Keskin and Keskin

[2016] FamCA 33

FAMILY COURT OF AUSTRALIA

KESKIN & KESKIN [2016] FamCA 33

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where neither the applicant wife nor the respondent husband adduced evidence that would provide a proper basis for any of the various orders sought by the parties – Wife’s application and husband’s response dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Keskin

RESPONDENT: Mr Keskin

FILE NUMBER: MLC 9445 of 2014

DATE DELIVERED: 29 January 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Stevenson J

HEARING DATE: 13 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cenacchi

SOLICITOR FOR THE RESPONDENT: Mr Ozjurk

Orders

1. That the wife’s Application in a Case filed on 30 November 2015 is dismissed.

2. That the husband’s Response to an Application in a Case filed 13 January 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keskin & Keskin 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 SYDNEY

FILE NUMBER: MLC 9445 of 2014

Ms Keskin

Applicant

And

Mr Keskin

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings came before me in a Duty List on 13 January 2016.  The wife sought the following orders by way of an Application in a Case filed on 30 November 2015:

   1.That an order be made for an urgent court hearing due to being served a ‘WRIT’ issued through the Supreme Court of Victoria filed by Bank of Queensland.

   2.Orders be made in respect to Intervention Orders to allow communication between parties via email and letter only, as we both self represent [sic].

   3.Orders to immediately appoint an Administrator to the companies [B Pty Ltd] (ACN …) and [C Pty Ltd]. (ACN …) and [D Pty Ltd] (ACN …).

   4.Orders that the [B Pty Ltd] (ACN …), [C Pty Ltd]. (ACN …) and [D Pty Ltd] (ACN …) referred to herein as ‘the companies’ are joined to the family court proceedings.

   5.Orders for ‘the companies’ to make full payment of outstanding arrears to [E School] as per orders of 6 November 2014.

   6.Orders for the urgent release of funds in the amount of $40,000 in the interim to be characterised at final hearing, issued by garnishee notice to the bank accounts of ‘the companies’.

   7.Order that Part 1 (f) of Consent Orders made on the 29^th October 2015 be discharged.

   8.I seek order to reinstate Part 1 a), b) and c) of the dismissed orders made on 28^th August 2015, that was instructed by your Honour at the time of hearing; to pay the applicant wife an equal amount for every dollar over and above $600 salary allocated to the respondent. This amount to be backdated.

   9.Orders to sell both properties by public auction situated at
   [1 F Street, Suburb G] and [2 F Street, Suburb G] and funds to be held in trust of the conveyancing lawyers ‘Law 554’

   (As per original)

2. By a Response to Application in a Case filed on 13 January 2016 the husband sought the following orders:

   1.That the wifes Application in a case filed with this Honourable Court on 30 November 2015 be dismissed;

   2.That the wife pay the husbands cost of and incidental to thee[sic] proceedings

   3.That the wife provide to the husband copies of sale contract [I Real Estate] for [H Street]

   4.That the wife provide to the husband copies of sale contract
   [J Real Estate] [K Street, Suburb L]

   5.That the wife hereby do all acts necessary to facilitate compliance with obligations pursuant to orders dated 31 March 2015 including but not limited to orders 9 and 10 Attachment C

   The wife instruct her accountant to provide materials as requested by [Mr M]

   6.That the wife do all things necessary to facilitate compiance[sic] with her obligations pursuant to the orders dated 06 November 2014 including but not limited to order 5 Attachment A

   That the wife provide statements to all her personal accounts including but not limited to

   … NOT DISCLOSED
   …

   …

   7.That the wife provide full disclosure of all government assistance currently and previously received by the wife

   8.That the wife not withdraw daughter [N] from [E School]

   (As per original)

   During the interim hearing I was informed by counsel for the husband that he did not press for orders in accordance with paragraphs 2 and 4 of the Response to Application in a Case.

3. The affidavit evidence of the parties was presented in emotive and confusing terms and was of limited assistance to me in determination of the interim issues.  The interim hearing took place on 13 January 2016, when I reserved judgment.  On 14 January 2016 the wife swore an affidavit which she apparently sought to place in evidence.  No attempt whatsoever was made on behalf of the wife to seek leave to adopt that course, thus I place no reliance on the contents of this affidavit.

Consideration

The wife’s Application in a Case

1. I will consider each paragraph of the wife’s Application in a Case sequentially, noting that her counsel indicated that she sought orders in terms of the whole of its contents.

Paragraph 1

1. I would have thought it obvious that this paragraph is otiose as the proceedings were placed in a Duty List on 13 January 2016.

Paragraph 2

1. Both parties were represented by counsel at the interim hearing, hence I am not prepared to find that they “both self-represent”.  In any event, I was taken to no evidence which might provide a proper basis for this proposed order.

Paragraphs 3 and 4

1. The wife pointed to no evidence as to the identity of the directors and shareholders of these three companies.  In her affidavit of 26 November 2015 the wife stated:  “I make this affidavit in reference to previous affidavits filed with this court and in relation to the Application in a Case filed here in”.  If the wife had previously adduced this evidence, her legal representative should have taken me to the relevant affidavit.  Counsel for the wife did not point to any such evidence and I do not consider it is my responsibility, or indeed my right, to trawl through the court file and extract any such evidence myself.

2. Additionally, Rule 5.09 provides as follows:

   Affidavits

   (1)The following affidavits may be relied on as evidence in chief at the hearing of an interim or procedural application:

   (a)       subject to rule 9.07, one affidavit by each party;

   (b)one affidavit by each witness, provided the evidence is relevant and cannot be given by a party.

