McElvery and McElvery

[2009] FamCA 985

FAMILY COURT OF AUSTRALIA

MCELVERY & MCELVERY [2009] FamCA 985

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

Zschokke & Zschokke (1996) 20 FamLR 766

APPLICANT: Mr McElvery

RESPONDENT: Ms McElvery

FILE NUMBER: BRC 5385 of 2007

DATE DELIVERED: 15 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: MURPHY J

HEARING DATE: 15 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Billimoria Town Agent

Schultz Toomey O’Brien

THE RESPONDENT: In person

Orders

1. The matter be adjourned before Justice Murphy to 2.15pm on 18 December 2009 in the Brisbane Registry of the Family Court of Australia.

2. Within twenty-one (21) days of today, the husband shall send to the wife and at the same time, file by sending via email to the Associate to Justice Murphy:

   a.a completed document in table form in accordance with Annexure 1 to these orders;

   b.a completed document in the form of Annexure 2 of these Orders.

3. Within fourteen (14) days of the date of these orders the husband shall serve upon the wife a document in the form of Annexure 1 to these orders, specifying under the heading “Document” all such documents which, he asserts, should be, but have not been, produced by the wife.

4. Within seven (7) days of service of the document in order 3 above, the wife shall serve on the husband and file by sending via email to the Associate to Justice Murphy at the email address earlier provided in these Orders:

   a.the husband’s Annexure 1 document, provided to her pursuant to paragraph 3 above, duly completed by her;

   b.a document in the form of Annexure 2 to these Orders, duly completed by her.

5. Each party shall compile, serve on the other by 4.00pm on 11 December 2009 and contemporaneously file, by sending via email to the Associate to Murphy J, a document which sets out their respective assertions as to the matters which remain to be addressed so as to allow this matter to proceed to final hearing.

6. In the event that the parties agree to a mediation they shall:

   a.Forthwith, by jointly signed communication sent via email to the Associate to Murphy J, notify the time and date of such mediation and the name of the mediator; and

   b.Shall, as part of such mediation, jointly request of the mediator that he or she provide to the parties at its conclusion, a certificate confined solely to:

   i.the fact that the parties each attended the mediation; and

   ii.whether the matter was resolved or not resolved; and

   iii.whether, in the latter event, any further mediation has been agreed upon.

   c.Upon production of that certificate from that mediator, the parties shall, by joint communication, send via email to the Associate to Murphy J, a copy of that certificate.

7. The wife be released from the undertaking given by her on an unspecified date in February 2008 and, in lieu thereof, IT IS ORDERED THAT the wife be restrained and an injunction issue restraining the wife from dealing with the proceeds of sale of a property situated at P in the State of Queensland pending compliance with the paragraphs of these Orders.

8. The wife shall do all such things and sign all such documents as are necessary so as to ensure that, from the proceeds of the sale of the property at P:

   a.There be paid all necessary reasonable commission and other costs of sale;

   b.There be paid the amount owing pursuant to the mortgage to the Westpac Bank;

   c.There be paid the balance to a trust account, in the joint names of the parties, with a firm of solicitors agreed to between the husband and the wife within five (5) days of the date of this order, and in default of such an agreement, within such time frame, to the trust account of the solicitors for the husband.

IT IS FURTHER DIRECTED THAT

1. The parties shall each do all such things and sign all such documents as are necessary to authorise and direct the solicitors with whom the trust funds are deposited pursuant to paragraph 8(c) of these orders, to invest the said funds in the joint names of the parties in a reputable investment agreed to between the parties within five (5) days of the solicitor’s receipt of the money, or, failing agreement, decided upon by those solicitors.

2. The application by the wife for the issue of subpoenae is adjourned to 18 December 2009, and the wife shall provide to the solicitors for the husband a list of those subpoenae sought to be issued by her.

3. Within twenty-one (21) days of the date of these orders, the wife shall file and serve an affidavit in support of her application seeking the payment to her from the funds otherwise invested pursuant to these orders, a sum in respect of her reasonable living expenses and shall, in that affidavit, specify the amount sought by her and the basis for claiming such sum.

