HOLLAND & HOLLAND

[2015] FCCA 1207

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLLAND & HOLLAND [2015] FCCA 1207

Catchwords:
FAMILY LAW – SPOUSAL MAINTENANCE – Application in a Case –  Urgent Maintenance – interim maintenance – urgent spousal maintenance – whether immediate need for financial assistance – where applicant has not shown an immediate need of financial assistance – where no evidence of the respondent’s capacity to pay.

FAMILY LAW – SPOUSAL MAINTENANCE – Application for an order of a lump sum to defray anticipated legal costs – where no evidence of likely legal costs – where no evidence of fund from which lump sum could be paid – no evidence of capacity to pay.

FAMILY LAW – PROPERTY – Declaration – where applicant claims that a truck in the possession of the respondent is her property – where respondent in his affidavit concedes that the vehicle is the property of the applicant.

PRACTICE AND PROCEDURE – Conduct of the parties to the litigation – unexplained delay by respondent in filing and serving Response, affidavit and Financial Statement – affidavits in reply filed by applicant without leave of the Court.

COSTS – Where neither party wholly unsuccessful – conduct of the parties to the proceedings in relation to the proceedings generally – parties to pay their own costs.

Legislation:

Family Law Act 1975 (Cth), ss.72, 74, 77, 78, 79, 117

Federal Circuit Court Rules 2001, r.4.03

Cases cited:
Celestin & Celestin [2011]  FamCA 74
Chapman & Chapman (1979) FLC 90-671
Geston & Geston [2011] FMCAfam 1418
Grimshaw-Grieves & Grieves [2011] FMCAfam 125
Gylseth & Bates [2010] FMCAfam 794
Gyopar & Gyopar (1986) FLC 91-679
Kennon & Kennon (1997) 22 Fam LR 1; FLC 92-757
Kowalski & Kowalski (1993) FLC 92-342
Malcolm & Malcolm (1977) FLC 90-220
Moloney & Beams [2013] FCCA 85
Redman & Redman (1987)  FLC 91-805
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166; (2009) 242 FLR 1; (2011) FLC 93-466

Applicant: MS HOLLAND

Respondent: MR HOLLAND

File Number: SYC 4984 of 2014

Judgment of: Judge Scarlett

Hearing date: 31 October 2014

Date of Last Submission: 31 October 2014

Delivered at: Sydney

Delivered on: 11 May 2015

REPRESENTATION

Solicitor for the Applicant: Mr Sher

Solicitors for the Applicant: Drayton Sher Lawyers

Counsel for the Respondent: Mr Ahmad

Solicitors for the Respondent: Nadeem Lawyers

ORDERS

1. The Applicant is refused leave to rely on the following affidavits:

   (a)The affidavit of the Applicant affirmed on 29 October 2014;

   (b)The affidavit of Y affirmed on 29 October 2014; and

   (c)The affidavit of X affirmed on 29 October 2014.

2. The Respondent is refused leave to rely on his affidavit affirmed on 30 October 2014.

3. The Applicant is declared to be the sole owner of unregistered Mitsubishi (omitted) truck (omitted) currently in the possession of the Respondent.

4. The Respondent must deliver up to the Applicant the said Mitsubishi (omitted) truck referred to in Order (3) above within seven (7) days of this Order.

5. The Application in a Case filed on 10 October 2014 is otherwise dismissed.

6. The parties are to pay their own costs.

IT IS NOTED that publication of this judgment under the pseudonym Holland & Holland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4984 of 2014

MS HOLLAND

Applicant

And

MR HOLLAND

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the wife for spousal maintenance commenced by an Application in a Case filed on 10^th October 2014. It also appears to be an Application for interim property orders. The Application is opposed by the Respondent Husband, by means of his Response to an Application in a Case filed on 30^th October 2014, in which he seeks that the Application in a Case should be dismissed.  

Orders Sought

1. The Applicant seeks the following orders:

   1. That the Respondent make payment to the Applicant of the sum of $5000.00 within 7 days of the granting of this order as an interim maintenance payment;

   2. That the Respondent make payment to the Applicant of the sum of $5000.00 within 7 days of the granting of this order as an interim contribution towards the Applicant’s costs;

   3. That the above payments be made into the Applicant’s solicitor’s trust account with details (not published);

   4. That the Respondent deliver up to the Applicant the Mitsubishi (omitted) truck with VIN: (not published) within 7 days of the granting of this order.

2. The Respondent, by his Response to an Application in a Case, seeks this order:

   Orders 1 to 4 of the Application in a Case filed on 9 October 2014[1] by the Applicant pursuant to Section 77 of the Family Law Act 1975 (Cth) be dismissed.

