Madril and Falke

[2019] FCCA 3486

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADRIL & FALKE [2019] FCCA 3486

Catchwords:
FAMILY LAW – Property – where both parties reside outside Australian jurisdiction in the Country B – where there is no remaining matrimonial property in Australia – where proceedings have commenced in the Country B – where there are no means of enforcing orders of this court in the Country B – where applicant seeks notations in addition to orders – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS MADRIL

Respondent: MR FALKE

File Number: DNC 596 of 2017

Judgment of: Judge Young

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Darwin

Delivered on: 18 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: No appearance

Solicitors for the Respondent: No appearance

ORDERS

1. That all outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 596 of 2017

MS MADRIL

Applicant

And

MR FALKE

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a property application brought by the de facto wife on 14 December 2017. I have decided to dismiss the proceeding for the following reasons. First, both parties now reside in the Country B. Secondly, there is no evidence of any matrimonial property remaining in Australia. Thirdly, matrimonial or de facto property proceedings have been commenced in the Country B. Finally, there is, as far as I’m aware, no means of enforcing any orders of this court in relation to a property settlement in the Country B. There is no disagreement about these matters

3. In all these circumstance I see no utility in the proceedings continuing.  I was urged by counsel for the wife, Mr Barry, to make various notations in addition to the order dismissing the proceedings. I was invited by Mr Barry to note that the respondent de facto husband had a filed only an affidavit and a financial statement. I don’t know what purpose would be served by adding that notation to any order.

4. What Mr Barry has said is in fact correct as far as I can see from looking at the file but I see no utility in making that notation. Next, Mr Barry asked me to make a notation that the de facto husband in his financial statement filed on 2 February 2018 deposed to holding $53,000 in a cash account at the ANZ Bank, another $5,800 in cash in Westpac bank and having also held a share portfolio of indeterminate value but which the de facto husband said he had acquired for $100,000.

5. The de facto husband also deposed to having property in Country B at “City A” (he doesn’t say where in Country B), which he owned with the de facto wife, valued at $100,000. In addition, he deposed in his financial statement to having household contents worth $5,000, other personal property described as “tools” worth $1,500 and a car worth $2,300. In addition he said he had a Super Fund C superannuation worth $80,000. A debt of $5,200 was also mentioned.

6. Mr Barry asserted that the husband had attempted to subvert these proceedings by ensuring that that property was removed from the jurisdiction, that is, from Australia, in order to defeat any claim the de facto wife may have had. I don’t propose to make any finding about whether that was the case or not. However, the fact is that the effect of the de facto husband’s conduct was to achieve, whether intentionally or otherwise, exactly that. Ideally, the de facto wife would have obtained an injunction to prevent the husband dealing with those assets but that wasn’t done. There is no criticism of the de facto wife’s solicitor intended.

7. I do not know precisely what the timeline was but all the property has been removed from the jurisdiction and there is nothing on which orders of this court could operate.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 3 December 2019