IRVINE & IRVINE (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

IRVINE & IRVINE (No.2)

[2013] FCCA 1076

Catchwords:
FAMILY LAW – Parenting dispute and property dispute – respondent husband refusing to accept jurisdiction of the Court – husband asserting dispute wholly governed by (religion omitted) – husband refusing to participate in proceeding – matter proceeding on essentially undefended basis – orders made as sought by applicant wife.

Legislation:

Family Law Act 1975 (Cth), s.60CC(2)

Chang v Su (2002) FLC 93-117

Applicant:

MS IRVINE

Respondent:

MR IRVINE

File Number:

MLC 1429 of 2013

Judgment of:

Judge Burchardt

Hearing date:

14 June 2013

Date of Last Submission:

1 August 2013

Delivered at:

Melbourne

Delivered on:

27 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr R. Wijesinha

Solicitors for the Applicant:

D & M Lawyers

The Respondent:

In person

ORDERS

The interim parenting orders made on 22 May 2013 stand as final orders save that:
(a)the mother have sole parental responsibility save for X;
(b)The child X shall live with the father and the father shall have sole parental responsibility for him.
The respondent do all acts and things including signing any necessary documents to transfer to the applicant his right, title and interest in:
(a)Toyota being registration number (omitted);
(b)Taxi License number (omitted).
If the husband refuses or neglects to sign any document necessary to implement these orders within 14 days of a request to do so, pursuant to s.106A of the Family Law Act 1975, the Registrar of the Federal Circuit Court of Australia is hereby appointed to execute all documents in the name of the husband and do all acts and things necessary to give validity and operation of such documents so as to effect the transfer to the wife.
Unless otherwise specified in these orders, each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at this time.

IT IS NOTED that publication of this judgment under the pseudonym Irvine & Irvine (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 1429 of 2013

MS IRVINE

Applicant

And

MR IRVINE

Respondent

REASONS FOR JUDGMENT

This is a wholly extraordinary case. I hope I never have another like it. For reasons which I hope will become apparent, it has been a proceeding almost impossible properly to control, essentially because of the position adopted by the respondent husband, a position unique in my experience on the Court.
In order to understand the nature of the controversy that the case raises it is necessary to detail at length the nature of the documents filed and the matters that have transpired before the Court.
On 27 February 2013 the wife filed an Application for Divorce. The Application was, as is required, a document affirmed before an authorised person, in this instance, a lawyer.
The application asserted that the applicant wife was born on

