McCortney and Ashton

[2011] FamCA 576

FAMILY COURT OF AUSTRALIA

MCCORTNEY & ASHTON [2011] FamCA 576

FAMILY LAW – PROPERTY – Interim payment

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175
Ciabo & Ciabo (1996) FLC 92-651

APPLICANT: Ms McCortney

RESPONDENT: Mr Ashton

FILE NUMBER: BRC 2613 of 2010

DATE DELIVERED: 27 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 June 2011

REPRESENTATION

THE APPLICANT: Ms McCortney in person

THE RESPONDENT: Mr Ashton in person

Orders

1. The Application in a Case filed by the wife on 4 May 2011 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 2613 of 2010

Ms McCortney

Applicant

And

Mr Ashton

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. The parties appear before me today in respect of an Application in a Case filed by the wife on 4 May 2011.  The wife represents herself and prepared her own material in respect of that application.  The husband also represents himself, but it ought be noted that he is a legal practitioner. 

2. Contrary to the requirements of the Rules, the husband has not filed a Response.  For reasons shortly to emerge I nevertheless proceeded to hear the application on the assumption that the husband opposes it.

3. In her Application, the wife seeks the following orders:  

   (1)that the application be heard on an urgent basis;

   (2)that the husband forthwith pay out in full all moneys owing to [Bank 1] in respect to [Bank 1] credit card account number […36] in the wife’s name and all interest and legal costs payable by the wife in respect to the Magistrates’ Court of Victoria at […] in action number […] commenced by [Bank 1] against the wife in respect of such credit card account. 

4. The wife’s affidavit deposes to documents being served on her on 15 April by solicitors for that bank and exhibits the documents to her affidavit. 

5. It should be observed that this matter has a somewhat lengthy history in first the Federal Magistrates Court and more recently in this Court.  

6. On 24 August 2010, an order which, on its face, refers to having been made by Spelleken FM but which the parties both agree was in fact made by Cole FM was made that, pending further order, the husband pay the wife spousal maintenance in the sum of $500 per week. Further orders were made for the progress of the action. 

7. It is particularly important in the context of this application to observe that Forrest J made orders on 8 April 2011 consequent upon the transfer of this matter to this Court.  His Honour ordered:

   By way of Spousal Maintenance orders

(3)Pursuant to subsection 83(1)(d) of the Family Law Act 1975, Order 2 of the Orders of Federal Magistrate Cole made on 24 August 2010 be suspended from the date hereof until further order and the further hearing of the mother’s application for enforcement of the said order be adjourned to the hearing in this Court of the applications of the parties for final parenting, property and spousal maintenance orders.

1. His Honour’s orders went on to provide: 

   By way of interim injunctions in respect of property:

   (4)Forthwith and until further order, the husband shall cause all payments required to be paid by way of principal and interest in respect to Aussie Express loan account number […45] and Aussie Express loan account number […70] to be paid so as to bring both of those loans back into payment order and so as to keep those loans from falling into default again before the hearing in this Court of the applications of the parties for final parenting, property and spousal maintenance orders.

   (5)All of the payments to be caused to be made by the husband pursuant to order 4 of these orders are to be caused to be made in priority to all other debt repayments being caused to be made by the husband, including, in particular, any being caused to be made in respect of the Aussie Easy Loan Plus loan account number […98] and Aussie Easy Loan Plus loan account number […78] and the lease of the Mercedes-Benz […] that the husband drives, such that no such payments shall be caused by the husband to be made in respect of any of those other liabilities until the payments that he is to cause to be made pursuant to order 4 of these orders are actually made and those two loans are and remain in repayment order.

2. It is of great significance to note that this matter is listed for final trial before Forrest J for three days commencing 8 August 2011 – that is, in about five weeks time. 

3. I have earlier referred to the fact that the husband has not filed a Response to the wife’s Application in accordance with the Rules despite him being a legal practitioner.  He did file, by electronic means, an affidavit on 21 June 2011.  As I said earlier, that affidavit makes it plain that he opposes the orders sought by the wife and in effect seeks a dismissal of her application to that effect. 

4. The wife raised no objection to the husband not filing a response in formal terms, and in any event, I note that the Rules provide for me to dispense with compliance in that respect.  I am minded to do so in circumstances where no prejudice can be seen to the wife by reason of the failure to file a response.

