Karbines and Karbines

[2010] FamCA 1020

FAMILY COURT OF AUSTRALIA

KARBINES & KARBINES [2010] FamCA 1020

FAMILY LAW – PRACTICE AND PROCEDURE – disqualification – application by the husband seeking disqualification of the judge on the ground of reasonable apprehension of bias – where it was held that the findings made in relation to the evidence at trial were not of the nature which would disqualify the judge from hearing the further enforcement proceedings – application dismissed
FAMILY LAW – ORDERS – where the wife seeks enforcement of the orders for the sale of property made at trial – where the property is also subject to proceedings in another court – just and equitable – orders that the contract for the sale of property be ratified by the Court

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) FLC 93-041
Strahan & Strahan (Disqualification) (2009) FLC 93-414

APPLICANT: Mr Karbines

RESPONDENT: Ms Karbines

FILE NUMBER: MLF 2479 of 2005

DATE DELIVERED: 5 November 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 5 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR JORDAN

SOLICITOR FOR THE RESPONDENT: C E LEGAL PTY LTD

Orders

1. The husband’s Application in a Case filed on 29 October 2010 is dismissed.

2. The Court ratifies a contract between L Pty Ltd as vendors and Y Street Investments Pty Ltd as purchasers for the real estate at Y Street for the sum of FOUR HUNDRED AND FIVE THOUSAND DOLLARS [$405,000.00] or any greater sum, otherwise in terms of the contract annexed to the affidavit of the wife’s solicitor filed on 1 November 2010.

3. A Registrar of the Court do on behalf of the husband and/or his trustee in bankruptcy forthwith execute a memorandum of transfer to the wife of the land and improvements thereon commonly known as A Street in the State of South Australia being the whole of the land comprised and described in Certificates of Title Register Books Volume … Folio … and Volume … Folio … and all documents as may be required to effect the registration of the said transfer including the documents necessary to discharge of Mortgage Numbers … and … to Westpac Banking Corporation.

4. All matters are removed from pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2479  of 2005

MR KARBINES

Applicant

And

MS KARBINES

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the husband, in proceedings that have been outstanding for many years.  The current application which is before the Court is the application filed by the husband, being an application in a case filed on 29 October 2010 (document 219) which is supported by an affidavit of the husband filed on 29 October 2010.  The application itself says:

   “1.For the honourable Justice Dawe to be removed from the family law case, MLF 2479/2005;

   2.That Judge Strickland is not to replace her; 

   3.To have a fair and honest trial”.

2. The affidavit which is filed in support of that application is the affidavit of the husband.  It contains some 10 or more paragraphs.  Most of the first part of the affidavit refers to a history of the financial proceedings between the husband and wife, by way of property settlement, and the dealings between the parties themselves by way of history, including the allegations made by the husband in relation to the significance of debts, and operation of the company, and dealings with the wife and her solicitors.  The affidavit concludes at paragraph 10A:

   “10AI can go on and on about this case which has been a complete travesty.  My wife and I had a good marriage for 23 years.  I took the whole family overseas 8 times, there were no hard restrictions on money and we lived better than a normal family.  It was bad luck for me that my ex-wife found another partner, but that is no reason for the events that followed, which have been so biased against me.  I feel the judge and the solicitors on the other side have treated me very unfairly, and left me without a home, and without money to start again.  I am now bankrupt. 

   10BI have spoken the truth consistently, and due to the fact that I could not afford a solicitor, I have been ridiculed by the judge and the solicitors on the other side.  I am prepared to answer any questions”.

3. The application by the husband for disqualification needs to be seen in the place that it has in the history of these proceedings.  The Court heard the trial of the property settlement proceedings commencing in April 2007 continuing through to early May 2007 and May 2008.

4. At the trial by way of final hearing of the property settlement proceedings, the husband was not represented.  He was there and participated.  The orders were made by way of final orders on 19 December 2008, when I delivered judgment.  That judgment is a lengthy document, which is in excess of 67 pages.  It sets out the basis for the orders which were made on that occasion after the final hearing. 

5. The material before the Court at the time could be described by some as complex material in relation to the management of the business and ownership of assets and responsibility for debts.  It is, however, the sort of matter which is now commonly dealt with by the Family Court of Australia as the most superior Court dealing with these matters. 