4. The hearing of the application referred to in the previous paragraph of these Orders, shall be adjourned to 18 December 2009.

5. In the event that a Notice of Assessment issues in respect of any capital gains tax payable in respect of the sales of the properties referred to in the undertaking given by the wife in February 2008, the husband shall show cause, by forwarding to the wife in writing his reasons, why such sum should not be paid from that trust account to the Commissioner for Taxation.

IT IS FURTHER DIRECTED THAT

1. A copy of the Ex Tempore Reasons for Judgment of Murphy J of today in this matter be prepared expeditiously and forwarded to both the wife and the solicitors for the husband.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5385 of 2007

MR MCELVERY

Applicant Husband

And

MS MCELVERY

Respondent Wife

EX TEMPORE

REASONS FOR JUDGMENT

1. As long ago as 20 June 2008, orders were issued by me, at that time by consent, which were intended to have this matter proceed expeditiously to a hearing or a resolution via an alternative dispute resolution process.  Indeed, that order made, now some 18 months or so ago, included a notation to the effect that consequent upon pleadings provided for within those directions, the parties were to engage in mediation or other ADR process by consent, which such process was to occur prior to 30 September 2008. 

2. It is to be observed that the mooted ADR process was to occur well over 12 months ago. 

3. Subsequently, I made orders on 13 February 2009 that the wife file the defence contemplated by the earlier orders, and in the event that the defence was not filed and served by a specified date, that the wife’s claim be struck out, and that the matter be listed for final hearing on an undefended basis. 

4. I also ordered at that time that the parties confer with a view to reaching consent about the directions that were necessary to enable the matter to be heard and determined at a trial, and listed the matter for further mention before me on 16 March. 

5. On 23 March, I made a number of orders.  Those orders included consent directions with respect to the matter proceeding to a hearing.  Those directions included the service of affidavits and an order for the provision of a list of documents intended to be relied upon by the parties. 

6. Upon receipt of those consent directions, I ordered that the matter be set down for final hearing for not more than two days, commencing 9 September 2009.  As a result of my commitments interstate, the trial was administratively adjourned to 15 and 16 October 2009.

7. The orders of 23 March 2009 provided for there to be a compliance check on a date to be advised.  That compliance check was held on 18 August 2009, and, apart from the payment of the hearing fee, there was wholesale non-compliance with the directions.  The matter was accordingly mentioned before me today, which was to be the first day of the scheduled two-day trial. 

8. Today, the wife, who now appears for herself, read an amended response, filed on 12 October 2009, which such response was accompanied by an affidavit. 

9. The central issue, apparently, between the parties can be seen exemplified in the amendments to paragraph 2 of the final orders sought by the wife.  The order now sought provides:

   That as and by way of property settlement, each party retain those assets they have disclosed to date and be responsible for all liabilities in their respective names in which they have an interest or for which they are liable. Once full disclosure had been produced by the husband, settlement will be re-determined [bold indicates additions].

10. The same document seeks a number of interim orders, including “Full discovery (disclosure) completion required from the applicant.” There is then listed some 28 separate documents, or sets of documents, in respect of which disclosure is sought. 

11. It is important to observe that the Amended Response and the accompanying affidavit was served on the solicitors for the husband only last night.  The husband appears via town agent this morning.

12. The interim orders sought by the wife also include an order that she be released from an undertaking given by her, apparently in February 2008, which appears as an annexure to her affidavit filed on 12 October 2009. 

13. The precise status of that undertaking remains obscure, but it is plain that the wife, quite property, considers herself bound by that undertaking, and in respect of the obligations created in it to not sell property without notice to the husband. She advises me that she has complied with that obligation, and it is not otherwise said on behalf of the husband to the contrary.

14. In terms of the proceedings today, paragraphs 1 and 3 of the undertaking, I am told by the wife, have effectively become redundant; those properties have apparently been sold and, by reason of the amount owing to financial institutions, no equity resulted from the sale.  The property listed at paragraph 2 of the undertaking situated at P, is subject to contract which is, I am told, now, unconditional and due to settle on 23 October 2009. 

