MEDAPATI & REVANKA
[2017] FamCA 244
•21 April 2017
FAMILY COURT OF AUSTRALIA
| MEDAPATI & REVANKA | [2017] FamCA 244 |
| FAMILY LAW – PROPERTY – INTERIM – Spousal maintenance –Where the Husband is to pay mortgage arrears, payments and outstanding rates. FAMILY LAW – PROPERTY – Injunction – Where the Husband is restrained from selling, encumbering or disposing of any interest he has in any real property, shares, or other investments. FAMILY LAW – INTERIM – Litigation funding order – Dollar for dollar basis. FAMILY LAW – PARENTING – Where the child’s name is placed on the Airport Watch List. FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure – Where the Husband is to depose in detail to the circumstances of the sale or other disposition of any property. |
| Family Law Act 1975 (Cth) The Compagnie Financiere du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 |
| APPLICANT: | Ms Medapati |
| RESPONDENT: | Mr Revanka |
| FILE NUMBER: | BRC | 2961 | of | 2016 |
| DATE DELIVERED: | 21 April 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 18 April 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Balzamo |
| SOLICITOR FOR THE APPLICANT: | Hunter Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Mr Kilmartin Adams Wilson Lawyers |
Orders
That by way of interim spousal maintenance, the respondent husband do all things necessary to pay to the mortgage-holder, Australia and New Zealand Banking Group, in respect of the mortgage no. …69 over the property at B Street, Suburb A in the State of Queensland ( described as Lot …, Survey Plan …, Title Reference …):
(a)forthwith, an amount sufficient to discharge any and all mortgage arrears and enforcement expenses; and
(b)as and when they fall due, amounts sufficient to discharge the periodic mortgage payments and any enforcement expenses incurred on an ongoing basis.
That these orders authorise Australia and New Zealand Banking Group and any of its nominees, agents or successors holding a mortgage or other registered encumbrance over the property at B Street, Suburb A to provide any and all details of said mortgage or encumbrance including the current balance and the amount in arrears to the applicant wife and her solicitors and the wife’s solicitors are hereby authorised to provide a copy of a sealed copy of these orders to the ANZ Bank and its solicitors, Kemp Strang.
That by way of interim spousal maintenance, the respondent husband do all things necessary to forthwith pay any and all arrears of money owing to the C Town City Council in respect of rates, water and sewerage charges and any other charges levied by the said Council against the said Suburb A property and to keep such rates and other charges paid as and when they fall due.
That these orders authorise the C Town City Council to provide any and all details of said outstanding rates, water and sewerage charges and any other charges including the current amount in arrears to the applicant wife and her solicitors and the wife’s solicitors are hereby authorised to provide a copy of a sealed copy of these orders to the Brisbane City Council.
That if any of the following happens:
(a)the respondent husband fails to provide evidence to the wife’s solicitors of having made the payment to the ANZ Bank required pursuant to order 1(a) hereof by 4:30 pm AEST on Friday 28 April 2017 and, after that time, the ANZ Bank confirms that the arrears owing on the said mortgage have not been discharged as ordered ; or
(b)the respondent husband fails to make payments pursuant to order 1(b) such that the mortgage falls into arrears again and the ANZ Bank advises the wife of same; or
(c)the respondent husband fails to provide evidence to the wife’s solicitors of having made the payment to the C Town City Council required pursuant to order 3 hereof by 4:30 pm AEST on Friday 28 April 2017 and, after that time, the C Town City Council confirms that the arrears owing in respect of rates, water and sewerage charges or any other such charges have not been discharged as ordered ; or
(d)the respondent husband fails to make payments pursuant to order 3 on an ongoing basis such that the rates or water and sewerage charges owed to the C Town City Council fall into arrears again and the C Town City Council advises the wife of same;
then, at the election of the applicant wife one or more of the following properties may be sold:
(i)D Street, E Town, Queensland (described as Lot …, Registered Plan …, Title Reference …);
(ii)F Street, Brisbane, Queensland (described as Lot …, Building Plan …, Title Reference …);
(iii)G Street, H Town, Queensland (described as Lot …, Registered Plan …, Title Reference …);
(iv)I Street, Melbourne, Victoria (described as …, Plan of Subdivision …).