(omitted) 1967 in (country omitted) and had lived in Australia since (omitted) 1970. It affirmed that the husband was born on (omitted) 1964 also in (country omitted) and had started living in Australia on (omitted) 1989.
The application gave the applicant wife’s address in (omitted), Victoria and that of the husband as an address in (country omitted).
Jurisdiction was asserted on the basis that the wife regarded Australia as her home and intended to live here indefinitely, that she was an Australian citizen by grant of citizenship and that she had ordinarily lived in Australia for twelve months immediately before filing the application. The application further revealed that the husband did not regard Australia as his home, was an Australian citizen by grant of citizenship but had not lived in Australia for the previous twelve months.
The application deposed that the date of marriage was (omitted) 1988 and the date of separation, 15 October 2009. The application deposed that the parties had lived together for various periods but not as husband and wife since formal separation. The last asserted date of such non-spousal cohabitation was 3 February 2010.
The application deposed to the existence of four children under the age of 18, X born (omitted) 1996, Y born (omitted) 1998, Z born (omitted) 2001 and W born (omitted) 2003. The required details in relation to the children’s circumstances were all filled out and it was deposed that all of the children lived with their mother and communicated with their father on an occasional basis by telephone and Skype. The application deposed that the father provided no financial support to the children.
Subpoenas were issued by the solicitors for the wife on 22 March 2013 to Customer Relations Group – Subpoena Management Unit both in Melbourne and Sydney. These were directed clearly to identifying ownership on the part of the husband of a vehicle bearing a Taxi License, number (omitted) and a car registered as (omitted).
On 22 March 2013, the wife filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence form. This asserted an assault by the husband on the wife in January 2010. It also asserted that in January 2012, a further daughter, U, had been threatened by the father in (country omitted) by pointing a knife to her neck and had had her Australian passport destroyed.
On the same day, the wife filed an Initiating Application seeking equal shared parental responsibility and that the children live with her.
The applicant wife also sought that the husband transfer to her 70 per cent of the shares he presently held with (omitted) and that the pool of divisible assets be divided as to 70 per cent to the wife and 30 per cent to the husband, together with periodical spousal maintenance and that the wife retain the chattels in her possession.
The wife’s Affidavit filed on 22 March 2013 deposed to the age of the parties and their marriage. The wife deposed that she had been the primary carer for the children and that the respondent was overseas most of the time. She deposed that she paid all household expenses and attended to the upbringing of the children. She alleged that the husband verbally, psychologically and financially abused her and used all his earnings for himself and bought properties in (country omitted) and in (country omitted).
The wife deposed to the birth of all her children (there are three presently adult children). The youngest of these, V, born (omitted) 1994 was the only one then living with his mother and the other siblings the subject of the application. The mother deposed that the husband had surgery in July 2006 for “a life threatening ailment” and thereafter their relationship had soured.
The affidavit repeated the allegations made in the Notice of Child Abuse. The wife further deposed that the husband had threatened to take the children to (country omitted) and not return and that the husband had no other family in Australia. The affidavit deposed that this was why she was seeking a Watch List order and passport alert.
The wife deposed to the matrimonial property pool and said that this consisted of:
a)Shares in (omitted);
b)Taxi license operating through Victoria Taxi Directorate;
c)One motor vehicle;
d)(omitted) (not particularised);
e)Money in bank;
f)Household goods;
g)Wife’s gold.
The wife deposed that the husband was a Taxi license holder and she had contributed to the purchase of the license and a Toyota bearing registration number (omitted).
The affidavit deposed that the husband had leased out the vehicle to Mr A but that she had never been given any share of the income. The wife exhibited, as exhibit MI-1, a copy of the Agreement whereby the taxi had been leased.
The wife deposed that she was compelled to transfer her shares of (omitted) to the husband and his mother in 2008. She deposed that she was liable for a school fee debt amounting to about $18,000. She further deposed that all her income from Centrelink is applied to the benefit of the family while the husband had used his money to buy properties overseas. She deposed that the husband was scheduled to arrive in Melbourne on 21 March 2013.
Finally, the wife deposed to performing volunteer work at (omitted) College, that she was in good health and well capable of attending to the needs of the children. She deposed as to support from her extended family.
The wife’s Financial Statement filed on 22 March 2013 disclosed an average weekly income of $951 and expenditure of $1,423. The items set out in Part N of the Financial Statement are unremarkable given the number of children she has in her care. The Statement in Part G also showed rent of what was clearly the property in which the mother lived at $320 per week. The wife is in possession of a Toyota (omitted) with an estimated value of $4,000. The other matters deposed to were of no moment.