15. The live issue then is paragraph 4 of the undertaking, by which the wife promises that, upon sale, and after the payment necessary sale costs and commissions, and the payment of the Westpac mortgage attached to the property, any net proceeds of sale remaining be held in trust and invested by the wife’s then solicitors until the property settlement is finalised.

16. Discussion by the wife from the bar table indicated a number of matters relevant to that undertaking and the relief sought by her. 

17. The wife is no longer represented by the solicitors named in the undertaking. She seeks that any moneys invested, be invested otherwise than through the solicitors for the husband, notwithstanding the fact that any such investment would be made to a trust account and in the joint names of each of the parties. 

18. That aspect of the matter has effectively been dealt with in the terms of the orders that I have indicated which provide for the parties to agree upon solicitors, and in the absence of agreement, that the solicitors for the husband shall so invest the sums.

19. A second and more pressing matter raised by the wife was adduced only through discussions between the wife and myself.  During those discussions, it emerged that the wife sought, by way of an interim order, an order that might be seen to be embraced by paragraph 11 of the orders for final relief sought by her in the amended response to which I have just referred.

20. In effect, the wife seeks a sum of money from the net proceeds of sale in order to meet her alleged reasonable living expenses.  The amount of money is not articulated either in the paragraph to which I have referred in the application for final relief, nor in discussions emanating from the wife at the bar table.  She indicates, again from the bar table, that she is not in remunerative employment and needs that money to live on.

21. It is not clear on the face of the material, and remains unclear, even after discussion with the self-represented wife, whether the order sought by her is an order for interim maintenance or, for example, an order for partial property settlement. 

22. I have, on more than one occasion today, sought to emphasise to the wife that I cannot provide her with legal advice.  The claim by her, if a claim for maintenance, needs to be brought in a way specified by the Rules.  That is not merely a matter of legal form or technicality;  rather the provisions of the rules relating to applications for maintenance have a number of specific requirements directly relevant to the determination of the application.  The filing of an up-to-date Financial Statement that sets forth alleged needs is but one example.

23. So, too, if an application is made for what might conveniently be described as a partial property settlement, the law requires certain matters of an applicant, not the least of which is the requirement to satisfy a court that any such sum awarded can, as it were, be made “reversible” at the ultimate hearing of the application for settlement of property (as to which, see Zschokke & Zschokke (1996) 20 FamLR 766).

24. Not only is the nature, form and quantity of the orders sought by the wife unspecified, but also, as I earlier indicated, the application by her, even in its current form, was not received by the solicitors for the husband until last night. 

25. It is axiomatic that they have not had a proper opportunity to respond to what I have gleaned to be the substantive nature of the application made by the wife.  It is, of course, appropriate that they be given an opportunity to do so and I have indicated orders accordingly.

26. The application for disclosure is of a type increasingly, and depressingly, common in this court.  The obligations on parties to a financial case cannot be any clearer set out in the Rules. 

27. It seems to me a common misconception that parties can satisfy their obligation of disclosure if they provide to the other party documents in their possession.  That is not the law, nor is it the requirement. 

28. Chapter 13 of the Rules makes plain what the obligations of a party are.  In particular, Rule 13.01 makes it abundantly plain that:

    Each party to a case has a duty to the court, and to each other party, to give full and frank disclosure of all information relevant to the case in a timely manner [emphasis added].

29. The obligation expressed generally in that Rule is underlined in further specific Rules.  For example, Rule 13.04 provides a number of specific matters about which a party must make disclosure.  A further specific instance of that general duty to disclose “of all information relevant to the case” is the specific obligation to disclose documents. (See Rules, Part 13.2).

30. Within the obligation to disclose documents is also plainly evident an obligation to disclose documents not only within the possession of a party, but also within his or her control. 

31. In outlining those obligations in what I hope are clear and plain terms, I do not at all suggest that I have found that either party in this case has failed to make disclosure.