   [1] sic

Procedural History

1. The conduct of the litigation by the parties’ solicitors has been less than satisfactory, to say the least.

2. The Applicant originally commenced proceedings on 11^th August 2014 by filing the following documents:

   a)an Initiating Application seeking final property orders and interim procedural orders and what appears to be either an interim property order or an interim spousal maintenance order:

   That the Respondent pay to the Applicant the sum of $10,000.00 within 14 days of these orders to enable her to set up a stable home and living arrangements

   b)curiously, a Notice of Child Abuse or Family Violence[2];

   c)a Financial Statement; and

   d)an affidavit by the Applicant sworn on 4^th August 2014.

   [2] No order is sought under Part VII of the Family Law Act 1975

3. The Application was originally returnable on 3^rd November 2014.

4. The Applicant filed an affidavit of service on 20^th August in which the process server deposed that the Application and supporting documents were served on the Respondent on 18^th August 2014.

5. The Applicant’s solicitors, claiming that there was an urgent need for maintenance for their client, sought that the Application should be listed on 10^th September 2014.

6. The Court agreed to this request, noting that the Respondent had been served but had filed no documents whatsoever.

7. On 10^th September 2014 the Applicant was represented by her solicitor and the Respondent was represented by counsel. The parties entered into interim Consent Orders providing, relevantly, that the Respondent should pay to the Applicant the sum of $2,000.00 within seven days. They also agreed that the Respondent should file a Notice of Appearance[3] by 12^th September and a Response and a Financial Statement within 14 days.

   [3] sic

8. The Respondent’s solicitors filed a Notice of Address for Service on 11^th September 2014. The Application was adjourned to 21^st October for further mention.

9. On 10^th October 2014 the Applicant filed her Application in a Case.  

10. The Application in a Case was supported by an affidavit of the Applicant affirmed on 9^th October 2014. The Application in a Case was made returnable on 21^st October 2014.

11. On that date, the Applicant was represented by her solicitor, who told the Court that the Application was being made in circumstances of urgency.

12. The Respondent was represented by counsel. It was noteworthy that the Respondent had not filed anything apart from his Notice of Address for Service, despite:

    a)the requirement in Rule 4.03 that a Response should be filed and served within 14 days of service of the Application to which it relates; and

    b)the Respondent’s consent to an Order on 10 September that he file and serve a Response and a Financial Statement within 14 days.

13. No excuse was offered for this tardiness on the part of the Respondent or his solicitors. The Applicant’s solicitor sought an early date for hearing his client’s application for urgent maintenance and 31^st October was allocated, some ten days later. This necessitated Orders as follows:

    1. The Respondent is to file and serve a Response, Affidavit and Financial Statement within seven (7) days.

    2. The Respondent is to file and serve a Response to an Application in a case, affidavit within seven (7) days.

14. The Respondent did in fact file a Response to the substantive Application, an affidavit and a Financial Statement within the 7 days specified by the Court, on 28^th October 2014.

15. The Applicant promptly filed three affidavits in reply to the Father’s affidavit. Those affidavits are:

    a)an affidavit by the Applicant affirmed on 29^th October 2014;

    b)an affidavit by the parties’ son Y (an adult born on (omitted) 1993) affirmed on 29^th October 2014; and

    c)an affidavit by the parties’ daughter X (an adult born on (omitted) 1995) affirmed on 29^th October 2014.

16. The Applicant did not seek or obtain the leave of the Court to file those affidavits.

17. The Respondent then filed the following documents on 30^th October 2014:

    a)his Response to the Application in a Case; and

    b)an affidavit affirmed by the Respondent on 30^th October 2014.

18. Suffice it to say that both of those documents were filed out of time and, in fact, one day prior to the hearing.

19. The conduct of the parties in these proceedings has been unsatisfactory. The Respondent has been dilatory in the filing of documents, which have been consistently late. The Applicant has chosen to adopt the practice consistently deplored by Judges of this Court in filing affidavits seeking to reply to the other parties’ affidavits and without the leave of the Court.

20. It is well established in this Registry that, in interim hearings, parties should rely on one affidavit for each witness, not to exceed ten pages of text.

21. It is also well established that the Court does not take kindly to affidavits being filed late, particularly on the eve of the hearing. Mr Ahmad of Counsel, doing his best with the brief that had been handed to him, took objection to the Applicant’s material that had been filed only the day before, saying that it would be unfair to the Respondent to allow the Applicant to rely on that material. He said that the Respondent had been deprived of the opportunity to deal with matters put by the Applicant only the day before.

22. It is, of course, the fact that the Respondent has been consistently late in filing his material, including his Response to an Application in A Case and supporting affidavit. The old aphorism of “the pot calling the kettle black” appears to apply in this case.

Affidavits filed out of time or without leave

1. I am not satisfied that the parties should be allowed to rely on affidavits filed out of time or without leave of the Court.

