Keating & Keating
[2023] FedCFamC1F 46
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keating & Keating [2023] FedCFamC1F 46
File number(s): BRC 1506 of 2012 Judgment of: SMITH J Date of judgment: 3 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application for review – wife seeks review of a registrar’s decision to dismiss property proceedings for want of diligent prosecution – complex matter – two prior final hearings and two prior successful appeals –remitted for further final hearing - husband has since left jurisdiction – husband allegedly took the remaining property – husband has advised Court he will not participate – wife seeks undefended final hearing seeking indemnity orders for his debts and orders for any identifiable property - application for review upheld – leave granted to issue one additional subpoena – applicant placed on notice to prosecute their application for an undefended hearing expeditiously or be dismissed for want of prosecution. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Cases cited: Weir & Weir [1992] FamCA 69 Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 3 February 2023 Place: Newcastle by Microsoft Teams Solicitor for the Applicant: Keyworth Harris & Lowe Family Lawyers Solicitor for the Respondent: No appearance by or for the Respondent ORDERS
BRC 1506 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KEATING
Applicant
AND: MR KEATING
Respondent
order made by:
SMITH J
DATE OF ORDER:
3 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application for Review be upheld.
2.Order 1 of Orders dated 8 November 2022 be dismissed.
3.The matter be listed on 17 March 2023 at 9:30 am by Microsoft Teams for mention only.
4.The Applicant is granted leave to issue a single subpoena to the Queensland Police.
5.The Applicant is to provide a supplementary Court Book with any additional material, to that contained in the Court Book for the Application for Review, by no later than 4:00 pm on the 16 March 2023.
THE COURT NOTES THAT:
A.Given the history of the matter, if the Applicant is not ready to take a date for an undefended hearing at that time then the Court will consider dismissing the matter on the basis that it has not been properly and expeditiously prosecuted.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
This is a procedural Application for Review brought by the applicant wife, Ms Keating, age 51, in relation to property proceedings against her former spouse, Mr Keating, aged 60.
Mr Keating has not taken part today and has previously advised the Court that he has no intention of taking part in these proceedings. Mr Keating is believed to be in Country E.
These proceedings have a very unfortunate history. These property proceedings commenced on 22 February of 2012. The parties had a final property hearing. Judgment was delivered on 30 April 2014. That judgment was successfully appealed, and the Full Court remitted the matter for rehearing. The parties had another final hearing. Judgment was delivered on 10 January 2018. On 21 March 2019, the Full Court set aside those final orders as well. The matter was again remitted for rehearing.
The wife asserts, and it appears, that the husband is living in Country E. He has certainly indicated to the Court that he has no intention of taking part in these proceedings. There is a real question as to whether there are any identifiable assets left in Australia or overseas, or whether the husband has taken all of the assets. If there are any assets, the wife does not know where they are.
What she seeks is, as I understand it, an undefended hearing seeking orders as set out in her further amended initiating application filed on 16 October 2022. The majority of the orders relate to indemnities in respect of a wide range of potential liabilities the wife has. I won’t go through those, but I will note that the previous Full Court decision set out in detail, together with the prior judgments, the various issues involved. It is not appropriate nor necessary for me to go through them. As the wife does not seek to relieve herself of primary liability in respect of a the potential liabilities and guarantees, including for tax, but only seeks an indemnity from the husband, for what it may be worth, it is not necessary to notify or seek to join those parties
What the wife also seeks, in effect, on a Weir & Weir [1992] FamCA 69 (Weir & Weir) basis, given the history of the matter is any remaining property or moneys located in Australia pass to her if she can find them, and, similarly, that is she can identify any money overseas, she wants to be able to find that and to have access to that.
The wife says, somewhat surprisingly after all this time and perhaps contributing to the registrar’s decision, that she is still not ready to go to a final undefended hearing. She wants to subpoena the Queensland Police about their investigations to try and track down any money that they may have identified in their investigations.
In the meantime, this matter has been on foot for 10 years and not finalised. A Registrar of this Court dismissed the proceedings pursuant to order 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on the basis that there had been a failure by either party to take a positive step in the proceedings for more than 12 months. That order was made on 8 November 2022.
There is a question of whether or not the filing of a further Amended Initiating Application on 16 October 2022 was a further step, which I think it may have been, so that the basis for the dismissal decision may not have been present. In any event, while itis most unfortunate that the wife has not proceeded to the point where she is ready to take a final hearing on an undefended basis, on balance given that there have been two successful appeals in my view the interests of justice require that the application for review be allowed. I set aside the order made dismissing the proceedings.
I will note that I think if the wife wants an undefended hearing, which I am told can be heard in half a day based primarily upon the previously filed materials, she should seek to do that expeditiously.
The matter cannot just remain on foot indefinitely for years while she seeks to find the property.
She needs to get ready for and have her undefended hearing or else the matter will need to be dismissed for want of diligent prosecution.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 23 February 2023
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