On 11 April 2013, a Divorce Order was made in standard terms by a Registrar of the Court. Shortly before that hearing, the wife had filed an Application in a Case seeking dispensation from service. That application was supported by an Affidavit filed at the same time dated 11 April 2013. Relevantly it deposed that the last time the husband saw his children under the age of 18 in Australia was about December 2011. While the matters set out in part repeat matters I have already detailed above, the essence of the affidavit was that she had been unable to serve the respondent. I note that at paragraph 27, the wife deposed:
“I believe that the Respondent Husband may be avoiding service because he does not believe that under (religion omitted) I have grounds to seek a divorce.”
The respondent husband was served with the Initiating Application and supporting documents on 26 March 2013 (or possibly 26 April 2013, the Affidavit of Service is by no means clear) by the applicant’s solicitor. On 22 May 2013 the matter returned before the Court.
The transcript of that extraordinary proceeding is on the Court file and it speaks for itself. There are a number of matters I point to as being of present relevance. First of all, Mr Irvine stated in the clearest of terms that the Court did not have jurisdiction to entertain the applications before it. This was because, as he put it, his marriage was governed by a contract entered into pursuant to (religion omitted), and it was not open to this Court to interfere with it. A copy of what purported to be the contract, written in (language omitted), was tendered. It will be noted that the husband repeatedly refused to answer very straightforward direct questions put to him, such as whether he was an Australian citizen or not. It should also be noted that the purport of the wife’s claim was explained to him both in regards to children’s and property matters. It should be noted that the 16 year old son, X, had to be removed from Court and affidavits which the husband sought to file by him and his younger brother, Y, were also refused for filing.
I did, however, permit Mr Irvine to file an affidavit of his own dated 22 May 2013, together with affidavits from two of his older children. The affidavit filed by Mr Irvine asserts at paragraph 7 that:
“he holds firmly to the fact that his religious beliefs, customs and practices are absolute perfect, sacred and honoured”. He also asserted at paragraph 8: “no other belief, laws or way of life and practices may be regarded as applicable, nor equal or superior and may not be allowed to go or act contrary to, violate or contravene the Commandments and Orders of (omitted)”.
The affidavit went on to say at paragraph 11:
“(religion omitted) must be governed at all times and in all circumstances & conditions, only in accordance with (religion omitted) as a mandatory basis of our religious faith and belief”.
At paragraph 14, the affidavit states:
“(religion omitted) is the only form of law that may be applicable for the conduct, governing and jurisdiction of a (omitted), what is generally termed as a “(omitted)” (marital) relationship between (religion omitted). The official power to make lawful and legal decisions, judgments and the extent of this power, is explicitly limited to the parties who are contractually bound to its terms and conditions in (religion omitted)”.
Paragraph 19 of the affidavit relevantly says:
“… The sole “Parties” to a contract in (omitted) are the (religion omitted) man and (religion omitted) woman only and no third party or entity of any type is a party to any (omitted) contract. Any party wishing to interfere outside is deemed as absent jurisdiction, a third party interloper and any court magistrate or parties acting in such regard commits a tort. …”
It is sufficient to say that the affidavit goes on to traverse in a number of ways the assertion that this Court (or indeed any other Court) cannot and should not interfere in any way whatever with the arrangements made by the parties pursuant to their contract entered into under (religion omitted). The affidavit also asserts at paragraph 27 that:
“… only the man (omitted) (husband) holds the right of decision and is held responsible for whatever (omitted) (prohibited) behaviour that a (omitted) (wife) and children resulting may become involved in during the (omitted) (marriage).”
The matter is perhaps ultimately put most clearly at paragraphs 39 and 40 of the affidavit where it states:
“39. Affiant and Aggrieved Party has every reason to and sincerely believes that the Family Law and Federal Magistrates Courts of Australia, to include all other such tribunals, agencies and/or instrumentalities DO NOT HAVE JURISDICTION IN THE SUBJECT MATTER, IN PROCEEDING with respect to the Affiant and Aggrieved Party and upon prior notice, in any action to proceed a tort is committed.
40. Given the above circumstances and failure to cure, a deliberate, intentional and malicious pattern of intentional violation of rights, discrimination, unfair treatment and abuse, may be termed to have caused injury, damages, harm and losses to the Affiant and Aggrieved Party, his family members, his religion, unalienable rights, reputation and standing, therefore any said actions is to be made null and void, dismissed with prejudice and all application(s) made for any action outside the scope of (religion omitted).”
The affidavits from the two adult children that the Court has received do no more than express general support for their father.
