Markell and Markell (No 3)

[2019] FamCA 882

FAMILY COURT OF AUSTRALIA

MARKELL & MARKELL (NO. 3) [2019] FamCA 882

FAMILY LAW – PRACTICE & PROCEDURE – Cross-examination – Where the Applicant filed an Initiating Application seeking to enforce Orders previously made by this Court which the Respondent had not complied with – Where the Respondent made an oral application to be given leave to cross-examine the Applicant on the affidavit she filed in support of her Initiating Application – Where the Respondent did not point to any specific parts of her affidavit which he asserted were false and/or not written by her – Where leave to cross-examine is refused.

APPLICANT: Ms Markell

RESPONDENT: Mr Markell

FILE NUMBER: BRC 6823 of 2012

DATE DELIVERED: 27 June 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 June 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Evans

Evans Brandon Family Lawyers

THE RESPONDENT: Self-represented (appearing by telephone)

Orders

1. That the Respondent’s oral application for leave to cross-examine the Applicant at an interim hearing, is dismissed.

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 Markell & Markell 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 BRISBANE

FILE NUMBER: BRC 6823 of 2012

Ms Markell

Applicant

And

Mr Markell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Last year, on 7 August 2018, I made Orders at the request of the parties, that is the husband and the wife, who were both legally represented at the time, for such Orders to be made with their consent, resolving on a final basis, the property adjustment proceedings that had been going on between them for some years that had been set down for a trial in front of me at or around that time. I considered the Orders, as I was asked to make them by the parties, to be “just and equitable” in all the circumstances. If I recall, those Orders also dealt with spousal maintenance, adult child support, and child support related matters, including payment of arrears as lump sums.

2. Those Orders provided for a framework of refinancing, if I recall, of liabilities that were secured over two pieces of real property. One of those pieces of real property is a residential home in City U in which the wife resides and, to the best of my recollection, perhaps one or two of the three children of the husband and the wife also reside there with her.  That property, if I recall correctly (the residential property occupied by the wife), was registered in the name of both the husband and the wife.

3. There was a second residential property, real property in City U, which was, as I understand it, an investment property of the parties, but registered in the name of the husband alone. The Orders that I made with the consent of the parties, I recall, provided a situation where ultimately, I think the wife was going to try and retain if she could the residence in which she was living, with a transfer to her of the husband’s right, title and interest and a refinancing of security attached thereto. The Orders were designed to facilitate a retention by the husband, if possible, of the investment property after certain refinancing.

4. The refinancing issues were a little bit complicated, as is often the case in these situations, by a cross-collateralisation of mortgage debt over the two properties in various ways. Nevertheless, the parties had, no doubt with the assistance of their lawyers at the time, reached agreement about the regime by which that was to happen. If I recall, the matter came back before me again sometime thereafter for some slight amendment necessitated to those Orders by certain events that had happened post the Orders having been made.

5. The matter comes back before me today on an application by the wife filed on 17 June 2019. I was about to say by an Application in a Case, but it is actually an Initiating Application and that is, I expect, because the matter has been concluded on a final basis with those Orders that were made by me. In the Initiating Application, which the solicitor who acts for the wife who is the Applicant in this application today describes as effectively “Enforcement Orders”. The Orders actually seek in the first instance an Order that:

   By way of enforcement of the orders made by consent on 7th August, 2018 as amended by the orders made on 14th March, 2019… the Wife shall be appointed Trustee for Sale of the property at I Street, G Town, more particularly known as Lot … on Registered Plan …

   That is the investment property that is registered in the sole name of the husband.

6. The rest of the Orders the wife seeks effectively describe what she shall be entitled to do if she is appointed trustee for sale of that particular property, including ultimately filing and serving an Affidavit of Account in respect of the sale and proceeds of the disposition of the sale.

7. Her application is supported by two affidavits. The first one is her own affidavit, filed on 17 June 2019 that she swore on 31 May 2019. In that affidavit, which is about two and a half pages long, she deposes to a number of things. Effectively, she starts her affidavit by asserting that she is entitled by force of the final Orders to receive financial payments from the husband in the form of property settlement, child support, adult child maintenance and interest. That much is hardly controversial.

8. She then goes on say that the Orders required that her estranged husband take on finance facilities so as to encumber the property at G Town so that he could pay her the money he was obligated to pay her under the Orders or else, sell the property.

9. She points out that the Orders I made on 14 March 2019 that amended the final Orders effectively did so by her agreeing to the husband’s request that he be given another 30 days from that date to carry out his refinancing, the refinancing that he was required to carry out if he wanted to keep the property and not sell it, which he had not put in place at that time.

