2012 that she was unable to rent the home out because residents had told her that the husband had said that he would interfere with anyone who moved into the house.  He denied that statement was made.  He can certainly put that to the wife in cross-examination as part of his attack on her credit but it otherwise has limited relevance having regard to the assets that are now in dispute. 

6. The husband then goes on to refer to the use of previous affidavits.  As I earlier mentioned, the rules set out quite clearly what that is about.  It is not appropriate for the Court to give legal advice.

7. Further in relation to discovery, the husband said that the wife had deposited large sums of money and the source had not been identified or provided and he named the account.  The wife has denied any impropriety and for that reason, I think it is appropriate that discovery having been exhausted on that issue, the husband should be at liberty to issue a subpoena.

8. Some of the other matters in relation to the deposit and withdrawal of large sums of money as asserted by the husband are simply comment and I do not intend to consider them further.

9. The husband under a heading “Conspiracy – undermine US civil litigation” said that there were proceedings in the United States in which a named person utilised his position to seize his personal properties as he travelled on military bases.  This apparently had something to do with the wife indulging in extra-marital affairs.  He asserted a conspiracy involving the wife’s solicitor arising out of correspondence said to have been sent to ensure that the wife was excluded from that United States litigation.  Those are matters that can clearly be alleged in his trial affidavit if they have some substance and relevance to the proceedings before this Court.  The husband wanted to subpoena and acquire information from the wife’s former partner apparently going to her credibility.  It seems to me that that is a subpoena for a collateral purpose and I would not grant permission for it to be issued.

10. The husband then said that there were funds provided from the wife’s father that gave rise to the purchase of the now sold house and he wanted details of those.  As I understand the position put by the wife, those documents are available in the already discovered documents.

11. In relation to the rental issue, the husband said that he had requested copies of rental payment receipts paid to the wife’s father.  He said that in 1996, her father informed him that he was purchasing a property for the husband and wife to live in.  That person is not a party to the proceedings and nothing that I read in the affidavit would give rise to the assertion of a trust.

12. In May 2013, he wrote to the wife’s solicitor requesting information in relation to a merchant receipt.  He annexed it to his affidavit.  These purchases are modest in quantum and Ms Hicks on behalf of the wife indicated that they related to a vacuum cleaner.  Having regard to the nature of this dispute, it is hard to see the relevance and I do not propose to descend into that issue and waste the Court’s time further.

13. The husband then said that he had consistently contacted the financial institutions in the United States to provide him with financial records but they had failed to reply.  He said therefore that he was in a consistent disadvantage and he needed several affidavits from individuals in the United States.  By that he meant that he had to go back to the United States to get those affidavits.  I reject that as a proposition in this electronic age.

14. The husband then made reference to the matters that I earlier mentioned about his pursuit of justice and it is not appropriate that I comment in respect of those any further.

15. Finally, the husband said that there was a prospect that the wife would benefit from her father in some way but if he obtained legal advice about that, he would know how to act.  It is simply not adequate for him to throw up an allegation and leave it for the Court to try and work out what he meant.

16. Finally, the husband said:

    Though the litigation should not and cannot proceed until my house and money is returned.  Justice demands it.

17. Unfortunately, the mantra to which I have just referred is not a basis in my view to hold up these proceedings.  I have not been able to see any prospect of success in any appeals.  I appreciate that that is a subjective judgment knowing what I have read but I take into account that judgments have been made and as earlier mentioned, the wife is entitled to the fruits of her judgment until such time as the Court stops her entitlement being accessed.  Nothing I have read or heard justifies that conclusion at this stage. 

18. Accordingly, the husband must get ready for trial.

19. Having regard to what I have earlier said, I propose to extend his time to file his trial affidavit and will give the wife leave to respond on a viva voce basis in the trial.  In respect of discovery, to the extent that the wife maintains she has fully complied, the husband can issue a subpoena if he can satisfy the Registrar based on these reasons that there is some relevance in that material that he is pursuing.

20. I shall make orders accordingly.

I certify that the preceding Forty Two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 June 2013.

Associate: 

Date:  24 June 2013