I gave Reasons for Judgment in dealing with the initial objection to jurisdiction in the running of the proceeding of which an unedited copy remains on the Court file. If the matter proceeds in another place I will edit those Reasons from transcript. Although I purported at the time to express the children’s orders as final orders it will be seen from the orders made pursuant to the slip rule that these were only interim. I did however adjourn the matter for a week and it should be noted that I advised the husband in the clearest terms not only of what the wife’s application was but also that he should seek legal representation and advice.
It will also be noted that I observed that it would be open to the husband to press upon the Court as clearly relevant considerations, any matters arising out of the fact that his marriage had been entered into pursuant to (religion omitted) at the final hearing of the matter.
On 28 May 2013 the wife filed a further affidavit. This was in anticipation of the posited resumed hearing on 29 May 2013, which I had already said on 22 May 2013 would have to proceed undefended given Mr Irvine’s refusal to participate in a proper way in the proceeding. The affidavit repeated assertions as to the ownership of the Taxi licence and annexed documentation which establishes prima facie that the husband is the owner of a Taxi licence in respect of vehicle (omitted). The wife also annexed what purports to be a written agreement between the husband and a person who leases his taxi. The fee for the lease is expressed as $800 per month and is dated 1 July 2005.
The wife also exhibited material showing ownership of 72,600 shares in (omitted) apparently owned by Ms M, who is said to be the husband’s mother. The husband’s mother has an address in (omitted) which runs somewhat contrary to the wife’s assertion that the husband has no other family in Australia.
The wife’s affidavit attested to the school fees debt previously mentioned and that she does volunteer work to offset the debt of which she had paid off $10,000. The wife deposed that she believed the husband earned approximately $2,300 per month from the lease of his Taxi.
The wife further asserted that the husband had diverted all his money out of Australia to buy properties in (country omitted) and the (country omitted).
The wife went on to depose that the two older children (it seems clear from the evidence that this is V and X) vandalised her rented property the previous week. She accused the husband of instigating them to do so. The other matters attested are not of any present moment.
Once again the proceeding was an extraordinary one. Mr Irvine declined to say whether he appeared for himself. He said “I’m just – simply here regarding the matter”. He sought to present documents to the Court and his under age child, X again had to be expelled.
The husband purported to say that he did not understand the proceedings. Nonetheless, it should be noted that his command of English is excellent and he is an educated man. According to his own remarks he is an (omitted) by profession who has worked inter alia for (omitted). I note that transcript p-2, I made it clear to the husband that his position was inherently contradictory. I said:
“You say you are just here but you are not appearing before the Court. You either have to participate properly in the Court’s procedures, or not. You can’t really have it both ways.”
The transcript p-3 I said:
“You have told me you do not recognise the court’s jurisdiction and that you will refuse to, in any way, cooperate in the court’s procedures, and I have told you – as I did last time – that that means that the matter will have to proceed on an undefended basis, because there’s nothing else I can do. I would urge you to participate in the proceeding, but if you refuse to do so then I will have to accept that refusal.”
The husband purported to express a lack of understanding as to what was happening both on the day and previously. I should record that while such matters must be approached with caution, everything Mr Irvine did and the way that he did it suggests to me that he is a highly intelligent man who is engaged in an extensive filibuster with a view to enforcing his basic position that the Court does not have jurisdiction. Inter alia the husband sought provision of transcript of the previous proceeding.
At transcript p-5 the husband said:
“I need to look at (the transcript) because of my profession, I read and I have more comprehension when I read.”
On the same page I said to counsel for the applicant:
“What I’m minded to do – bearing in mind that, as I now understand his position, Mr Irvine is indicating a preparedness to consider participating in the proceeding, subject to the receipt of the transcript and advice ---
Is to provide him with the transcript, when it’s available. I would provide a copy for your side as well, and adjourn the matter for a relatively short while to enable Mr Irvine to consider his position.”
At transcript p-7 I said:
“Mr Irvine, I’m going to make the transcript available to you. I’m going to give you two weeks to consider your position, and I will have expected to have consulted a lawyer and be in a position to proceed next time. Okay. You think about what you want to do. I will give you the transcript: you have asked for it. And I will bring the matter back in a fortnight’s time to consider how we proceed. That’s all I can do. Mr Wjesinha, it’s not a satisfactory situation, but Mr Irvine appears to be suggesting that if I provide the transcript, then once he says he can understand the proceeding to the extent he says he can’t – bearing in mind that his English seems to me to be extremely fluent – we may be in the position to proceed. I want to proceed into parties if I possibly can, as you will appreciate. Proceeding on an undefended basis is manifestly unsatisfactory if it can be avoided. It would be better.”

