Goldman and Goldman

[2007] FamCA 533

FAMILY COURT OF AUSTRALIA

GOLDMAN & GOLDMAN [2007] FamCA 533

FAMILY LAW - PRACTICE AND PROCEDURE - Adjournment - Application to bring property proceedings 7 years after divorce - Husband's legal representatives withdrawn - Adjournment granted on proviso husband pay certain costs and file affidavits from proposed witnesses

APPLICANT: MR GOLDMAN

RESPONDENT: MRS GOLDMAN

FILE NUMBER: MLF 6361 of 1992

DATE DELIVERED: 12 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Barry J

HEARING DATE: 12 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr A.E. Klotz

Orders

1. The Husband’s Application is adjourned to a date to be fixed.

2. I order the husband to pay the wife's costs of and incidental to the adjournment fixed in the sum of $4000 within a period of 10 weeks of today's date.  These proceedings are not to be relisted until the legal representatives for the wife confirm to a Registrar of this Court that such costs have been paid.

3. Paragraph 2 of the Consent Order of 12 July 2005 is discharged.

4. On or before 4 pm on 27 February, the husband is to deliver to the wife, care of her solicitors, B, … , a signed withdrawal of caveat for the removal of the caveat registered on the title to the property at M in the State of Victoria. 

5. In the event the husband does not sign the necessary removal of caveat document in accordance with these Orders, the matter is not to be relisted for trial on the application of the husband without the leave of a Judge of this Court.

6. That the husband is to file affidavits from Ms G, Mr S, Mr R, Mr P, Mr W, Mr J and such other witnesses upon which he intends to rely by way of affidavit evidence within 10 weeks from today's date. 

7. In the event that the Husband has not complied with the obligations provided for in these Orders within the time prescribed by these Orders, the husband's Application in Form 1 filed 8 June 2005 and Amended Application in Form 1 filed 22 November 2006 are dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6361 of 1992

MR GOLDMAN

Applicant

And

MRS GOLDMAN

Respondent

REASONS FOR JUDGMENT

1. The parties entered into a section 86 agreement back in mid-1992.  Section 86 agreements were intended to deal with issues of maintenance.  They were never intended to deal with property matters; they were dealt with under the terms of section 87 or by consent orders or by orders of the court.

2. Section 87 agreements had to be approved by a Judge who had to make a finding that the orders were just and equitable.  Section 86 agreements could be entered into between the parties and simply registered with the court.  The husband said it was prepared by the wife's solicitors.  I gather that the wife disputes that.  In any event, the document by way of recital sets out when the parties married and the fact that they finally separated late in the month of March 1992 and the fact that there was a child.  The deed proceeded to provide for the transfer of certain assets to the wife and for the wife to pay certain moneys to the husband.

3. Section 86(3) is in the following terms:

   “The court in which a maintenance agreement is registered under subsection (1) may set aside the agreement if, and only if, the court is satisfied that the concurrence of a party was obtained by fraud or undue influence or that the parties desire the agreement to be set aside.”

4. Clearly it is the wife's case that there was no fraud or undue influence at the time.  She certainly does not consent to the agreement being set aside.  When I look at this matter for present purposes, I have to in one sense put aside the wife's material and look at the husband's case at its highest.  It is possible the court would accept the husband's version of events and I proceed on that basis.  As I have noted, section 86 agreements could be varied or discharged simply on application.  They had no binding impact, as distinguished from agreements such as section 87 deeds or consent orders. 

5. In 1996, the husband went bankrupt.  In 1998, the husband filed for divorce.  It was his application.  I turn to his affidavit filed on 8 June.  The husband's position is that the wife and himself colluded together to defraud their creditors by putting the property into her name so that the property would be protected in the event, as transpired, that he would be declared bankrupt.  He says they never really separated.  In more recent times, they separated and lo and behold all the property is in the wife's name.  The husband says unless he is given leave to institute proceedings for property settlement he is going to end up with nothing.  In paragraph 5 he deposes:

   “I was made bankrupt in 1996 and as a result of the actions taken by the wife, our assets were protected.  This was the entire intention behind the discussions which the wife and I had which led to the agreement.  We were not separated and had never separated.  All of the provisions of the agreement were entered into for the sole purpose of defeating any claims of my creditors at the time that I became bankrupt and to preserve our assets.  In order to confirm the pretence of the separation, the wife suggested that I issue proceeding for divorce in 1998 and we were divorced by a decree granted on […] March 1998.  Once again, the matters in the divorce decree were false in that the wife and I had never stopped living together.”

6. I have gone back and looked at the divorce application filed by the husband.  This is a sworn document.  The document is in the following terms?

   “When did you and your wife separate?  3 June 1992.

   Have you and your spouse lived under the same roof at any time since separation?  No.

   At any time after you separated, have you and your wife lived as husband and wife?  No.

   Do you think it is likely that you will reconcile and live together as husband and wife?  No.”

7. All of that has been sworn to by the husband and yet he says in another sworn document, "We never separated."  Mr Goldman, as I cautioned you at the start of these proceedings, that is perjury.

