Gull and Gull

[2007] FamCA 777

FAMILY COURT OF AUSTRALIA

GULL & GULL [2007] FamCA 777

FAMILY LAW – PRACTICE AND PROCEDURE - Alleged insufficient disclosure of financial information – Readiness of matter for trial – Complexity of overseas proceedings and assets – Final hearing adjourned.

Family Law Act 1975

APPLICANT: Mrs Gull

RESPONDENT: Mr Gull

FILE NUMBER: MLF 2723 of 2004

DATE DELIVERED: 20 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 20 June 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr P. O'Connor

SOLICITOR FOR THE RESPONDENT: Vernon Da Gama & Associates

Orders

1. That the wife’s evidence this day be transcribed and when transcribed a copy be sent to each party the proceedings.

2. That the hearing this day be vacated and the competing proceedings under Part VIII of the Act for a final alteration of property be adjourned to the Court Services Manager to be allocated a final hearing as a primary matter estimated to take 5 days and to commence on 26 November 2007.

3. That as far as is practicable litigation be managed in this Registry by Registrar Field or in the event of her unavailability to do so by another Registrar nominated by her and all documents to be filed including subpoenae be filed through her or her nominee.

4. That until further order either party may cause subpoenae to produce documents to issue returnable on the first Tuesday of each calendar month subject to compliance with the Family Law Rules 2004 in relation to the notification of those subpoenae to the other side.

5. That by 5pm on 6 July 2007 the husband make, file and serve an affidavit in which he details the jewellery and valuables which he alleges were removed from a safe deposit locker at a bank in Mumbai, India and detailed in correspondence which appears as annexure “B2” to his affidavit sworn on 13 August 2006.

6. That by 5pm on 6 July 2007 the wife provide the following documents and things to the solicitors for the husband:-

   (a)A copy or duplicate of any group certificate issued to her since 2001 evidencing income and for this purpose the wife do all acts and things necessary to obtain such documents either from her previous employers or from the Australian Taxation Office;

   (b)The particulars by which any accounts which she has operated with ANZ Bank or St George Bank Limited may be identified including the BSB number of the account, the number of the account and the name in which the account was styled or the name of the account holder;

   (c)Details of any account which she operated at a financial institution since 2001 other than the aforementioned account(s) with ANZ Bank or the aforementioned account(s) with St George Bank Limited;

   (d)Any consent or authority to the release by Centrelink of documents pertaining to herself which are described in a letter dated 15 May 2006 from Legal Services Branch of Centrelink being part of annexure “BG26” to the affidavit of the husband sworn 13 August 2006.

7. That the husband’s solicitors be and are hereby restrained until further order from causing, permitting or suffering to be communicated to the husband details of the name and address of any employer which is apparent from the copy group certificates provided by the wife pursuant to subparagraph 6(a) of this Order.

8. That together with the matters to which the husband is required to depose pursuant to paragraph 5 hereof the husband provide a detailed description of his banking between 2001 and 2004 including the name and address of any bank at which he held an account and the nature of the deposits and withdrawals from the account and his efforts to obtain copy statements of the account including where such exists, communications in writing passing between the husband and the bank and the bank and the husband.

9. That my Court Officer take a copy of the affidavit of the husband sworn 8 August 1997 being a documents referred to by him in his evidence given this day, the copy then be marked exhibit “H1” and remain on the Court file together with the four (4) pages handed up by the wife and referred to be the wife in her evidence which will be marked exhibit “W1” and remain on the Court file.

10. That the costs of the husband of this day be reserved to the learned trial Judge subject to the discretion of the learned trial Judge. 

11. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Gull & Gull.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2723 of 2004

MRS GULL

Applicant

And

MR GULL

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter involves competing applications for final alteration of property interests as between the husband and the wife.  It was allocated a three day final hearing to commence today and the court was ready to hear the matter earlier this afternoon.  It was transferred to me because the parties foreshadowed to the List Judge, Young J, that there would be an application for an adjournment.  

2. The wife appears in person.  Mr O’Connell, of Counsel, appears for the husband who is in Court.  

3. There is not much that the parties agree upon.  However, each does say that they are prejudiced by the failure of the other party to disclose documents which that party is required to disclose.  Each blames the other for there being an insufficiency of evidence in relation to matters which he or she want determined.  It is clear that the matter cannot proceed and be contained within the three days.  These reasons describe briefly the complaints of each party against the other, as I comprehend them, and the basis upon which I have made certain orders in anticipation of a final hearing now scheduled for 26 November 2007. 

4. The complaints by the parties against each other in relation to financial matters are far ranging and contain some unusual allegations.  I required each to give some brief evidence about their own financial situation.  I have directed that that evidence be transcribed and it will be available on the court file, so I do not traverse in these reasons matters dealt with in evidence and in discussions between me and the witnesses. 

5. The evidence was given but I did not permit any cross examination by the other party. 

6. Very briefly the history of the matter appears to be that the parties commenced to reside together when they married in 1991.  They are separated.  According to the wife separation occurred in 2001 when the husband went to the Middle East to work and he remained away until 2004.  The husband on the other hand said that the marriage subsisted during this period and the parties did not separate until 2004.  They agree that they were divorced in 2005. 

