GREFELD & GREFELD

[2017] FamCA 1174

FAMILY COURT OF AUSTRALIA

GREFELD & GREFELD [2017] FamCA 1174

FAMILY LAW – PRACTICE AND PROCEDURE – Property Adjustment – Where neither party has taken any steps in the proceedings for almost seven years – Where both parties failed to comply with orders made by the Senior Registrar – Where there are effectively no assets remaining for distribution – Matter dismissed for want of prosecution

Family Law Act 1975 (Cth)

APPLICANT: Ms Grefeld

RESPONDENT: Mr Grefeld

FILE NUMBER: BRF 2504 of 2005

DATE DELIVERED: 18 April 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 April 2017

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

Orders

1. The matter be dismissed for want of prosecution.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grefeld & Grefeld has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2504 of 2005

Ms Grefeld

Applicant

And

Mr Grefeld

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Sometime in 2005, the wife in this matter commenced property adjustment proceedings in this Court in respect to the marriage between her and the respondent that had broken down.  In February 2006, the applicant wife filed an Amended Application seeking final orders in the property adjustment proceedings between her and the respondent. 

2. Those orders she was seeking were as follows:

   1.That by way of alteration of property interests pursuant to section 79 of the Family Law Act, the Court make such orders and declarations concerning the parties property as the Court deems appropriate.

   2.That until completion of disclosure between the parties, the Wife be excused from particularising the section 79 Orders and Declarations sought.

   3.For a declaration that the Second Respondent holds the ownership of the property situated at Suburb A on trust for the Husband, Mr Grefeld.

   4.That for an injunction (sic) to restrain the Second Respondent from disposing of or encumbering the property pending the hearing of the Applicant’s Application for Property Settlement filed 1^st September, 2005.

   5.That the Respondent Husband pay the costs of and incidental to this application.

3. The second respondent, Ms J Grefeld, who is the husband’s younger sister, holds the ownership of the property situated at Suburb A, on trust for the husband.

4. In June 2007, the respondent husband filed an Amended Response in which he sought a declaration pursuant to s 78 of the Family Law Act in respect of the property at Suburb C.  He also sought a further order that an account be taken of the assets and liabilities of the parties, and that the net assets be divided between he and the wife in such proportions as this Court deems meet.

5. It seems then, the wife having commenced proceedings in which she was seeking orders and declarations binding upon the husband’s sister, that the husband’s sister who, as I have said, is named as the second respondent and a party to the proceedings, brought her own application for orders as against the applicant in respect of real property that was registered in the name of the applicant wife at E Road, Suburb B in the State of Queensland, at the time.  That application of the second respondent, supported by the first respondent husband to some degree, was heard before the Honourable Justice Barry as he then was (now with all due respect, retired and deceased) in June 2010. At that hearing the applicant wife was represented by very experienced counsel, namely Mr Hamwood, instructed by one of the most experienced family lawyers in Queensland, namely Mr Peter Sheehy. The respondent husband appeared by telephone from Europe and represented himself.  The second respondent, who was effectively the applicant in that proceeding, was also represented by very experienced specialist family lawyers in the form of Jones McCarthy and very experienced counsel, namely Mr Neil McGregor. 

6. Justice Barry handed down his decision in the matter on 22 June 2010 and effectively, in short I say, upheld the respondent sister’s claim and declared that the applicant wife held all of her right, title and interest in the property at E Road, Suburb B, on trust for the second respondent, the sister of the respondent husband.  His Honour also ordered that the wife do all things necessary to transfer that property to the second respondent sister.  In addition, Justice Barry ordered that the applicant wife retain, without further claim from the first respondent husband, the land at Suburb C in the State of Queensland, an order that his Honour made effectively on an interim basis but as a partial property settlement order. 

7. His Honour delivered a very detailed 31 page written judgment which contained the reasons for his orders and declarations that day.  My understanding of the history of the matter is that the wife appealed against the orders of Justice Barry, taking the matter to the Full Court of this Court.  Her appeal was dismissed by the Full Court and the Orders made by Justice Barry remained unchanged. 

8. Nearly seven years has expired since that date.  The matter comes before me today in order to determine simply the future of the proceedings before the Court.  On 15 November 2016, at a directions hearing that was convened and heard by Registrar Spink of this Court at which both parties attended by telephone, each of them unrepresented by lawyers, Registrar Spink ordered that by 4.00 pm on 25 November 2016 each of the parties file and serve a minute of order setting out the orders that they still seek in relation to final property settlement as between them.  He also said in that Order that if the parties do not seek any further orders, consideration would be given to listing the matter before a judge for dismissal of the proceedings.

9. On 21 February 2017 Senior Registrar Spink, as he now is, made the following orders in respect of this matter: that it be listed before a judge on 18 April 2017 (namely today) for consideration that the proceedings be dismissed for want of prosecution; and that each of the parties are required to appear in person unless prior approval was given for them to appear by telephone – I note that that is what happened, both parties sought leave to appear by telephone and I granted that leave.

10. When the matter came before me this morning the respondent husband appeared by telephone from Europe.  It is in the middle of the night in Europe and it is appreciated that the respondent husband has gotten up or stayed up at least into the middle of the night to attend this important hearing this morning. The applicant wife has also appeared by telephone, it being impossible for her to get here from the Z Region this morning due to other responsibilities, seemingly related to her adult son’s two year child who she is caring for today.

11. During the course of the hearing today, I outlined to both the husband and the wife that the matter is being considered today by me with a view to determining the future of the proceedings, including whether or not it should be dismissed today for want of prosecution.  Principally, the applicant wife being the applicant in the proceedings, I called upon her to make submissions to me as to what she considered should be the further progress of the matter and as to why it should not be dismissed for want of prosecution, having regard to Registrar Spink’s previous order and having regard to the fact that nothing has happened in respect of the matter for now some seven years.

12. The respondent was also called upon and, ultimately, he effectively submitted to me that the matter should really be dismissed and ended by such dismissal. 

13. I have decided it is proper to dismiss the application for a number of reasons. Firstly, as I have outlined, nothing has happened in the matter, no formal step has been taken by either party, but most particularly by the applicant wife, in many years since the unsuccessful appeal against Justice Barry’s orders.  Indeed, no compliance with the direction of Registrar Spink has occurred, namely the direction to file a minute of final orders that are sought in the matter. 

14. In addition though, my determination to dismiss the matter is supported in my view, by concessions from the parties that there is no property in Australia of the parties or either of them against which any orders of the court in respect of property adjustment made pursuant to s 79 of the Act could in fact be made. As I have already pointed out, his Honour Justice Barry made an order in 2010 that can be described as a partial property adjustment order, that allowed the wife to retain legal and equitable ownership solely in her name of a property at the Z Region. The wife informs the Court that she has had to sell that property and use the proceeds of sale to pay all her outstanding legal fees, so she no longer has an interest in that property and all of the proceeds of its sale have been spent.

15. So there is, I accept, no property of the parties or either of them in which s 79 orders could be made in this country and I am satisfied, for the reasons I have given, that the appropriate outcome is for the proceedings to be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 April 2017.

Associate: 

Date:  11 January 2019