5. It seems to me that the affidavit plainly sets out the husband’s opposition and the basis for it and plainly sets out what is, in terms, a simple opposition to the orders sought.  In those circumstances, I can’t see that the wife is prejudiced by the husband’s failure to file a response, and she raises no such prejudice before me. 

6. In those circumstances, then, I propose to formally dispense with the requirement by the husband to file a Response in accordance with the Rules so as to allow the wife’s Application in a Case to proceed before me today. 

7. Whilst speaking of the material I should also make mention of the fact that on or about 21 June 2011, when the husband electronically filed his affidavit, he sought to file 921 pages of material.  That prompted a letter from a Registrar of this Court, Registrar Stoneham, on 23 June 2011, the contents of which were read into the record at the commencement of these proceedings. 

8. The effect of that letter can be seen encapsulated in its last paragraph, consequent upon the Registrar noting that the husband has “previously been requested at a directions hearing not to eFile documents in this manner”.

9. In any event, as noted in the letter, the affidavit does not comply with Rule 15.12 of the Family Law Rules. The concluding paragraph of the letter says:

   Given the above and that you have had ample time to respond to the applicant’s material filed 4 May 2011 in the prescribed manner, the Registrar has accepted your affidavit for filing but declined to file the annexures.

10. The father made an attempt to file those annexures before me.  I refused his request to do so.  

11. As explained to him, the nature of these proceedings has been referred to in a number of earlier decisions in this Court, culminating, perhaps, in the decision of the Full Court in Ciabo & Ciabo (1996) FLC 92-651, where the restrictions inherent in the process in a list of this type were spelled out and where the Full Court gave approval to proceedings being conducted in that manner. 

12. That case was decided some years ago but the decision might be seen to have been reinforced by the decision recently of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, which spoke, albeit in a different context, of the need for stringent case management procedures to ensure the proper and efficient throughput of cases within the courts. 

13. I indicated to the husband that, to the extent that any specific documents were sought to be relied upon as crucial to his submissions, they should be specifically addressed during the course of the submissions. 

14. For similar reasons, I refused the husband’s attempt to rely upon written submissions, because on his admission, they referred in many respects to those same documents which I had refused him permission to rely upon.

15. In the course of that discussion, the husband indicated that he wanted me to “read the documents”, “but only to scan them”.  I find that a remarkable submission by a legal practitioner.  As should be well known, once a document is in evidence, it is in evidence for all purposes.  Secondly, as should also be well known, the provisions of the Commonwealth Evidence Act 1995 make specific provision so as to facilitate the proper receipt of voluminous documents in a manner comprehensible to the Court. That process is neither availed of nor referred to by the husband. 

16. As I indicated earlier, the wife is self-represented.  She is not a legal practitioner.  I explained it to her, as best I could, the restrictions inherent in this process and again referred in that context to the two authorities to which I have earlier made reference in these reasons.

17. In broad terms, these proceedings are restricted to two hours.  Most importantly, the proceedings are restricted in that no decisions can be made in respect of credit or in deciding whether one party is giving a truthful account unless the evidence before the Court is such that its veracity can not seriously be called into question.

18. In that respect, the wife points to an affidavit relied upon by her of a Mr T.  Mr T was previously employed in the accounts department of the husband’s legal firm.  Mr T is said to have some knowledge of the arrangements that were made with respect of various payments and the like.  The wife relies upon that affidavit as being evidence of the type I have just referred to.  I do not consider that this affidavit falls into that category. 

19. The husband makes plain that he would seek to challenge aspects of that evidence and perhaps the veracity of Mr T more generally.  To the extent that he seeks to do so, that is plainly a matter for trial. 

20. I seek to emphasise in these reasons that which I emphasised to each of the parties during the course of the submissions before me, namely, that in this list, this Court is not able to make credit findings except in the circumstances earlier referred to.  That is an important consideration here, as is the fact that those credit findings and, indeed, all other issues between the parties will be the subject of a trial which is due to take place in about five weeks time.

21. Despite the husband’s attempt to file nearly 1000 pages of material in this application, the gravamen of the case before me can, as both parties effectively ultimately conceded, be expressed in relatively straightforward terms. 

22. First, the wife asserts that various loans, including specifically credit card liabilities, were taken out in her name by the husband for what might loosely be described as business expenses.  She asserts that the husband had paid during the course of the relationship an amount to her through his practice and that this continued, at least briefly or in part, subsequent to the breakdown of their relationship. 