7. The parties and the one child of their marriage (known as R) came to Australia in 2001. 

8. The wife asserts that at the commencement of cohabitation (1991) neither party had any assets of any significance.  On the other hand the husband asserts that he had $10,000 in an Indian account held in a series of fixed term deposits in respect of which he has provided the wife with documents.  He also says that he was the owner, with his sister, of a vacant block of land in G, India.  This land was purchased for $1500 from one Mr F in approximately 1989 which was, he says, significantly prior to the commencement of cohabitation and/or the marriage of the parties.  He says that it was purchased as vacant land and is still vacant land.  

9. In the course of preparing for these proceedings the husband has obtained evidence, which he says is expert evidence, that the current market value of that property is the equivalent of $3000.  He says, on oath, that in the course of having that valuation undertaken, it was discovered that the G property has never been transferred into the name of his sister or himself and remains in the name of the vendor.  He says that he has made application to have it transferred into their joint names.  

10. Then there is a property formerly occupied by his father at Mumbai, India.  The wife asserts that this property is property which ought to be taken into account in these proceedings for final alteration of property interests.  The husband says it is just a leasehold interest held in the name of his father.  His father died in 1995.  The lease provided for a month to month tenancy.  The husband concedes that he pays the rent annually.  The rent is about $6 per annum.  He gave evidence that his brother-in-law (who is the brother of the wife) is in occupation of that property.  The husband says that the wife’s brother has no right to live there and he may have to take proceedings to have him removed.  

11. Going back to the history of the marriage.  The parties and the child are now Australian citizens.  It is clear that proceedings have been instituted by the wife in Australia and in India.  The wife says that certain proceedings should be conducted in India.  However, she makes no application for a stay of these proceedings whilst the proceedings in India can be concluded.  The wife is self represented as a matter of choice rather than necessity.  She advised me that she does not propose to retain solicitors.  I have suggested to her that the sort of application which she has foreshadowed, to stay these proceedings in favour of concluding the proceedings in India, is the sort of application about which she may well require some legal advice in order to prosecute as successfully as possible.  

12. For the husband's part he would like the invested funds of the parties which amount to about $450,000 or at least some part of them to be brought into Australia prior to the final hearing.  He had no application before me today for that.  It seems to me that that is the sort of application that may well have to await a final determination. 

13. The pool of assets which are immediately identifiable indicate that this should not be a long case, but as I said I fear that it may blow out.  The only thing worse than having the proceedings set down for hearing and becoming protracted is to have them set down for hearing and have them yet again not reached or further adjourned.  On 17 January 2006 this matter came before Mushin J and he appointed a conciliation conference for 24 February 2006 and said that thereafter and in the event that the matter was not resolved he would accord the matter “priority”. 

14. The husband through his counsel has estimated three days as sufficient for a final hearing.  I do not think that is necessarily going to be sufficient time.  

    
    

    I have allocated the matter five days.  I do not have confidence in either of the parties being able to curtail the case to three days.  I wish to avoid a situation where there is yet a further adjournment. 

15. I make these comments now because, when the matter is set down for a hearing of five days duration, there must be some potential for the matter to go longer than five days.  It ought not go longer than 5 days but I cannot ignore the possibility that one party might say it could.  It would be prudent to list the matter in such a way that it could be recommenced part heard at some not too inconvenient future date.  It would be most unfortunate if this matter were not commenced on the adjourned date merely because there is a risk that it will not conclude within the time allocated.  It is a matter which requires determination and that simply will not eventuate unless it is started. 

16. The other order that I have made is to make Registrar Field responsible for management of the matter within the court.  The purpose of this is so that the parties essentially deal with only one person.  However, I know that the Registrar has other commitments and it may not be possible for her to attend to the matter personally.  Therefore, if she choses to nominate another Registrar my order will apply to them. 

17. Neither party has made any application to me in relation to evidence.  It seems that each relies on some form of expert evidence from India, or perhaps if they don't, they should.  There are particular issues relating to overseas property and evidence in relation to overseas laws.  Absent agreement between themselves, neither party should assume that it will be possible state the effect of laws in India.  They will need expert evidence to do that.  They will also have to consider the particular requirements for seeking to adduce opinion evidence from overseas in relation to, say, the valuation of the property at G, India, or the ownership of the property in which the wife's brother resides at Mumbai. 

18. The husband has made application for costs based not on the fact of the matter having to be adjourned, which he concedes is the case, but on the basis that the wife has failed to disclose documents that she is required to disclose.  The wife has brought to court the four pages to which I have earlier referred in relation to her financial circumstances.  She says that is all there is.  It will now be for the husband to make some effort, by way of the issuance of subpoena, to see if there are any other any other documents.  It seems to me that costs is not a matter that can be properly determined until those subpoenas have been effected, and that is going to be probably not until a final hearing.  I will therefore reserve the costs.  The wife says that she opposed the reservation of costs.  She wondered why she could not get costs.  She is self represented.  She said that her brother has flown from India for the purpose of the hearing and she has paid his airfare to do so.  That does not appear to me to be a cost associated with the adjournment.  It is late in the day and I have imposed upon my Court Officer to sit well after 5pm.  I will not make any final determination about the wife’s costs of today.  If the wife wants to put that application in proper form for determination at the final hearing, she may do so. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  3 August 2007