2. Consequently, the Applicant is refused leave to read the following affidavits:

   a)her affidavit affirmed on 29^th October 2014;

   b)the affidavit of Y affirmed on 29^th October 2014; and

   c)the affidavit of X affirmed on 29^th October 2014.

3. It follows that the Respondent will be refused leave to rely on his affidavit affirmed and filed on 30^th October 2014, as it is also out of time.

Evidence and Submissions

1. As a result of the decision not to allow the Applicant to rely on the affidavits affirmed on 29^th October 2014 and filed the next day, the Applicant’s evidence consists of:

   a)her affidavit of 9^th October 2014 in support of her Application in a Case;

   b)her original affidavit of 4^th August 2014 filed in support of her Initiating Application; and

   c)her Financial Statement filed on 11^th August 2014.

2. Whilst the Applicant’s affidavit of 9^th October should have been set out in sufficient detail, whilst still being kept to ten pages of text, so as to form her only affidavit in support of this Application in a Case, it is relatively sparse and refers to her earlier affidavit of 4^th August 2014. If nothing else, the earlier affidavit gives some context to the Applicant’s evidence in support of her Application in a Case, although much of it is not directly relevant.

3. The Applicant has filed only the one Financial Statement and she should be allowed to rely upon that document.

4. The Applicant sets out on page 2 of her affidavit of 9^th October 2014 some brief facts relating to her application for urgent maintenance. Essentially, she states that:

   a)She is unemployed and her only income is from Centrelink payments in the sum of $1650.00 per fortnight;

   b)She lives in rented accommodation provided by NSW Housing;

   c)She continues to have the care of all six of the parties’ children;

   d)She requires an interim payment in respect of her legal fees;

   e)The Respondent has a Mitsubishi (omitted) truck in his possession, which is hers; and

   f)She annexes to her affidavit a copy of a tax invoice from (omitted) Auctions, showing that she purchased the truck for $1,000.00 plus administrative costs on 10^th October 2013.

5. The Applicant’s earlier affidavit was sworn in support of her Application for property orders, but contains a number of relevant matters. It does not entirely accord with her later affidavit.

6. At paragraph [6] of her affidavit of 9^th October 2014, the Applicant deposes:

   I continue to have the care of all 6 of our children.

7. However, the Applicant’s earlier affidavit states at paragraph [6]:

   There are six children of the relationship, 3 of which are over the age of 18 namely Z born (omitted) 1992, Y born (omitted) 1993 and X born (omitted) 1997, and 3 of which are still minors, namely W born (omitted) 1997, V born (omitted) 1999 and U born (omitted) 2009.

8. It is at best misleading for the Applicant to claim that she has “the care” of the parties’ six children when three of them are adults. Subsection 72(1) of the Family Law Act 1975 (Cth) provides at paragraph (a) that a party to a marriage is liable to seek an order for maintenance if he or she is unable to support herself or himself adequately:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

9. The Applicant cannot claim for the purposes of this Application that she has the care of three children who are all adults. I note that the child W, who was born on (omitted) 1997, has now attained the age of 18 years, also.

10. The Respondent, in his affidavit of 27^th October 2014, stated that the parties’ daughter W, then aged 17, had completed her Higher School Certificate and was working at (employer omitted). He gave no details of her employment, as to whether it was full-time, part-time or casual.

11. The Respondent deposed to various health problems, including “chronic back, shoulder, knee and wrist pain”[4] and claims that he is now unable to work. He says that he has been on a disability support pension since late 2009 or early 2010.

    [4] Affidavit of Mr Holland 27.10.2014 at paragraph [122]

12. The Respondent claims at paragraph [142] of his affidavit that he and the Applicant have an interest in the former matrimonial home at (omitted), which he estimates to be worth $700,000.00, and a property in (country omitted) of unknown value. He does not claim to own any motor vehicles.

13. The other assets which the Respondent claims to have are a bank account with a balance of between $591.16 and $1,000.00, an interest in the estate of his late father in (country omitted) worth $6,000.00 and household items of $1,500.00.

14. The Respondent claims various debts, including a mortgage balance, credit card debts, personal loans, an amount of $2,539.00 due to the State Debt Recovery Office and $1,900.00 owing to the Australian Taxation Office. 

Submissions

1. The Applicant submits that she is in immediate need of maintenance. Her solicitor refers the Court to a number of decisions in support of the Applicant’s case, notably:

   a)Geston & Geston[5];

   b)Grimshaw-Grieves & Grieves[6];

   c)Malcolm & Malcolm[7];

   d)Chapman & Chapman[8];

   e)Redman & Redman[9];

   f)Gyopar & Gyopar[10]; and

   g)Kowalski & Kowalski.[11]

   [5] [2011] FMCAfam 1418

   [6] [2011] FMCAfam 125

   [7] Annoyingly, the written submission gives an incomplete citation for this decision, which should be (1977) FLC 90-220

   [8] Another incomplete citation but should be (1979) FLC 90-671

   [9] Presumably (1987) FLC 91-805

   [10] Presumably (1986) FLC 91-679

   [11] Presumably (1993) FLC 92-342

2. It does not assist the Court to consider the authorities referred to by a practitioner when incomplete citations are given.