6. The reasons for the orders made are clearly set out in that judgment.  That is the judgment and the orders which are still in effect in relation to these proceedings. 

7. It is clear from the husband’s affidavit that he is not happy with the result.  However, the Court is not able to sit, as a Judge at first instance, on an appeal from my own judgment.  I am required to apply the law. 

8. The relevant law concerning disqualification is quite clear.  The recent decision of the Full Court decision of the Full Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414, sets out the relevant law. In particular, emphasis is placed upon the High Court decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. I refer to the paragraphs of the judgment of Strahan & Strahan (Supra) commencing at paragraph 3, which sets out the quotations from the judgment of the High Court in Ebner (Supra) which are relevant.

9. It also refers to the earlier decision of the Court in the matter of Johnson v Johnson (2000) FLC 93-041 where the High Court set out principles which have often been applied in disqualification cases.

10. The accepted criteria for disqualification is whether a fair-minded, lay observer might reasonably apprehend that the Judge might not bring an impartial, and unprejudiced mind, to the resolution of the question the Judge is required to decide.  The emphasis has been on a “fair-minded person reasonably apprehending”.  It is on the basis that that lay person was properly advised as to the background of the particular matter under consideration.

11. In this matter, it is clear that the husband is not happy with the result of my judgment.  However that does not indicate that I have not been impartial or unprejudiced in the decisions which I have made.

12. The affidavit filed by the husband before the Court on 29 October 2010, reiterates matters which the husband says should have been the basis for the decision of the Court, when making the final property settlement.  He complains about the impact of the result of the orders for property settlement.

13. The material before the Court does not establish for the alleged assertion that I have behaved in a way which disqualifies me.  There is the judgment itself.  It is a judgment based upon the observations, and the evidence before the Court during the long hearing of the property settlement proceedings.

14. What is now before me is an application by way of further enforcement of the orders of the Court for final property settlement.  There is nothing in the material so far before the Court, which would indicate a basis for a fair-minded lay observer coming to the conclusion that I would not be impartial and unprejudiced.  It is true that I have made findings in relation to the parties’ evidence in the property settlement proceedings, but such findings in relation to that evidence are not of the nature that would disqualify me from hearing the further enforcement proceedings of the orders which I have made.

15. I therefore decline the application of the husband that I disqualify myself. 

16. The matter is not listed before Strickland J, and therefore it is not appropriate for the matter to be transferred to him.  He now sits as a Judge of the Appeal Division and would be unlikely, in any event, to be listed to hear enforcement proceedings of an order of another Judge at first instance in this Registry. 

17. I therefore dismiss the husband’s application in a case filed on 29 October 2010.

18. The application by the wife in these proceedings is for an order that the Court ratify the contract made between L Proprietary Limited of the one part as vendors and Y Street Investments Proprietary Limited of the other part as the purchasers for the sale of the property at Y Street. 

19. The documents filed on behalf of the wife, include the affidavit of the wife filed on 18 October 2010, and the affidavit of the solicitor, Mr Jordan, filed on 1 November 2010. 

20. Before me today, Mr Jordan appears and the husband appears by telephone link unrepresented, although in the proceedings before the Court, there has recently been filed an affidavit of the husband prepared by his one-time solicitors.  This indicates that there are proceedings in relation to the chattels stored at the property at Y Street, between one of the companies, C Proprietary Limited (In Liquidation) and another company, DT Pty Ltd.  I will return to that material later.

21. The affidavit filed by the wife on 18 October 2010 appropriately refers to the orders of the Court made by way of final property settlement orders on 19 December 2008 in which orders were made to provide for the husband and wife to act as the sole shareholders of L Proprietary Limited to ensure the sale of Y Street, and from the sale of the proceeds of Y Street, the costs of sale were to be paid, together with all moneys owing to the Westpac Banking Corporation to discharge the mortgages secured over Y Street and the property at A Street, and all moneys owning to various other entities secured over that to release the wife from liabilities, and to pay the balance, if any, to the company, L Proprietary Limited.