10. In her affidavit, she effectively points out that she gave the husband that indulgence, an indulgence which he effectively requested in March when the Orders were amended to reflect that change. She then goes on simply point to out that even though he was given another 30 days to refinance, he did not do it. She then again just points that the Order provided that he was to do all acts and things as were necessary to procure the sale of the property by public auction on a 30 day campaign if he had not refinanced it. Again, that is hardly controversial.

11. She goes on then to say though, that instead of listing the property for sale by auction, he listed the property with a particular real estate agent in G Town to be sold by private treaty. It does not appear to me on the evidence that I have seen that that is controversial either.

12. She points out that in the marketing material that relates to the marketing of the sale of that property, there is no mention of the auction process. She then says she engaged her lawyers to take that up with the real estate agent, which they did.

13. She also refers to and quotes emails. One of those emails, which she says puts beyond any doubt the fact that she asserts the husband was not complying with the obligation to auction the property straight away, he sent to her solicitor on 20 May 2019 in which he said to her that the Court has accepted his Application in an Appeal which is being heard on 10 July and in which he said, interestingly, that the Orders that I made are to be “put on hold”, although he was going to leave his house on the market by private treaty, clearly showing that he had no intention to meet the Orders that were made by me.

14. She points out, rightly from where I sit, that no permission had been actually obtained or given to stop the sale regime. What she is referring to there, effectively, is that the Orders that I had made requiring the property to be sold by auction, if it was not refinanced, that was to take place within 30 days, had not been stayed and have not been stayed until this point in time.

15. She then goes on to express the view that the husband seems to take issue with the property being required to be sold by auction. She says she therefore wants to be appointed the trustee and says that if she is not appointed trustee, she considers that the Orders that were made and the obligations that were imposed upon her husband to sell the property and for her to receive money, will continue to be frustrated.

16. She then simply says in paragraph 23 a whole list of things. She says that she has not been paid any of the sums required by the Orders, that she remains entitled to the payments, that the husband is aware of his obligation to pay, she is prepared to fulfil any conditions that the Court may impose upon her as trustee, there could be no dispute about the amount of money involved in respect of the Orders that I made, that there is interest accruing, and she has taken no other steps to enforce.

17. She expresses the opinion or concern that her husband is simply trying to delay the inevitable sale of the property so as to frustrate the payments to which she is entitled. She expresses a view that she believes his application for leave to appeal out of time and his proposed appeal have no prospects and asserts that she and the children are suffering the problems created by not having the money that the husband is required by the Orders to pay her.

18. She also filed an affidavit by Mr Evans, her instructing solicitor, which sets out in transcript form the content of a number of emails that have been going backwards and forwards between him and the husband and between him and the real estate agent appointed by the husband, which effectively confirm that the husband has not complied with the obligations imposed upon him by the Orders that were made, with his consent, last year and that I amended earlier this year by giving him the indulgence to have an extra 30 days within which to refinance before the property went to auction.

19. At the hearing of today’s application, Mr Markell, who appears without legal representation by telephone from the prison in which he is incarcerated, informs the Court that he has sent an affidavit and a formal Response to the Court yesterday for filing and that he would want the Court to be able to read what is contained in that and considers that it would be unfair and inappropriate to proceed to determine the application without considering that affidavit.

20. In response to that, I informed him that I would proceed to hear the application, but not actually determine it until a reasonable period of time within which one would expect his affidavit would have arrived at the Court had expired, where upon after his affidavit was received or that period has expired, whichever is the earlier, I would proceed to determine Mr Evans’ client’s application. Nevertheless, I gave him every opportunity to tell me what it is that is contained in that affidavit and what is the basis of the opposition he expresses to the application that is made on behalf of the wife. Then, however, he made an oral application, not previously foreshadowed in any way, but simply made on the spur of the moment, to be able to cross-examine the wife.

21. In support of that application he says this: that in his wife’s affidavit, there are things that are not true and that there are things that are not written by her. He says he would like to ask her about that. Whilst given the opportunity to make submissions, he has not pointed out what things in her affidavit are not correct, nor has he said what he says is correct instead of what he says is incorrect in the affidavit. In other words, in short, he did not tell me, by taking me to parts of her affidavit, that what she asserts is false and untrue and that it is false and untrue in such a determinative way that if I found he was right, it would cause me to find against her. He simply says he would like to ask her about those things without particularising what those things are.

22. As I pointed out to him at the start when he told me he wanted to make such an application, this Court only gives leave to cross-examine witnesses on interim matters like this in extraordinary circumstances. I invited him to make his submissions with that in mind to persuade me that there were extraordinary circumstances that would require leave to be granted so that justice can be done and having heard his submissions, I am plainly not satisfied that he has persuaded me that there are such extraordinary circumstances here that the hearing of the application ought not proceed until he is allowed to cross-examine his wife and I refuse such leave.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 June 2019.

Associate: 

Date:  26 November 2019