JAMES & HATEM

[2015] FamCA 171

FAMILY COURT OF AUSTRALIA

JAMES & HATEM [2015] FamCA 171

FAMILY LAW – FINANCIAL PROCEEDING – injunctions sought to preserve property – husband against whom injunction is sought has no material – balance of convenience – injunction granted – case guardian discussed

APPLICANT: Ms James

RESPONDENT: Mr Hatem

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5459 of 2012

DATE DELIVERED: 4 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 4 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Zeno Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1.The wife have leave to proceed out of time with her application for alteration of property interests pursuant.

2.The final orders sought by the wife in her Initiating Application filed on 27 November 2014 stand for the time as the relief she seeks for alteration of property interests NOTING THAT it will need to be further particularised in due course.

3.Until further order, the husband by himself his servants or agents be restrained by injunction from transferring, disposing, further encumbering any real or personal property in his sole or joint name, or under his control or the control of any company in which he is a registered office holder, save for in the ordinary course of business or the proper provision for himself or the family by way of day to day support.

4.The time for compliance by the husband with paragraph 2 of the Order made on 19 January 2015 be extended to 12.00 noon on 25 February 2015 and contemporaneously therewith the husband and serve any expert evidence or report from his treating psychiatrist or psychologist as to his mental health and as to his ability to conduct these proceedings.

5.Any practitioner who acts for the husband file and serve a Notice of Address for Service promptly.

6.This matter be listed for directions before Registrar Mestrovic on 27 March 2015 at 10.00 am.

7.Subject to any further order of the Court, the parties attend a Case Assessment Conference with Registrar Mestrovic on 7 April 2015 at 9.15 am.

8.The costs of both parties of this day be reserved.

9.There be liberty to the husband to vary or set aside paragraph 3 of this Order or as he may be advised upon him filing the documents which he is required to file pursuant to this Order in an appropriate form.

10.Pending any Notice of Address for Service being filed on behalf of the husband to the contrary his address for service be noted in the records of the Court as B Street, Suburb C, Victoria, … and his telephone number is ….

AND IT IS NOTED BY THE COURT that the wife through her solicitor informed the Court that it is not the wife’s intention to jeopardise the ability of the husband to open a further business in Suburb C and that she seeks, and has obtained, the injunction herein to protect and preserve assets for the purpose of this proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5459 of 2012

Ms James

Applicant

And

Mr Hatem

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This matter comes before me as having been referred by Registrar Mestrovic on 19 January 2015. It is principally the wife’s application for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth), to institute proceedings for alteration of property interests out of time. The date on which she could have proceeded with her property application as of right was September 2013, which is approximately one year and two months prior to when she filed her application on 27 November 2014.

2. I am satisfied from an affidavit of service on the court file that the husband was served with that application, a financial statement and a lengthy affidavit in support on 30 December 2014.  At the end of the application and by application of the rules of court he had seven days prior to the return date in which to file a response.  The return date was expressed to be 19 January 2015.  The husband failed or neglected to file any documents by 12 January 2015.

3. The matter proceeded before Registrar Mestrovic on 19 January 2015 and the husband failed or neglected to attend court on that date.  It was ordered by the learned Registrar that the matter be adjourned to me today.  It was also ordered that the husband had an extended period of time in which to file a response, affidavits upon which he intends to rely and a statement of financial circumstances.  He had until 30 January 2015.  The husband has failed or neglected to comply with that order. 

4. It was ordered that the husband pay the wife’s costs of 19 January 2015, fixed in the sum of $840, although payment was stayed until the next court event (which is today). 

5. There was provision for the parties to be able to reach an agreement in relation to the injunctive relief and to have the matter go to a case assessment conference.  There was provision for that order to be served upon the husband.  I am satisfied that it was duly served because the solicitor for the wife says that they received responsive communication within 24 hours.  The husband does not contradict that he was served.

6. What the husband does say is that he wants to retain a lawyer.  He has at times appeared to be a little upset and distraught but he is still an eloquent man and has spoken sensibly.  He believes that he is in the midst of a depressive episode, that is, that he is suffering from mental illness.  By occupation, the husband is a dentist.  He obviously is not a psychiatrist.  But he is also not someone who is completely un-attuned to mental and physical conditions.

7. The husband is under the care of a psychiatrist and a psychologist and he says he can attend upon them today to get reports from them.  I think, realistically, they will need some weeks to give him expert evidence.  That evidence should explain, as far as the husband is concerned, why he has not been competent to comply with orders to date and preferably to demonstrate how he will have the degree of competence and composure necessary to comply with orders into the future.

8. I have raised with the husband that evidence from his mental health professionals may also form the basis of an application on his behalf or by the wife for the appointment of a next friend or case guardian in these proceedings.  That would be somebody who is invested with responsibility to run the husband’s case in the event that he is considered by the Court to be unable to conduct his own proceedings.  A case guardian can be appointed by order of the Court for a person whom the Court is satisfied is unable to understand the nature and consequences of the case and is incapable of conducting the proceedings. The case guardian must be an adult who has no interest in the case which is adverse to the husband, can fairly and competently conduct the case for the husband and who has consented to be case guardian.  The Court would consider someone selected by the husband.

9. The matter could have been adjourned to permit the husband to obtain legal advice.  However, there are pressing issues of injunctive relief sought by the wife and, having read her material, for which there is no contradicting material filed by the husband, I conclude that she should be able to get that injunctive relief.

10. The husband has consulted solicitors and the solicitor for the wife confirms that she was contacted by a practitioner from the firm D Associates and advised that they could not get instructions from the husband.  The husband says that D Associates said to him that they did not have sufficient time to get instructions from him, which sounds like exactly the same thing expressed a different way.

11. Whatever the case may be, the wife has come to Court, she still has concerns about the husband dissipating assets and there is no material in opposition to the injunctive relief sought notwithstanding an adequate opportunity to file that material. 

12. The husband can go back to his solicitors and instruct them appropriately.  Alternatively, he can go to any other solicitors he likes and instruct them but he is not going to get more than about three weeks to file the material that he should have already filed.  At the same time, he can file his psychiatric evidence.  In the meantime, however, I have to consider the wife’s application.

13. The wife seeks injunctive relief to preserve property.  The husband says that he is setting up a business in Suburb C with the assistance of some of his other children, one of whom is a health professional.  He says that they need to obtain finance to obtain fittings and fixtures and other equipment for the business.

14. The wife has made clear it’s not her intention to jeopardise his ability to do so but that there are enough concerns set out in her affidavit that she presses her application for injunctions.  I consider that on the balance of convenience she ought to have the injunction she seeks and I shall order accordingly.

15. If the husband does not file and serve his documents by the due date (25 February 2015), he may face an application for an unopposed and undefended determination of the wife’s application.  At the moment, the wife seeks relief which is inadequately specified.  That would need to be remedied before the can proceed in default.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 4 February 2015.

Legal Associate:

Date: 5 February 2015