It should be noted that following further exchanges, during which the husband purported to continue to say that he did not understand the proceeding, I said at p-9:
“So what you need to understand, Mr Irvine, is this; if you really do not understand what is going on you must read the transcript. I would strongly recommend that you seek advice, that you get representation. It’s in your interests to do so, but this is the opportunity you’re getting to do so. This matter is going to proceed in some fashion or another on the next occasion. It won’t be adjourned off – on your request that – if it’s for the character that you’ve made so far.”
I went on to say later on that page:
“And I will see you on the 14^th by when, Mr Irvine, you must make up your mind if you are going to participate in this proceeding or not.”
The husband filed another affidavit in Court on 29 May 2013. Relevantly, it sought transcript and asserted that Mr Irvine had not understood the proceedings. I note that it commenced:
“I, appearing as, Mr Irvine, by special visitation and not appearing generally before this honourable court …”
The affidavit, in part, is unintelligible but in any event adds nothing further.
The matter returned to Court for mention as foreshadowed on 14 June 2013. The matter was called after 9.30 am because the husband was not present. In the circumstances I proceeded to hear the matter on an undefended basis. It appears that counsel for the applicant may not have fully understood my intentions. He mentioned a conciliation conference, but I made it clear that I did not think that the circumstances of the case required the expenditure of further public time and money in a continuation of the proceeding. I indicated that I would hear and determine the matter on the morning.
I asked the applicant’s counsel what orders he was seeking and he indicated that he was seeking $300 per week in spousal maintenance. I asked counsel how the husband would pay this figure and the wife interjected from the back of the Court. In the circumstances, I caused her to be sworn and took her evidence.
The wife confirmed that she is a (occupation omitted) presently living with her parents. She was left with $18,000 debt to the (omitted) College by the husband’s departure which she is paying off. She deposed that the husband has a taxi licence plate and at least two drivers with whom she had personally dealt. She deposed moneys from this enterprise are, to her knowledge, deposited into the husband’s bank and transferred overseas. She deposed that the drivers pay the husband $2,300 per month, her knowledge of this figure coming directly from what the husband had told her. Although it is plainly hearsay it is an admission against interest which, in my opinion, is admissible in these circumstances.
The wife deposed that her shares were transferred at the husband’s behest in 2010 into the husband’s mother’s name and are now worth $7,000 approximately.
The wife deposed that the husband owned two flats in (country omitted) and two properties in the (country omitted).
The wife went on to say that she was being terrorised by the two elder children, V and X. In response to a query from the bench she confirmed that she wanted those children to live with the father. I indicated that I would make an order that X live with his father but that Intervention Order proceedings would be the appropriate way to proceed against her adult son.
I thereafter reserved my decision.
After 10 o’clock Mr Irvine appeared before the Court. He apologised for being late although the reasons he gave for being late were scarcely compelling. In the circumstances, I allowed Mr Irvine to make submissions. He filed by leave of the Court two further documents. One is an affidavit of the husband. Relevantly, the affidavit purports in part to be a translation of exhibit R1 (the original asserted marriage contract). The affidavit asserts that the document constitutes a binding financial agreement. He referred to and annexed an extract from the transcript on 22 May 2013 when I had said inter alia:
“The contract doesn’t oust the court’s jurisdiction unless it’s a binding financial agreement.”
The affidavit asserts that the marriage contract is such an agreement.
The husband also filed a letter addressed to myself. It continues to deny the jurisdiction of the Court, but it is in many ways very difficult to follow. There is a reference to the Court being appointed as a fiduciary. The letter goes on to say that the husband should be allowed six months to obtain competent counsel who is a practitioner versed in (religion omitted), to make emergency travel to (country omitted) to care for his elderly mother and certain other ancillary orders, at least one of which is incomprehensible.
Mr Irvine also sought to pass the Court a document which was marked on the outside with words to the effect that it should only be read by me. I pointed out to Mr Irvine that this was not possible because it would have to be shown to Mr Wijesinha and he agreed that that be so.