3. It is submitted that the Respondent’s affidavit shows an employment income of an average of $100.00 per week. However, and these figures are conceded by the Respondent, the Respondent’s income tax returns show an income of only $56.00 for the 2014 tax year and no income at all for the 2012 and 2013 tax years.

4. However, the submission goes on to refer to the affidavits of the Applicant’s adult children, both of which have been rejected.

5. The Applicant seeks an order of a lump sum of $5000.00 to assist in defraying anticipated legal costs. The submission refers to the decisions of the Full Court of the Family Court in Strahan & Strahan (Interim Property Orders)[12]  and of the late Cohen J in Celestin & Celestin[13], where his Honour made an order for interim costs on an application form urgent maintenance under s. 77 of the Family Law Act 1975.

   [12] [2009] FamCAFC 166

   [13] [2011] FamCA 74

6. The Applicant’s solicitor submits, with some justification, that it appears to be common ground that the Mitsubishi truck is the property of the Applicant and that it should therefore be delivered up to her. He went on to submit that the alternative view would be that the truck is a joint asset which could be sold so that the proceeds should go to the Applicant by way of maintenance.

7. I am not persuaded as to the correctness of the latter proposition.

8. Counsel for the Respondent, Mr Ahmad, submitted that the Applicant had not demonstrated an immediate and dire need of urgent maintenance. He went on to submit that the Application should not, therefore, be dealt with in a summary way on the basis of the limited evidence, referring to the decision of his Honour Judge Brown in Moloney & Beams[14].

   [14] [2013] FCCA 85

9. Mr Ahmad submitted that:

   Ultimately this is not a case of extreme financial urgency, or financial urgency. The Applicant wife is still receiving a level of income that on her own evidence was sufficient to meet the household expenses.[15]

   [15] Respondent’s Written submission, page 4 at [5.6]

Conclusions

1. The Applicant’s substantive application is for property settlement, in which it appears that she will be making some sort of a Kennon[16] claim. That application will presumably take several days to hear, which means that it will not be allocated a date for final hearing until well into 2016.

   [16] Kennon & Kennon (1997) 22 Fam LR 1; FLC 92-757

2. The current application for urgent spousal maintenance appears to be bound to fail, as I am not persuaded that the Applicant has shown the requisite immediate need for financial assistance. It was somewhat surprising that the Applicant delayed as long as she did in seeking spousal maintenance, if her need was as urgent as she claimed. The evidence does not show any fund in the hands of or under the control of the Respondent from which the lump sum of $5,000.00 can be paid.

3. The Applicant also seeks a lump sum of $5,000.00 to help defray her anticipated legal costs. Whilst the amount claimed is a relatively modest amount, there is no evidence as to how those costs have been calculated. The lump sum of $5,000.00 appears to have been “plucked out of the air”, so to speak.

4. Again, and fatally to the Applicant’s claim, in my view, is the absence of evidence of any fund from which the sum of $5,000.00 could be drawn[17]. Consequently, this claim must fail.

   [17] See Gylseth & Bates [2010] FMCAfam 794

5. The final matter for consideration is the Mitsubishi (omitted), which the Applicant claims is her property. The Applicant has provided convincing evidence of her purchase of the vehicle, and the Respondent appears to concede her ownership of that vehicle, in paragraphs [109] and [142] of his affidavit. Why, then, has he not delivered the vehicle back to her?

1. In my view, the proper way of dealing with this asset is to make a declaration under s.78 of the Family Law Act 1975. The Respondent should make this vehicle available within seven days.

Costs

1. I am firmly of the view that this is not a matter where either party has established a claim for an order for costs in their favour. Neither party has been wholly unsuccessful in the proceedings. Moreover, the conduct of the parties to the proceedings in relation to the proceedings has been the subject of some criticism in this decision, which does not reflect well on their lawyers. I specifically exclude Counsel for the Respondent, Mr Ahmad, from this criticism, as it appears to me that he did as best as he could with the material in his brief.

2. The parties should pay their own costs.

The Substantive Application

1. The property application will be listed for final hearing, although the Court’s heavy workload means that the hearing will not take place until well into next year. Noting the nature of the evidence in the parties’ affidavits, it would appear that the best advice that the parties’ lawyers could give their clients would be to take steps to settle the property proceedings on just and equitable terms as soon as possible.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  11 May 2015