(e)For the purposes of sale of any of the properties to be sold pursuant to order 5:
(i)the applicant wife is appointed trustee for the purpose of sale and is hereby authorised to do all such things and sign all such documents necessary or desirable to enable the property to be sold;
(ii)the property will be listed forthwith for public auction by a reputable agent and auctioneer chosen by the wife and if not sold at auction then listed for sale at a further auction one month from the date of the first auction with the terms of this order to apply;
(iii)the reserve price for any auction will be set by the applicant wife at the recommendation of the selling agent;
(iv)the property may be sold by private treaty at a price determined by the applicant wife as might be recommended by the selling agent;
(v)the proceeds of sale of any such property will be distributed in the following manner and priority:
A.to pay all costs of sale including advertising, commissions, and conveyancing;
B.to pay any outstanding outgoings over the property including rates, utilities, and taxes;
C.to discharge any mortgage or encumbrance over the property;
D.to discharge any amount in arrears of the mortgage no. ...69 over the property at B Street, Suburb A;
E.the remainder to be distributed to the solicitors for the applicant wife, to be held on trust by them in an interest bearing account (if practicable) for both parties until further order subject to the next paragraph of these orders.
(f)Any amount distributed to the solicitors for the applicant wife to be held on trust for both parties pursuant to order 5(e)(v)E may only be distributed:
(i)by written agreement between the applicant wife and the respondent husband; or
(ii)by further order of this Court; or
(iii)to pay as and when they fall due, the periodic mortgage payments and any enforcement expenses in respect of the mortgage no. ...69 over the property at B Street, Suburb A; or
(iv)to pay rates, water and sewerage charges and other such charges levied in respect of the Suburb A property as and when they fall due.
Injunctions
That other than provided for in these Orders, until further order, the husband is restrained and an injunction hereby issues restraining the husband from selling, encumbering or further encumbering, or disposing in any way of any right, title and interest he has in any real property or in any shares in companies or businesses, any other investments, and any motor vehicles held solely or partially by the husband and including but not limited to the properties listed as follows:
In Australia:
(a)B Street, Suburb A, Queensland;
(b)F Street, Brisbane, Queensland;
(c)D Street, E Town, Queensland;
(d)G Street, H Town, Queensland;
(e)I Street, Melbourne, Victoria;
In Asian Country J:
(f)Property 1, Country J;
(g)Property 2, Country J;
(h)Property 3, Country J;
(i)Property 4, Country J;
(j)Property 5, Country J;
(k)Property 6, Country J;
(l)Property 7, Country J;
(m)Property 9, Country J;
(n)Property 10, Country J;
In North America:
(o)Property 11, Country K;
(p)Property 12, Country L;
(q)Property 13, Country L;
(r)Property 14, Country L;
(s)Property 15, Country L;
(t)2 x timeshare properties at Property 16, Country L;
(u)2 x timeshare property at Property 17, Country L;
In Asian Country M:
(v)36 per cent interest in a farm in Asian Country M, N Pvt. Ltd;
In the United Kingdom:
(w)Property 18;
(x)Property 19.
That the respondent husband forthwith cause the Motor car 1 Registration … to be delivered to the applicant wife and, until further order, the wife shall be entitled to the sole and exclusive possession and use of that motor car and to effect such delivery the respondent husband shall forthwith notify the applicant wife’s solicitors as to the location of the said motor car and its keys and take all necessary steps to permit and facilitate the applicant wife’s access to those keys and the said car so that she can take it into her possession as soon as she is desirous of doing so.
That until further order, upon his return to Australia from to time, the respondent husband shall be entitled to collect from the applicant wife for his sole and exclusive possession and use whilst he remains in Australia, the 2001 4WD motor car, to be returned by him to the possession and use of the applicant wife before his departure from Australia at the end of each such stay.
That until further order, the respondent husband is restrained and an injunction hereby issues restraining the husband from removing any funds from the Commonwealth of Australia whether by hand, cheque, wire bank transfer, or other physical or electronic means, save that he may take AUD$500 (or the equivalent thereof in foreign currency) in cash on his person each time he leaves Australia.
Disclosure
That within four weeks of the date of these orders, the respondent husband file and serve an affidavit listing all documents in his possession or control that he is required to disclose in these proceedings pursuant to Rule 13.07 of the Family Law Rules 2004 as well as all the documents no longer in his possession or control to which the duty would otherwise apply (with a brief statement about the circumstances in which the documents left his possession or control) and he shall provide copies to the wife’s solicitors (at their expense) of any such documents as requested by them as soon as practicable after such request is made.