22. The steps were taken by the wife to bring about the sale of Y Street in accordance with that order.  They included seeking orders of this Court in May 2009, which gave the wife the control of the sale of the Y Street property. 

23. The affidavit material now before the Court indicates that due to proceedings, and other steps taken in relation to chattels on the property, the attempts made to sell the property, and discharge the Westpac mortgages have been unsuccessful.

24. One of the reasons is the difficulty in obtaining vacant possession due to proceedings, which the husband’s affidavit refers to, being the proceedings between DT Pty Ltd and C Proprietary Limited (In Liquidation).  In the husband’s affidavit, he annexes the copy of the proceedings in the Supreme Court of Victoria, and which have now been transferred to the District Court of South Australia. 

25. The material filed in the Supreme Court of Victoria on behalf of DT Pty Ltd as the plaintiff refers to:

    “The plaintiff, [DT] Proprietary Limited, is and was, at all material times

    a)a company incorporated in accordance with the laws of the State of Victoria;  and

    b)controlled by [the husband] who is the sole director of it;  and

    c)owned by [LS], who is the sole shareholder of it.”

    (Emphasis added)

26. The civil proceedings deal with the claim by DT Pty Ltd to chattels located on the property at Y Street.  However, the proceedings before me today, relate to the real estate and ownership of the real estate of the property. 

27. I have heard submissions from counsel for the wife, that before attending to deal with any of the chattels situated on the property, the wife will obtain appropriate advice in relation to her liability concerning the injunction made in relation to the defendant, C Pty Ltd (In Liquidation), being restrained by “itself, its servants or agents, or otherwise how so ever, from selling, disposing of or, in any way, dealing with the chattels or any of them”.

28. The wife is aware of the injunction directed to the defendant.  I am satisfied that those proceedings do not directly relate to the orders that the wife is seeking in relation to the purchase of real estate by a company controlled by her. 

29. I accept the submissions of counsel for the wife that the wife makes the application to ensure that the steps being taken are known to all and that she is involved in the company which proposes to purchase the real estate.

30. Taking all of the matters into account and in particular the need to enforce the orders of 19 December 2008 which provide, in particular, for the discharge of the mortgages over the Y Street property and the A Street property, I am satisfied that the orders sought are appropriate. 

31. To that extent it was noted that the husband had the ability to take steps to discharge the Westpac mortgages over the Y Street property and the A Street property, which would release the wife from any claims and therefore leave the Y Street property as an asset of L Proprietary Limited.

32. I am satisfied that the material provided to the Court indicates that L Proprietary Limited, registered as the owner of the real estate at Y Street, is a company of which the husband and wife are the sole shareholders, and that therefore it is an entity controlled by them.  It is appropriate for this Court to deal with this matter by way of final property settlement orders and orders by way of enforcement.

33. The Court has heard the submissions of the husband which primarily relate to the history of the proceedings, and his feelings that he has not been dealt with justly and that he has not received the orders from the Court that he wished to receive.  The orders that have been made by the Court based on the judgment that was delivered by the Court some time ago.

34. The Court was asked, by way of application, to ratify the contract made between L Proprietary Limited, and Y Street Investments Proprietary Limited, in relation to the sale of the Y Street property.  The affidavit of the wife refers to a valuation at $405,000, but the contract referred to as annexure “J” and now annexed to Mr Jordan’s affidavit, refers to a purchase price of $450,000.  I accept that the valuation has been obtained, and annexed to the affidavit of the wife which shows the valuation of the property at $405,000.  Bearing in mind the amount outstanding by way of debts to Westpac, and the history of the proceedings, I consider it to be appropriate, just, and equitable, for the order to allow the sale to take place, such that L Proprietary Limited, sells the real estate at Y Street, to Y Street Investments Proprietary Limited, for the valuation figure of $405,000 or higher figure.

35. I further make the order sought by the wife, in relation to paragraph 3, requiring a Registrar of the Court to sign the documents on behalf of the husband, or his trustee in bankruptcy in relation to the transfer of A Street. 

36. I do so based on the history of the lack of cooperation of the husband, in ensuring compliance with the orders of the Court, which were made as long ago as December 2008.

I certify that the preceding thirty-six [36] paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 November 2010.

Associate: 

Date:  16 November 2010