I read the document which purported on its face, as I understood it, (it was by no means easily intelligible) to appoint me as Mr Irvine’s fiduciary. I declined to accept the document and returned it to Mr Irvine. It was plainly an improper document to be sought to be filed. Clearly the Court is not in a position to accept a document purporting on its face to appoint the Court in some fiduciary role. This is all the more clearly obvious in the case in circumstances where the letter to which I have referred was clearly seeking to access the jurisdiction while at the time conceivably grudgingly accepting it in some kind of “fiduciary” way. It is immediately apparent that such a proposal is not properly entertainable.
In circumstances where the material before the Court is so inadequate the Court obviously faces significant forensic challenge. The wife’s Initiating Application seeks an order for joint parental responsibility. In my view joint parental responsibility is not indicated in this instance. The reality is that the child, X is clearly closely aligned with his father and will live with him from now on. The wife has been the sole carer of these children for many years and the husband, on the wife’s uncontradicted evidence (indeed the husband’s various observations only tended to confirm it) has lived in (country omitted) for the vast majority of the time for many years.
Clearly the wife should have sole parental responsibility for the children other than X. It is in their best interests that this be so, particularly in circumstances where the wife’s evidence, which I accept, is that the husband is seeking to undermine her authority with the children and indeed is seeking to coerce her to return into the marital relationship in part through using the children as his agents.
It is quite apparent from the materials that the husband has filed that it is his view that the wife, under (religion omitted), has no capacity or entitlement to make any decisions, although she is required to be consulted. I indicated on 22 May 2013 that it would be appropriate to give (religion omitted) such consideration as is appropriate in considering the children’s best interests in the final trial. As things have turned out the only emphasis given by the husband to (religion omitted) has been his essential proposition that this Court should not inter-meddle in the matter at all.
It is quite impossible to evaluate the force and effect that should be given to the (religion omitted) background of the parties given the paucity of evidence in this case. I do not purport to make any findings about this important matter because the husband has put no material before the Court.
I should make it plain that I have declined Mr Irvine’s request for a six month adjournment to get legal representation. The husband’s position has been one which I would clearly characterise as being a filibuster designed to defeat the Court’s processes. Given that he has sworn that it is against his religion to acknowledge the authority of the Court, I simply do not believe his assertions that he would in any way cooperate with the Court’s processes. The matter, in my view, in these wholly extraordinary circumstances should be dealt with in the relatively pre-emptory way in which I am dealing with it.
The presumption as to equal shared parental responsibility being clearly not in the children’s best interests, it is a matter of making orders in the children’s best interests by reference to the matters contained in s.60CC(2) of the Family Law Act 1975 (Cth) (“the Act”).
In the extraordinary circumstances of this case, nonetheless, not all the matters the Court ordinarily would be required to consider are susceptible of ready analysis.
In a general way it is plainly desirable that the children have the benefits of a meaningful relationship with each of their parents. However, the wife’s evidence, which I find compelling in all the circumstances, is that the husband has already succeeded in alienating the children in age order down to and including X and is no doubt actively seeking to suborn the rest. In these circumstances, and given that the mother has clearly been the primary carer of all these children all their lives, it is not in their best interests that they be compelled to spend substantial time with their father save to the extent that the wife is prepared to agree to it. Her evidence is that she is doing her best to look after the younger children in the face of conduct by V and X (who are clearly the father’s agents) that is designed merely to force the wife to submit to the role that the husband feels she ought to play.
It is not, in my view, in their best interests that this outcome be fomented against the wife’s will as it clearly is.
Although clearly there are other things to be said about the children’s relationship with other parties including the wife’s extended family, I do not feel that this case requires more to be said than I have just said. It is a wholly extraordinary case turning on wholly extraordinary facts. The conclusion I reach is that the interim orders made on 22 May 2013 (subject to the slip rule) are clearly in the children’s best interests. The nature of the orders speaks for themselves so far as the ancillary orders are concerned.