That within four weeks of the date of these orders, the respondent husband also file and serve an affidavit in which he deposes in detail to the circumstances of sale or other disposition of any property (including money withdrawn or transferred from bank accounts) in the period since 13 June 2014, wherever such property was situate and such detail shall include but not be limited to the use of, or disposition of any proceeds of the sale or other disposition of all such property and money.
Parenting
That paragraph 3 of the Order of Judge Purdon-Sully of the Federal Circuit Court made on 5 September 2016 be amended with the consent of the applicant wife and the respondent husband by replacing the words “6.00pm to 6.30pm” with the words “6.30pm to 7.00pm”.
(a) Each of, MS MEDAPATI born … 1962 and MR REVANKA born … 1964, be restrained and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of O (the child) born … 2006 (male) from the Commonwealth of Australia.
(b)O born … 2006 (male) be and is hereby restrained from leaving the Commonwealth of Australia.
(c)It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for a period of two years.
(d)Upon expiration of the period referred to in Order 13(c) and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watchlist.
Notation
If after the expiration of the period set out in Order 13 above any parent seeks that the child’s name remain on the Watchlist for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.
Interim Litigation Costs Funding
That until further order, each time the respondent husband pays any amount of money to his Australian or Country J lawyers in respect of the professional costs and outlays he has incurred or incurs in the future in Australia or Country J for his divorce, parenting, property adjustment or family violence protection order court proceedings in Australia or Country J, he shall cause an equal amount to be paid to the applicant wife’s solicitors to be used by them in payment of any outstanding professional costs and outlays the applicant wife owes them at the time and, in this respect, any time the respondent husband’s Australian solicitors receive any such payment from the respondent husband they shall forthwith inform the applicant wife’s solicitors of that fact.
Miscellaneous
That all other extant interim applications not disposed of by these Orders are dismissed.
That each of the applicant wife and respondent husband shall do all things necessary, including signing any document that is necessary to be signed, to give effect to these orders That in the event that a party refuses or neglects to sign or execute and return a document within fourteen (14) days of presentation to them or a solicitor representing them then pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar of the Brisbane Registry of the Family Court of Australia is appointed and empowered and directed hereby to sign or execute the same in the name of that party upon presentation of such document and an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
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 Medapati & Revanka 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 2961 of 2016
| Ms Medapati |
Applicant
And
| Mr Revanka |
Respondent
REASONS FOR JUDGMENT
By an Amended Initiating Application filed in the Federal Circuit Court, Brisbane, on 30 August 2016, the Applicant wife (“the wife”) seeks final parenting orders in respect of the child O born in 2006. She also seeks orders restraining the Respondent husband (“the husband”) from taking the child out of Australia and orders putting the child’s name on the Airport Watch List maintained by the Australian Federal Police. She also seeks property adjustment orders adjusting all of the property of her and the husband 60/40 in her favour. The wife had filed her Initiating Application earlier in 2016.
In a Response filed by the husband (before the wife filed her Amended Initiating Application), he seeks to have the wife’s proceedings dismissed or, alternatively, stayed pending the outcome of proceedings commenced by him in Country J. Interestingly, given the orders he seeks on a final basis, the husband also sought interim orders that certain properties situated in Australia be sold with the proceeds to be used to discharge debt. He also sought parenting orders that included orders for the child to live with him and be permitted to go with him to live in Country J.
Existing Interim Orders
On 5 September 2016, when the parties were each represented by counsel, orders were made by consent in the Federal Circuit Court (“the FCC”). Those orders are still extant. They provide for the child to live with the wife. She and the boy live in C Town in Queensland. They also provide for the child to spend time with the husband for two hours on the Saturday and again on the Sunday of the last weekend of each calendar month, supervised at a private Children’s Contact Centre, paid for by the husband. They also provided for the husband and the child to communicate by telephone each Tuesday and Friday between 6:00 pm and 6:30 pm with the husband to make the call and the wife to make the child available to speak with his father and for the child to be able to speak with his father with privacy during such calls.
Relevantly, those orders also provided for a family report to be obtained from an appropriate expert with the husband to nominate three potential report writers and the wife to select one from that list and the husband to pay for the costs of the family report in the first instance with the wife to “reimburse the [husband] from settlement”. That report has not been obtained to this point in time.