   Rule 9.07 is irrelevant for present purposes.  I was given no reason why the wife should be excused from compliance with this Rule, noting that without leave she purported to rely on two affidavits sworn 26 November 2015 and 15 December 2015.

3. Accordingly, I am in no position to make findings as to the beneficial ownership and control of these three companies.  It follows that I cannot tell whose legitimate interests may be affected by the orders sought by the wife.  Additionally, there was no evidence that these companies were afforded notice of the orders sought by the wife “to immediately appoint an administrator”.  The wife adduced no evidence as to the identity or availability of any proposed administrator, nor as to his or her likely costs and charges.  Accordingly, an order in terms of paragraph 3 of the wife’s Application in a Case would be meaningless and completely incapable of enforcement.

4. It seems to me that the wife should have applied to join the companies as respondents to the proceedings before she made any attempt to place these entities in administration.  In my view, the evidence adduced by the wife provided no proper basis either for joinder of the companies as respondents or the appointment of an administrator.

Paragraphs 5 and 6

1. For the above reasons, I decline to make any order which would affect the companies, including the application that they provide an unspecified sum so as to extinguish arrears of school fees.  I certainly am not prepared to make any order in the form of a “garnishee notice to the bank accounts of the companies”, so as to procure payment of $40,000 presumably to the wife, even on the assumption that I have power to do so.

Paragraph 7

1. The interim orders of 29 October 2015 provided relevantly as follows:

   5.The former matrimonial home at [K Street, Suburb L] be sold forthwith by public auction on or before 5 December 2015, and that proceeds of sale be disbursed as follows:

   (a)To payment of agent’s commission, advertising and legal expenses;

   (b)To payment of all moneys due and owing to Bank of Queensland for Mortgage and Line of Credit so as to fully discharge it, and to payment of the Garanti Bank mortgage in full regarding the [Country O] property;

   (c)To payments due and owing on repairs to  property required to effect the sale;

   (d)Arrears of school fees ($ circa $20,000) and fees in advance for 2016 ($ circa $20,000);

   (e)$255,000 partial property settlement for the Applicant;

   (f)$150,000 partial property settlement for the Respondent;

   (g)Balance remaining to trust account of Croxford Partners Solicitors for Wife pending Court Order or settlement.

2. The husband deposed that the Suburb L property was sold for $1,580,000 at auction on 5 December 2015.  The wife adduced no proper or persuasive evidence in support of her application for a discharge of the order which would see the husband receive a sum of $150,000 from the sale proceeds.  Her affidavits of 26 November 2015 and 15 December 2015 made generalised allegations of inappropriate spending on the part of the husband but, in my view, the evidence fell well short of establishing any basis for the discharge of this order.

Paragraph 8

1. There was a dispute as to whether any orders were made on 28 August 2015 by the Federal Circuit Court.  The court record indicated that the only order made on that day was as follows:

   THE COURT ORDERS THAT:

   1.The matter be adjourned to Federal Circuit Court of Australia on 30 September 2015 at 10.00am for Mention.

   If any additional orders were made on 28 August 2015, the wife failed to provide me with a sealed copy thereof.

Paragraph 9

1. The wife adduced no evidence as to the legal and beneficial ownership of the two properties at Suburb G.  In this context, I repeat my comments in relation to earlier affidavits sworn by the wife during the course of my consideration of the application for joinder of various companies as respondents to the proceedings and appointment of an administrator.

Conclusion as to the wife’s Application in a Case filed on 30 November 2015

1. For all of the above reasons, I conclude that the wife cannot succeed in any of the relief sought in her Application in a Case filed on 30 November 2015.  Accordingly, I will dismiss that application.

The husband’s Response to Application in a Case filed on 13 January 2016

1. As noted, paragraphs 2 and 4 of the husband’s Response to Application in a Case were not pressed at the interim hearing.  I will consider the remaining relief sought in that Response sequentially.

Paragraph 3

1. The husband adduced no evidence in relation to a sale of the property

   
   

   H Street, Suburb P, nor any need on his part for a copy of the contract.  I will not make the order sought in such circumstances.

Paragraphs 5 and 6

1. It appears that orders have already been made which require the wife to take these steps.  I can see no utility in making further orders to the same effect.

Paragraph 7

1. I was not sure of the meaning nor purpose of this proposed order.  I do not understand the meaning of the term “all government assistance currently and previously received by the wife”, nor any basis upon which I might contemplate making such an order.

Paragraph 8

1. The evidence of the wife was that the parties’ daughter N has already been withdrawn from E School.  The wife’s uncontradicted evidence was the N has been enrolled at Q School, where she will commence Year 7 in 2016.  In these circumstances, I decline to make an order which would cause N once again to change schools.

Conclusion as to the husband’s Response to Application in a Case

1. For reasons indicated above, I conclude that the husband should not succeed in any of the relief sought by his Response to an Application in Case filed on

   
   

   13 January 2016.  Accordingly, I will dismiss that Response.

2. For the sake of completeness, I will address the astonishing submission put by counsel for the husband that the authority of Rice and Asplund (1979)

   
   

   FLC 90-725 is authority for the proposition that “if there are no new facts orders should not be interfered with”.  It is absolutely clear that Rice and Asplund related to parenting proceedings and not to financial proceedings.  Evatt CJ stated as follows:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever present factor in human affairs.  Therefore the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.  These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be preserved.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on

29 January 2016.

Associate: 

Date:  29 January 2016