Property issues

Here it is plainly appropriate to make an order altering the parties’ property interests. The relationship has broken down. A divorce has been ordered. The applicant wife is clearly entitled to some adjustment if it can practically be done.
The parties were married on (omitted) 1988 and separated in 2010. They have eight children of whom the wife was the primary carer at all times. On the wife’s evidence, which is all the evidence I have, it is clear that the husband kept all the earnings from his business to himself, although he must have given the wife some support from time to time to bring up so large a family. It is not clear, however, whether the wife has done this at all times with the benefit of statutory benefits, which with so large a number of children, must from time to time have been relatively considerable.
The parties’ interests in Australia appear to consist of the taxi and its licence together with the wife’s car and chattels.
Although the wife has sought in effect the return to her of the $7,000 worth of shares she says she was compelled to transfer to the husband’s mother, the husband’s mother has not been joined as a party to the proceeding nor otherwise heard. I am not in a position to, as it were, re-include these shares in the pool.
The wife says and I accept that the husband has properties overseas, and I note that his description of his employment suggests that he is a comparatively wealthy person.
In my view, it is clearly appropriate to make an order transferring the ownership of the taxi licence and plate to the wife. The husband has four properties, at least, overseas. The value of the plate and the car is not in any sense certain, but it seems to me that the provision of this vehicle to the wife is the best that the Court can do in these circumstances to produce an appropriate outcome.
The wife should retain her car and any chattels in her possession. There is nothing the Court can do to value the husband’s assets. This is a case of the sort identified in the case of Chang v Su (2002) FLC 93-117. The Court has been deprived of any meaningful knowledge of the husband’s assets and possessions by virtue of his own adamantine refusal to participate in the proceeding. The Court should take a robust approach, and I have done so. The result, in my view, is eminently just and equitable.
In circumstances where I propose to make an order of this character, the order for spousal maintenance that the wife seeks of some $300 per week does not require to be considered further. In my view, the order transferring the taxi plate to the wife is eminently appropriate. I note that the wife did not seek in her Initiating Application a transfer of the taxi licence and vehicle in terms. Rather, counsel sought $300 a week in periodic spousal maintenance.
On 26 June 2013 the wife’s solicitor sent an email to the Court indicating:
“It is our understanding that the final judgment of this matter is reserved. Our client is of the view that it will be difficult to obtain any money from the husband as a property settlement even if an order is made in this matter. Accordingly she requests that an order be made for the Husband to sign all documentation necessary to transfer Toyota) bearing registration No. (omitted) and the taxi licence associated with it (Taxi – cab licence Holder and Operator No. (omitted)) to the Wife and failing to sign such document the Registrar of the court be given power to sign such document.”
I caused the matter to be listed for hearing on 1 August 2013 so that the husband could make any submissions he might wish as to whether I should grant leave to the wife to reformulate her claim in this way. The husband not appearing on 1 August 2013, I gave the wife leave to amend her application in the fashion sought.
I note from the file note taken by my associate on 6 August 2013 that the husband appears to have contacted her and indicated that he had only just found out about the hearing on 1 August 2013.
Mr Irvine appears to have informed my associate that he was going to write to the Court a letter and affidavit in relation to the matter but none have been received.
In the circumstances I am satisfied that the husband has had an adequate opportunity to present his case in relation to this aspect of the matter.
I would go further and say that in any event the wife’s application is irresistible. It is readily apparent that the husband would be most unlikely to pay any spousal maintenance given his conduct to date and given the practical difficulties and that fact that he appears to spend a lot of his time overseas.
The orders I make are in the circumstances plainly entirely appropriate.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 27 August 2013

[2013] FCCA 1076

27 August 2013

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Property Law

Legal Concepts

Remedies

Jurisdiction

Injunction

Costs

Res Judicata