By those orders, FCC Judge Purdon–Sully also transferred the proceedings to this Court.
The Interim proceedings before this Court
On 6 March 2017, the wife filed an Application in a Case in this Court. That was listed for hearing in the judicial duty list heard by me on Tuesday, 18 April 2017.
In that application, the wife seeks many orders on an interim basis. They include orders that, by way of urgent spousal maintenance, the husband immediately pay the arrears of payments owing to the ANZ Bank secured by mortgage over the property in C Town registered in the husband’s sole name but in which the wife and the child live. The wife also seeks default orders that provide for four properties in Australia to be sold and for the proceeds to be used to pay the mortgage repayments in respect of the C Town property and for another $250,000 of those proceeds to be paid to her solicitors by way of interim litigation costs funding.
The wife also seeks injunctions restraining the father from selling, encumbering or disposing in any way of real property interests in Australia, Country J, Country K, Country L, Country M and the UK. She also seeks the return to her of a Motor car 1 and restraint on the father taking funds out of the country. The wife also seeks full and frank disclosure from the father and an accounting of any and all money or other assets transferred out of Australia since 13 June 2014. In respect of parenting, the wife seeks an order changing the time during which the child can speak to the husband from 6:00 pm to 6:30 pm, to 6:30 pm to 7:00 pm.
In response, the husband also seeks a raft of orders. He asks the Court to make orders providing for the sale of the C Town property in which the wife and child live and for the sale proceeds to be used to discharge debt in Australia and Country J. He also seeks orders that compel the wife to remove caveats she has caused to be registered on the title of properties in Australia and Country J. He then asks the Court to stay the wife’s proceedings in this Court pending the determination of Country J proceedings he has commenced.
As for parenting, the husband also asks for an order that the existing order requiring his time with his son to be supervised be varied so as no longer to require supervision and to also be extended to two whole weekends each month as well as time during the child’s school holidays. He also seeks orders that the time during which he speaks with his son be changed from 6:00 pm to 6:30 pm to 6:30 pm to 7:00 pm.
Some relevant factual background
The husband and the wife, both Country J citizens, met in 1984 whilst working together and they started living together as a couple in 1986. They married in Country J in 1992. They have one adult daughter who is 21 years old (she lives here in Australia, too) and a son who is now 10 years old. The father is a business man.
Prior to coming to Australia, they lived in a home on a property in City P, Country J. They still have that property. It is registered in the sole name of the wife and is secured by mortgage.
All four members of the family were granted permanent residency by the Australian Government in late 2009 (according to the wife’s evidence) and the wife and the two children moved to reside here permanently in January 2011. The wife asserts the husband has lived transiently ever since, spending some time in Australia and some time in Country J, as well as other countries.
Though there is dispute between the parties as to exactly when they separated on a final basis, the wife asserting it was in 2014 and the husband asserting it was in 2015, there is no dispute that their marriage relationship is finished and each wants to divorce the other. Indeed, the husband is living in a new relationship with a woman who is living in the home in City P. They have an infant child together.
The wife alleges the father was physically, verbally, emotionally and financially abusive to her and the children during the marriage. She alleges that shortly after she and the parties’ son moved in to live in the home on the property at Suburb A in C Town in January 2016, there was an act of family violence directed at her by the husband that prompted her to obtain a temporary family violence protection order under Queensland State legislation. Amongst other things, that order prohibited the father from ever staying at the Suburb A home. The wife alleges the husband was also charged by Queensland Police with assaulting their adult daughter around this same time.
The wife filed an application for a dissolution of their marriage in the FCC in Brisbane in April 2016, around the same time as her application for parenting orders and property adjustment. The husband is contesting that application for dissolution. I understand he is contesting it on the basis that separation had not occurred twelve months before it was filed and also because Australia is not, he asserts, the appropriate jurisdiction, but rather Country J is. That contested dissolution application still awaits hearing and determination in the FCC.
In late July 2016, the temporary family violence protection order was made final with the father agreeing to such an order being made without making any admission as to the factual matters required to be found before it could be made.
In August 2016, the father filed an application for dissolution of their marriage in a Country J Court, in conjunction with which he also sought parenting and property orders. The wife asserts that was withdrawn by him in November 2016, as he had not obtained dispensation of service on her. In contrast though, the husband asserts that the wife was actually evading service of his Country J proceedings, but that he was finally able to effect proper service on her in mid-January 2017. He asserts that the wife has now instructed lawyers in Country J to appear in those proceedings on her behalf.
