Jamine and Jamine

[2009] FamCA 1183

FAMILY COURT OF AUSTRALIA

JAMINE & JAMINE [2009] FamCA 1183

FAMILY LAW – PROPERTY – Interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Jamine

RESPONDENT: Mr Jamine

FILE NUMBER: MLC 3286 of 2009

DATE DELIVERED: 18 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 November 2009

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Dragojlovic

SOLICITOR FOR THE RESPONDENT: Bowlen Dunstan

Orders

1. That the husband’s application in a case filed 11 November 2009 is dismissed.

2. That the husband pay the wife’s costs fixed in the sum of $400 with a stay of payment for a period of two months from this day.

3. That all outstanding applications for final orders be listed for the first day before the judge on 25 February 2010 at 3.30pm (Melbourne time) with the husband entitled if he so wishes to attend by telephone providing he gives to the Court at least 24 hours prior to the hearing time, a direct landline telephone number at which he can be contacted.

4. That all extant discovery orders be complied with before 18 January 2010.

5. That the reasons for judgment be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3286 of 2009

MS JAMINE

Applicant

And

MR JAMINE

Respondent

REASONS FOR JUDGMENT

1. On 2 November 2009 in the absence of the husband I made order.  One was for asset protection purposes that both parties forthwith sign all necessary documents to sell the property at C.  The proceeds of the sale of that property were to be applied as set out in the order.  Those proceeds were to be used also for the payment of spousal maintenance and spousal maintenance arrears together with costs.

2. I gave leave to the husband to make an application to set aside the orders providing he filed the necessary applications supported by affidavit.  I did so on the basis that he had, through a lawyer, made an application for an adjournment.  I had rejected the adjournment application.  The application that the husband filed was on 11 November 2009 and it simply sought an order that the order I made on 2 November be set aside or varied.

3. The affidavit in support of that application set out that there were some alternative solutions to what he thought was the inappropriate way of resolving the problem of the asset protection.  He suggested that the superannuation in his name could be liquidated and some of that money used for debt reduction.  In addition to that, he said he would liquidate the Australian shares which would net approximately $6000, although he did not have the exact figures because the documents he said were in the matrimonial home to which he has been denied access.

4. The combination of the superannuation and the liquidation of the shares would have provided about $15,000 in his view and that would have overcome the arrears of the mortgage and the balance would be used towards the payment of the $10,000 overdraft facility.  All of these issues were considered and dealt with in my reasons for judgment on 2 November. 

5. There is also a dispute about spousal maintenance.  Senior Registrar FitzGibbon delivered reasons for judgment and made orders on 30 October and the husband has told me today that he proposes to have that decision reviewed.  He said he has had some preliminary legal advice that he has 28 days to lodge the review.  I have disavowed him of that view and he is now out of time to lodge the application for review.

6. The application therefore before me today produces no new material that would satisfy me that the asset protection order I made on 2 November should be set aside.  At that time I decided it was proper because I saw every reason not to use a bandaid measure and the ultimate problem would have been that the bank would have moved to sell up the house. 

7. On the material before me today there is no application to sell the shares;  there are arrears of spousal maintenance.  There is no evidence provided by the husband of the bank being willing to alleviate the pressure, let alone rewrite the mortgage and discharge the liability of the wife;  there is no evidence that the husband can draw against this superannuation in any way, let alone on an emergency basis;  and there is no evidence before me that the husband has got the capacity to meet the orders for costs.  He says that some of those costs orders were made without jurisdiction, but he has made no endeavour to set those orders aside.

8. I am extremely concerned about the fact that this case was originally issued in the Federal Magistrates Court and at that stage it was set down for trial in July.  For reasons which escape me, the matter was transferred to this court and it has languished.  The languishing has not only exacerbated the dispute about the debt position, but it has also created problems in respect of the spousal maintenance issue.  Those matters need to be resolved and I propose to do that relatively quickly.  I cannot make the orders as quickly as the Federal Magistrates Court would have had the matter set down but I can certainly start the matter on its track to a final hearing.

9. The husband says that I should not do that because he has obligations in his professional practice in Malaysia, but he also points to the fact that there is still the outstanding reserved judgment of the Full Court in respect of the disputed divorce.  He says that he wants to argue that there is a jurisdictional issue; at the moment that issue.  I do not see any connection between the disputed divorce and the wife's right to have her case to determine the property matters urgently resolved. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 December 2009