KESKIN & KESKIN

[2020] FamCA 323

FAMILY COURT OF AUSTRALIA

KESKIN & KESKIN [2020] FamCA 323

FAMILY LAW – PROPERTY – where the husband’s application is to enforce an order for the sale of a property in Country O – where the husband and the second named respondent seek to proceed with their applications for final orders on an undefended basis – where the wife opposes the matter proceeding on an undefended basis – where it is not appropriate for the matter to proceed on an undefended basis –– where there is a final intervention order which remains in force – where s102NA(2) of the Family Law Act1975 (Cth) will apply to any cross-examination – where the matter is listed for final hearing.

Family Law Act 1975(Cth) s 102NA

APPLICANT: Mr Keskin

FIRST RESPONDENT: Ms Keskin

SECOND RESPONDENT: Mr R Keskin

FILE NUMBER: MLC 9445 of 2014

DATE DELIVERED: 20 May 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 20 May 2020

REPRESENTATION

THE APPLICANT: In Person

THE FIRST RESPONDENT: In Person

THE SECOND RESPONDENT: In Person

Orders

IT IS ORDERED THAT

1. All extant applications for final orders be adjourned for hearing by way of a video hearing or as otherwise advised before Justice Macmillan at 10.00 am on 10 August 2020 as a 3 day matter and the provisions of ss 102C, 102D, 102E, 102G and 102H of the Family Law Act 1975 (Cth) (‘the Act’) shall apply.

2. I DIRECT THAT, pursuant to rule 16.04 of the Family Law Rules 2004 (Cth):

   a)    All documents in these proceedings shall be electronically filed; and

   b)   In the course of cross examination or the appearance of a person by video link it is necessary to put a document to that person a copy of the document be transmitted to the Court or that person as relevant.

3. The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings on or after 10 September 2019.

4. By 4.00 pm on 17 July 2020 the Wife file and serve upon all other parties:

   a)an amended response setting out with precision the orders to be sought;

   b)the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and

   c)a financial statement that complies with Chapter 13 of the Family Law Rules.

5. By 4.00 pm on 31 July 2020 the Husband file and serve any affidavit in reply to the affidavits of the Wife and a financial statement that complies with Chapter 13 of the Family Law Rules.

6. By 4.00 pm on 31 July 2020 the Second Named Respondent file and serve any affidavit in reply to the affidavits of the Wife.

7. No party file any further material other than as provided by these orders without leave of the Court.

8. If either party takes objection to any evidence of the other party:

   a)any objection be taken no later than 14 days prior to the trial by service of written notice on the solicitor for the other party;

   b)the party so served shall notify the objecting party in writing no later than 7 days prior to the trial of which objections so taken are the subject of agreement and which require determination.

9. All parties have leave to issue subpoenas for the production of documents by arrangement with the registrar docketed with the management of the file.

10. That if any party has documents which they seek to tender, that party shall provide a paginated bundle of said documents electronically to the Court by way of email to ... or by delivery to the Associate to the Honourable Justice Macmillan at the Melbourne Registry of the Family Court of Australia by no later than 4.00 pm on 6 August 2020.

11. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

12. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

13. The applicant pay all setting down and trial fees by 4.00 pm on 31 July 2020 or obtain the requisite waiver thereof.

14. The practitioners and/or the parties in the event that they are not legally represented file electronically to ... and serve upon all other parties by 4.00 pm on 6 August 2020 the following:

    a)a concise set of orders to be sought if different from those already filed;

    b)a list of the applications and affidavits filed pursuant to these orders to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    c)a list of the parties’ respective legal and equitable interests in property and liabilities;

    d)a list of objections to evidence upon which rulings are required, if any; and

    e)a bullet-point summary of argument in relation to the legal and factual issues in dispute. Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.

15. The practitioners and/or the parties in the event that they are not legally represented be at liberty to approach Justice Macmillan’s Associate via email for an urgent listing of the matter if required.

AND THE COURT NOTES:-

A.That the parties intend to cross-examine each other at the trial of the proceedings, and that there is an allegation of family violence between them;

B.That the parties have each been advised by the Court:-

i.That pursuant to these orders, neither party may cross-examine the other party personally;

ii.That pursuant to these orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

iii.As to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

iv.That a copy of these orders will be provided by the Court to Victoria Legal Aid, which administers the said scheme.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9445 of 2014

Mr Keskin

Applicant

And

Ms Keskin

First Respondent

And

Mr R Keskin

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter has come before me on a number of occasions in the last month and a half.  The proceedings which have a long history were commenced in 2014, have been the subject of appeal and have been remitted for a rehearing.  The matter came before the Court on this occasion by way of the husband’s application to enforce an order for the sale of a property in Country O.  That order, although part of the final orders from which the husband appealed, remains in force. However, the husband submitted at a previous hearing that, in effect, there was no way of enforcing that order in Country O in circumstances where the wife has now instituted proceedings in Country O in relation to that property. 