The husband also asserts in his affidavit filed in this Court in March 2017, that in those Country J proceedings he seeks a dissolution of their marriage, “care, custody, control and guardianship” of their 10 year old son and sole ownership of the City P property that is registered in the wife’s name. In a letter sent by lawyers acting for the husband in Country J to the wife in November 2016, in respect to parenting issues, the wife was offered “the right to visit” the 10 year old boy three times per week for one hour each time as part of a proposed settlement that included the child living in his father’s full-time care in Country J. The husband asserts his Country J proceedings are due to be heard again in May 2017. I do not know what the wife says about that.
There is no dispute that since the middle of last year, 2016, the husband has only spent time with the parties’ 10 year old son on about three occasions, being in July, September and November, supervised for two hours each time at the private children’s contact service located in C Town. That is despite the fact that pursuant to the existing orders made by Judge Purdon-Sully, the husband could also have seen the child each month since November 2016. He has not done so and has been out of Australia since mid-February this year.
The wife also asserts that the husband was required to appear in the Magistrates Court in Brisbane recently to answer charges of breaching the family violence protection order, but that he failed to appear because of his absence from the country. She asserts that a warrant was issued by the Magistrates Court for his arrest.
The wife has asserted in her evidence and through her counsel at the hearing before me that the husband has been charged in Country J by Country J authorities with criminal charges relating to alleged insider trading and that those criminal proceedings remain pending against him in that country at this point in time. Though the husband said nothing of it in his March 2017 affidavit, his solicitor informed the Court at the hearing that it is true. He also told the Court that the husband is currently in Country L with the knowledge and approval of Country J authorities who permitted him to leave Country J for his travel purposes.
The application to adjourn the hearing
After the husband’s Australian solicitors were served with the Application in a Case of the wife that was listed for hearing before me on 18 April 2017, a Response and a lengthy affidavit in support of the orders sought by the husband were filed. Then, some days later, the husband filed his own Application in a Case seeking to have the matter adjourned to a date in late June or beyond. In an affidavit filed in support of that application, the husband asserted that he would not be able to attend at Court on 18 April 2017, as he would be out of the country, travelling internationally in his role as a consultant to an overseas company. He deposed to a belief that at the date of the hearing, he would probably be in Country L or Country M and unable to appear in this Court in Brisbane. He asserted that he needs to retain this work in order to try to meet debt and that otherwise he would be totally penniless, given the collapse of his business in 2011. He asserted he wanted to attend the Court in person and expected to be available only after the end of June.
On 18 April 2017, the father’s Australian solicitor appeared before the Court on the husband’s behalf and pressed the application for the interim applications to be adjourned until July at the earliest. It is of note that the husband’s application for the adjournment was pressed with full knowledge of the ANZ Bank’s position that it will commence steps to foreclose on the mortgage it holds over the C Town property within days if the issue of the loan arrears is not immediately addressed by the husband. The wife, who was represented before me by solicitor and counsel, opposed the adjournment application.
I determined to dismiss the adjournment application and to hear and determine the competing interim applications and gave some brief oral reasons for that decision at the time. Principally, in circumstances where the husband was legally represented and had already filed a Response and supporting affidavit, and where the wife’s application was pressed as urgent because she is said to be in strained financial circumstances, I decided not to adjourn the hearing.
The Parties’ Property and Financial Circumstances
There is no apparent agreement as to the nature and value of all the property of the parties or either of them in this case. The wife alleges that the husband has kept details of their property interests very much hidden from her over the many years of their marriage. Nevertheless, she has deposed to her belief that they have substantial property interests in a number of different countries.
In Australia, the wife asserts that there are interests held in the house property at Suburb A, an apartment in F Street, Brisbane, a block of land in E Town (a small country town north-west of Brisbane), a block of land in H Town in, and an apartment in I Street in Melbourne.
The wife deposes to her belief that there are interests being held in nine properties in Country J, five properties and two time shares in Country K and Country L, some blocks of land in London in the UK and a 36 per cent interest in the company that owns a farm in Country M.
The husband, in his March 2017 affidavit filed in support of his Response to the wife’s Application in a Case, agrees that the Suburb A property is registered in his name. The parties are in general agreement that it is worth between $500,000 and $600,000. Evidence supports a finding that it secures a mortgage liability of $360,000, with a current arrears of $10,844, and the next monthly payment of $1,854.79 being due on 3 May 2017.