23. She asserts that this practice has ceased.  Specifically in respect of the Bank 1 credit card, she says that Bank 1 is a client of the husband’s firm, that he has a personal relationship with the manager of, I gather, the local branch, and, she says, it is passing strange that, of all the various liabilities that the parties have, and that she in particular has, it is only Bank 1 which has sought to institute legal action against her pending finalisation of the proceedings between she and the husband.

24. For his part, the husband says that this credit card expenditure and, indeed, the credit card and other credit obtained in the wife’s name, was as a result of, and in order to support, what he would assert to be profligate spending on her part during the course of the relationship and subsequently.  

25. He says that Forrest J’s order of 8 April 2011 suspending the periodic spousal maintenance payment earlier provided for, is indicative of the financial circumstances in which each of the parties find themselves, which he describes as saying that the property aspect of the proceedings will be all about the distribution of debt as opposed to the distribution of assets. 

26. That central dispute, and the markedly different picture presented by each of the parties in respect of the acquisition of credit and the spending of money, is, without doubt, plainly at the centre of the trial which is due to take place in five weeks time. 

27. So much is clear from the wife’s own material.  For example, as part of the serious factual allegations that she makes against the husband is that he has directed his female staff to pretend to be her so as to obtain information regarding credit limits, available credit and other information without her knowledge.  So, too, the wife alleges that the husband has directed her to transfer a number of specific amounts of money into his practice account which he has used for various personal purposes.

28. The husband denies this, and examples of his assertions can be seen in his affidavit, where he makes a number of allegations against the wife in respect of what I have described as her profligate spending as asserted by him.  His position might be seen summarised at paragraph 45 of his affidavit, where he says; “I spent the last six years of my marriage trying to rein in [the wife’s] lavish spending”.

29. What is clear on both parties’ cases is that, at the trial of this action, a central – indeed, perhaps, the central – issue in dispute between them for determination by Forrest J will be the means and circumstances by which debt came to exist and whether each of the parties should share equally in that debt liability or whether one party or the other should bear a greater proportion of it. 

30. It is also plain, in my view, that a number of other factual disputes will be live in relation to those liabilities.  Who is responsible for what debts will be a major factual issue.  How, when and in what circumstances debts were incurred and how, when and in what circumstances the Bank 1 credit card debt specifically was incurred is also likely to be significantly in issue. 

31. So too, and importantly for the prospects of this application, it seems to me that the respective earning capacities of each of the parties is likely to be in dispute, as is their access to assets and/or other resources that might be seen to meet the liabilities of the parties. 

32. It seems clear that there are in fact a number of different liabilities.  I have already referred to the fact that Forrest J has ordered that one set of liabilities which, I gather, are associated with the loan on the former matrimonial home, should receive priority.  The evidence would appear to reveal that there are a number of other debts of some substance, including a number of credit card debts.  I am somewhat troubled about the prospect of according priority to one creditor over another, particularly when each of those parties are, on the face of the material, third parties independent of the parties to the marriage.

33. The wife says that, in effect, she has no money.  She is attempting to start a small business as a consultant.  She anticipates filing a tax return this year for the first time, which will reveal, she says, an income of about $10,000 and that she is in very straitened financial circumstances indeed.  She says therefore that the Bank 1 proceeding with their action against her will have very significant financial ramifications, and indeed, that seems likely. 

34. Be that as it may, it seems to me, that the issue of Bank 1’s liability, the manner in which it was incurred and the respective responsibilities for it (and, indeed, any other debt) is precisely what the trial will be about in five weeks time.

35. In my view, the Court should be extremely reluctant to make orders in an application such as this in the absence of the capacity to make findings about credit when the nature and extent of the factual disputes between the parties are of the type and extent to which I have earlier made reference. 

36. That is all the more so, as it seems to me, if, as the husband asserts, and as seems to be relatively clear on the material before me, the property aspects of the proceedings to take place in five weeks time are likely to be much more about the distribution and responsibility for liabilities than the distribution of assets.

37. Another way of putting that proposition is that any injustice or inequity that might flow from the apparently independent, or the assertedly independent, actions by Bank 1 that cause prejudice to the wife can, in my view, be taken up in the order made as between the parties in respect of the distribution of liabilities. That should be done properly at a trial, when all of the evidence has the opportunity to be tested and examined within the trial context. 

38. For those reasons, I dismiss the Application in a Case filed by the wife on 4 May 2011.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 June 2011.

Associate: 

Date:  25 July 2011