32. That is certainly the allegation made by the wife.  I have not heard what the husband’s response is to that allegation, and I make it perfectly plain that, until such time as that issue is determined, I am not in any way suggesting, that he has failed in his duty of disclosure as earlier as set out. 

33. I make it equally plain that I am not suggesting, in outlining that duty in the terms that I have, that the wife has failed in her duty of disclosure. 

34. However, it is important in this case (and, sadly, seems to be increasingly necessary generally) to underline and emphasise in the plainest possible terms that the duty of disclosure of parties in this court does not begin and end with the provision of documents by one party to the other.

35. The service of the application occurring late last night creates, potentially, difficulties for the husband in addressing the specific issues there raised, and I propose by my orders to give him an opportunity to properly respond.  I have determined that the best way in which I can do so and, at the same time, to attempt as best I can to put this matter back on track, either for a mediation (which I hope the parties will avail themselves of and which, in turn, I hope fervently will bring about a settlement of this matter) or for a trial, is to have the husband specifically address each of the specific matters raised by the wife in her amended response. 

36. To that end, it seems to me the easiest and most convenient way for that to occur is in tabular form, and I will attach to the orders made by me in this case a document which I will require the husband to complete. 

37. The issue of his disclosure or non-disclosure can then be addressed at the adjourned hearing to be held by me in approximately eight weeks’ time.

38. In a similar vein, Mr Billimoria, who appears as town agent for the husband today, suggests that there may be issues relating to disclosure on the part of the wife, and the orders that I make will incorporate a similar requirement to produce in tabular form, any assertions by the husband in respect of the wife in that respect, and the wife’s response thereto.

39. So, too, despite the fact that I have ordered pleadings in this matter, and despite the fact that it has a long history and that the parties have previously reached consent directions, as I address the proceedings before me today, I have no clear idea - indeed, no real idea at all - of “the property of the parties, or either of them”, or what each asserts in respect of their claim pursuant to Section 79. 

40. I have, accordingly, determined that each party shall complete a document which I have provided to them, and which again, will be annexed to the orders made by me, that requires each of them to set out the property, and their assertions in respect thereof.  Whilst the document is provided in hard copy attached to the orders, I will, upon the issuing of the orders, have that document forwarded via email in Word format to each of the parties, so that it can be completed without the necessity for significant attachments.

41. This matter needs to be brought to a conclusion as soon as possible.  I consider that the document just referred to, should assist not only the court, but also any mediator charged with the responsibility of attempting to resolve this matter between the parties.

42. The final matter the subject of the application before me by the wife is the issue of various subpoenae. 

43. Whilst technically, that matter might not be the subject of proper response by the husband, I note in the list of subpoenae required that two subpoenae, it seems, are sought as against the husband’s brother on the basis of assertions made in respect of business dealings between the two of them, and similarly, a subpoena is sought to be issued in New Zealand against the Westpac Bank in that country. 

44. It may be (and I sincerely hope it is the case) that the orders made by me in respect of disclosure may obviate the necessity for the issue of those subpoenae. 

45. In any event, it seems to me that a consideration of whether those subpoenae should issue ought be left until the husband’s response in respect of disclosure is received.  That is, in my view, particularly so in respect of the issue of a subpoenae to an individual such as the husband’s brother, as distinct from a large commercial organisation. 

46. Because of those considerations, I have determined to adjourn the issue relating to the issue of subpoenae until 18 December 2009.

47. The further additional order I will make is an order obliging the parties to list for the court those matters which, having both complied with the orders earlier indicated, they each assert remain to be addressed before this matter can be listed for a final hearing, if that is what is required to bring it to an end. 

1. It seems to me appropriate that I should make that order, if for no other reason than the protracted history in attempting to have this matter ready for trial to which I have earlier referred.  I will direct, so as to explain the somewhat unusual orders made by me today, that a copy of my reasons in this matter be prepared and expedited and forwarded to both the wife and the solicitors for the husband.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  20 October 2009