The husband agrees that there is an apartment in F Street, Brisbane. He does not depose to the registered proprietorship of that property. He has estimated it to be worth $150,000 and says it is unencumbered. He also agrees there is a property at E Town. He says it was purchased for $15,000 as a bush block, estimates it to be worth $30,000 and says it is unencumbered. Again, he does not depose to the registered proprietorship of that property. He says there is a H Town property purchased for $17,000 that would be unlikely to achieve that much under a forced sale, but says that his current partner (who lives in Country J) is the beneficial owner of that property, although he provides no detail as to the circumstances of such ownership. Finally, he agrees there is an apartment in Melbourne. He estimates it to be worth $500,000 and says it secures a mortgage debt of $375,000. He does not depose to the registered proprietorship of that property.
The husband attached a schedule to his affidavit filed in March 2017, in which he sets out assets and liabilities he asserts exist. The Australian properties referred to in the previous paragraph are included in that schedule (save for the H Town land). He also lists five properties in Country J. Two of those he describes as houses, two as apartments and one as land. He says one house is owned in the wife’s name and is worth $1,500,000 but encumbered by debt of $738,000. The other house, he says is jointly owned in equal shares with an unnamed third party. He says it is worth $1,500,000 and encumbered by debt of $1,293,000. One of the apartments is owned jointly in equal shares with an unnamed third party, is worth $180,000 and encumbered by $170,000 in debt. The other apartment is owned jointly in equal shares with an unnamed third party, is worth $150,000 and encumbered by $57,000 in debt. He says the land is an “abandoned property” but is worth $30,000 and encumbered by $18,000 in debt.
The husband includes in the schedule an apartment in Country K said to be worth $150,000, encumbered by $95,000 in debt. It appears that he asserts it is registered solely in his name. He includes a house in Country L said to be worth $150,000, and unencumbered by debt. It appears that he asserts it is registered solely in his name. He includes two blocks of land in the UK said to be worth $25,000 each and unencumbered. He asserts they are both registered solely in the wife’s name.
The husband includes two timeshare interests in Country L worth $5,000 each.
The husband also includes three German motor cars in Country J worth $40,000 in total, as well as two cars in Australia. They are a 4WD he says is worth $1,500 (which the wife says is in her possession and barely roadworthy) and a Motor car 1 he says is worth $11,000, which the husband has stored somewhere unknown to the Court whilst he remains out of the country.
The husband asserts credit card liabilities in Australia and Country J totalling $197,500. He asserts other liabilities in Country J to include an overdraft, personal loans, other property related loans and various creditors to total $599,333. Most significantly, the husband asserts that there are two other liabilities of $1,000,000 and $3,333,333 in respect of legal actions taken against him in Country J. He describes the liability of $1,000,000 as an “actual settlement sum” and says of the second and largest amount that there is an “appeal pending”. He asserts that the total liabilities exceed the total assets by $3,210,000.
In the affidavit, the husband does respond to the wife’s assertions about their property interests. It is enough to say that he denies ownership of some of the properties the wife lists in her affidavit as properties owned in Country J and he deposes more particularly to matters relating to others. He does the same in respect of properties the wife listed in Country K and Country L. As to the wife’s assertion that he owns shares in a company in Country M, the husband denies that he does own shares, relating that to being a “result of the changes in [his] financial affordability”. He says he is merely a business advisor not receiving payment for his consulting. The wife did attach to her affidavit filed 13 April 2017, a copy of a 2012 letter purporting to be signed by the husband subscribing to the purchase of a 26 per cent share in the joint venture company established to operate the Country M business.
The husband also says in his affidavit that until the family came to Australia in 2011, their financial circumstances in Country J enabled them to live a privileged life. They had live-in maids, a gardener, a pool cleaner, a handy man, a driver and tutors for their daughter. They also paid for private school education for their daughter.
The husband asserts in his affidavit that when the family came to Australia in 2011, he retired to a more family focused life and that he has remained out of active work life since then. However, the wife attaches to an affidavit filed 13 April 2017, a copy of a letter to the HSBC Bank in Australia dated 19 June 2014, from the General Manager of a business called Company R, in which it is said that the husband is employed on a full-time basis with that firm on a basic annual salary of CJ$1,800,000 (Country J dollars) plus 12 per cent superannuation, a company car and a driver. The wife asserts that salary equals approximately AUD$600,000. The husband’s Financial Statement sworn on 24 August 2016 filed in the FCC was attached to his affidavit filed in March 2017. In that, he declared that he owned Company R as a sole trader but that it was worth nothing and actually had liabilities exceeding assets. He asserted he was unemployed.