8. I cannot resist noting as an aside, but when the husband filed for divorce, he gave his address as G, and the wife's address was M, which was the former matrimonial home.  The wife has actually filed an affidavit from the registered proprietor of the premises at G, Mr A.  He says from 1992 through to about 1997, the husband lived with him.  It corroborates the wife's story.  It is certainly contrary to the husband's story.  Anyway, that is an aside.

9. After the divorce application in 1998, the next step in these proceedings was in 2005 when the husband filed the current application.  As I have indicated, for present purposes I am treating it as a section 44(3) application to allow the husband to institute proceedings for property settlement.  I have cautioned the husband about the prospect of a referral of criminal proceedings.  I have cautioned the husband about the prospects of success in the application given the tests the court has to apply.

10. The husband instituted the proceedings in mid-2005.  The matter has been set down for trial for months.  He has filed no evidence; no affidavits from any witnesses.  He parts company with his legal representatives on about 31 January this year.  He has been unable, he says, to obtain any further legal representation since then.  He applied for an adjournment last week and I refused that adjournment.  He has appealed that decision.  Nothing of today's proceedings turns on that. 

11. On today's date, nothing daunted, he applies for a further adjournment but this time produces an affidavit from a psychiatrist with whom he had a consultation, I believe, on 29 January.  The affidavit has clearly been prepared by a legal practitioner.  I have perused the terms of that affidavit and the medical certificate.  There are no details in the husband's affidavit as to precisely how many solicitors he has tried to contact.  He does name a few.  He says in paragraph 11:

    “The only prejudice the wife would suffer as a result of any delay is minimal compared with the prejudice that I would suffer by the trial commencing.” 

12. I appreciate that on the wife's version, when the property settlement was entered into, the liabilities of the parties were such that there were precious few assets.  I accept at the present time the property is quite valuable.  Going back to the issue of prejudice, I accept that the material prejudice to the wife can be minimised by an order for costs with conditions attaching.  I accept that the wife is likely to have ongoing stress, but it appears that there has been stress in this matter since 1992.  It has continued just about unabated in view of the alleged conduct of the husband.  The husband in paragraph 12 says that:

    “The stress of the this proceeding and my lack of representation has caused me to be depressed, anxious, irrational, irresponsible and not able to think clearly.”

13. He then attaches an affidavit from Dr N, consultant psychiatrist, and his report is dated 29 January.  It says that the husband consulted him on that day.  This seemingly is prior to the husband and his solicitor parting company, and yet the report seems to indicate on its face that he said that his lawyer "had nearly given up on him and nobody is able to help him."  The doctor found that he presented in a rather distressed condition and complained of having frequent headaches, a high level of anxiety, poor, interrupted sleep, a dry mouth, tremulous hands and general discomfort.  I must say the doctor's observations do not accord with my observations of the husband who appears very much able to articulate his position, however the doctor goes on to say:

    “His condition was marked with quite severe distress, emotional instability, and during our lengthy interview he was close to tears.  He told me that he has no way of sorting out his problems.  He told me that his lawyers had nearly given up on him and nobody is able to help him.”

14. The doctor says:

    “I believe that he would need treatment and I believe that if his lawyer chooses to contact me, I would be quite happy to provide his lawyers with my professional opinion about [the husband’s] current psychiatric and psychological distress, disturbance and imbalance.  I also believe that he has been quite irrational, irresponsible and was not able to think clearly when he signed a lot of financial papers which are currently being used against him.”

15. Of course I would have thought the doctor's opinion on that is only as credible as the account of events that the husband has given him, but that is an aside on my part.

16. The husband says that he wants to subpoena witnesses.  I am going to obtain details of those witnesses and if he has not filed affidavits from those witnesses within a limited period of time, then his application is to be dismissed.  I take into account that he does not have legal representation for the purpose of today's proceedings.  English is not his first language, although he has been in Australia many, many years and he does appear to run his own business and otherwise be able to take charge of his affairs.

17. A significant fact is that he does not have the file.  When he was here last week I told him that he could inspect the court file as a right.  He does not appear to have done that other than to file an appeal against the refusal of the adjournment.  The husband says that in three weeks time he will have raised some $6,000 to $7,000 to be able to pay out his former lawyers and to then be able to get the file and be able to engage new lawyers. 

18. As I have said, I am minded to grant the adjournment, somewhat reluctantly.  I am highly cynical about the husband's bona fides, but in all the circumstances I am satisfied that by putting in place the orders that I propose to put in place, the prejudice to the wife will be minimal in a material or financial sense and the orders should only operate for a relatively short period of time.

19. As a condition to granting the adjournment, counsel for the wife has handed up a minute of draft orders.  He proposes the consent orders made on 12 July 2005 be set aside.  Those orders restrain the wife from dealing with the property in M.  That property is said to be worth somewhere in the vicinity of 800 to 900 thousand dollars.  There is a $350,000 mortgage on it.  The wife says she wants to dispose of that property, to pay out any liabilities and acquire a more modest apartment.  There is also a restraint on her dealing with her business.  I propose to lift both those restraints.  I am satisfied that the wife will not dispose of assets.  Even if she did, it would be an easy matter for this court to set aside that disposal. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  16 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GOLDMAN & GOLDMAN