2. The husband’s application for enforcement came on for hearing in the Judicial Duty List on 8 April 2020. It was referred to this list by Registrar George on 28 February 2020. On that date the Registrar also ordered that by 30 March 2020 the wife file a Response to the husband’s Application in a Case and an Affidavit.  The matter was then allocated to my list to be fixed for a final hearing and was then listed for hearing before me for mention, so that I could see what was required to get the matter ready for that final hearing.

3. Although I am satisfied that the wife was aware of the hearing on 22 April 2020, which was the date when the matter was first listed for mention before me, she did not appear and I adjourned the matter to 30 April 2020. I further ordered that, by 4 pm on 28 April 2020, the wife file electronically to my associate and serve upon the other parties a document setting out the orders she sought by way of a final property settlement. 

4. Although I am satisfied that the wife was aware of the hearing on 30 April 2020, she again did not appear. I adjourned the matter to today’s date and further ordered that the wife file and serve a Response to the husband’s Amended Application in a Case, which in essence, sets out the orders he is seeking by way of final property settlement, and any Affidavits in support of her Response and in reply to the husband’s Affidavits filed 7 February 2020 and 29 April 2020.  I also reserved liberty to the husband to apply and the husband and the second respondent to make an oral application this day to proceed with their respective applications on an undefended basis. 

5. The second respondent is the husband’s father.  He is seeking the removal of caveats the wife has lodged over real property which he says he owns, and he, as does the husband, seeks that the matter proceed on an undefended basis today.  Although the wife has not strictly complied with the orders made either by the Registrar on 28 February 2020, my order of 22 April 2020 or the order I made on 30 April 2020, she did file an Affidavit and did appear today seeking to continue participating in the proceedings.

6. I am mindful of the need for this matter to be resolved given its long history and the level of disputation that has been ongoing for many years.  The husband points out and it would appear, based on his Affidavits, to be a reasonably legitimate concern that he is under significant financial pressure given what has occurred with the COVID-19 virus and how that has impacted on his business.  He tells me that he is threatened with bankruptcy and that the property in Country O must be sold to meet his debts.  He has already, however, as previously referred to, made it clear that the Country O courts will not be bound by any orders that I might make to enforce the order for sale.  The second respondent, also submits that the matter should proceed, because he is trying to borrow monies using the real property over which the wife has lodged the caveats as security. 

7. Whilst I am aware of the concerns of both the husband and his father and have had regard to the fact that the wife has not strictly complied with the orders, on more than one occasion. I must weigh up the fairness to both parties and in my view, it would not be appropriate for the matter to proceed on an undefended basis today. That being said, I am keen to have the matter listed for a final hearing as early as possible, and although I initially had thought that it might be possible for the matter to be listed for final hearing in late June, the wife has brought to my attention that there is a final intervention order which remains in force until 18 October 2021. In those circumstances, s 102NA(2) of the Family Law Act1975 (Cth) will apply to any cross-examination occurring in the proceedings.

8. Both the husband and the wife have indicated that they want to cross-examine the other party and that their respective evidence will be in dispute.  Given that there is a final intervention order in force, I cannot allow cross-examination and propose to make orders which will enable the parties to apply for legal aid under the Commonwealth Family Violence and Cross-Examination of Parties Scheme and must allow sufficient time before listing the matter for final hearing for that to occur. 

9. Victoria Legal Aid (“Legal Aid”) say that they require six weeks to process the application, and the parties will need to make those applications promptly, and if they do not do so, then it may well be that that is another issue as to how the matter proceeds.  If the parties make that application promptly and Legal Aid will be aware of the need to address those applications, the wife will then have the benefit of legal assistance to prepare her material, and I will allow her a short period for that to occur, and the husband similarly will have legal representation to enable him to prepare any answering material. 

10. I will list the matter for trial in August 2020.   It will be able to proceed by video or otherwise, subject to the parties doing what they need to do and that is firstly applying to the relevant Legal Aid scheme to enable them to be legally represented.

11. I hear what the husband says about the need for the matter to be dealt with as urgently as it can be, and I am doing all I can to give it priority, so that I can bring it to a conclusion.  Insofar as there are proceedings proposed in Country O in June, in circumstances where there is a final intervention order in force, I cannot avoid having it listed a little further out than the husband would like. In any event it will take some time for judgment to be delivered.  One would hope that if there are to be other proceedings, as the husband said there could be, with respect to his current financial position, knowing that there is a court date in this Court will hopefully assist.  So I propose to make orders setting the matter down for final hearing in August this year.   

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 20 May 2020.

Associate:

Date:  20 May 2020