That same affidavit of the wife filed 13 April 2017, also attached a decision of the Child Support Agency on child support administrative review applications brought by each of the wife and the husband. The decision was made on 9 February this year. It showed that the husband had been assessed at paying child support for their son at the minimum annual rate of $414 for the second half of 2016. The wife asked for that to be increased to $13,000. The husband asked for it to remain as assessed at $414. The CSA actually reassessed the husband’s liability to the annual rate of $21,733.
The reasons record a number of relevant matters. The wife provided the CSA with a copy of a bank account statement for an ANZ bank account in the husband’s name showing a balance of $259,955 as at 27 January 2016, with deposits for the six month period preceding that date totalling $322,781. A printout from the bank website showed the balance of that account two weeks later to be only $10,836.
In the Financial Statement of the husband filed 24 August 2016, the husband declared he had $400 in an ANZ account and an account held with S Bank, Country J with a $5,000 liability attached to it. However, the reasons of the CSA reveal that the CSA had found that the husband had two accounts with other financial institutions at around that time. As at 23 September 2016, he had $73,376 in one account and at 27 January 2017, that had reduced to $14,601. As at 24 August 2016, the account in the other financial institution had a balance of $2,096 which had increased to $4,524 by 28 October 2016.
The reasons of the CSA also reveal that the CSA obtained information from a Federal Government authority responsible for monitoring transfers of money out of Australia that showed that in 2016 the husband had transferred $69,939 out of Australia over nine separate transactions. Those reasons also reveal that in July 2015, the husband represented to the ANZ bank when seeking to borrow money to purchase the C Town property that he owned seven properties in Australia worth a total of $1,855,000, four motor cars worth $91,000, $300,000 worth of superannuation and $300,000 in shares and other funds. He listed his total assets at $2,806,000 and his liabilities at $800,500. He declared his income at $620,689 gross per annum.
The CSA’s changed child support assessment for the husband commenced on 1 February 2017 to be reviewed annually.
The wife is 54 years old and has not worked since around 2000. She deposes to the fact that the husband provided her with limited financial support of $200 per week in “household allowance” payments up until January 2016, when he stopped. Since then, she has supported herself and their son with Australian Government social security benefits and some financial support from her family in Country J. The husband is in arrears of child support now in the sum of nearly $4,000. The wife has not been paying the mortgage payments in C Town property that she continues to occupy, nor the rates and household utility expenses as she has not been able to afford to pay those. She says that all of those, like the property itself, are in the husband’s sole name. She has recently learned that there are outstanding water and sewerage charges of $2,387 relating to the property.
Interestingly, the husband also says in his affidavit filed in March 2017, that in November 2016, he made an offer to the wife to buy her an apartment in C Town up to the value of $250,000, pay her an undisclosed monthly “stipend”, to buy her another family car, to pay for their son’s school and university fees until he turns 21, to pay for their daughter’s university fees, to accommodate their two children whilst they are at university, and to let her keep the two blocks of land in the UK and a time share in Country L. He says his offer included indemnifying her against any liabilities. Additionally, the solicitor who appeared for the husband at the hearing before me did inform the Court that he was instructed to tell the Court that the husband would agree to the wife using the net proceeds of sale of the C Town property to purchase herself an apartment to live in.
As I have observed, there is no dispute between the parties that the ANZ Bank, the mortgagee of the C Town property, has expressed intention to foreclose on its mortgage and take action to sell the property if the ongoing loan defalcation is not immediately rectified. Indeed, the solicitor for the husband tendered into evidence a letter dated 10 April 2017, from the solicitors for the bank making the bank’s position clear. The bank requires immediate action or the house will be sold by it. It may even be too late at this point in time.
Clearly, the continued occupation of the property by the wife and the parties’ ten year old son who goes to school in C Town is in immediate jeopardy unless that can be remedied.
The Competing Applications for Interim Orders
The C Town property
The wife seeks orders, described by her and her legal representatives as “urgent spousal maintenance orders”, for the husband to pay the arrears owing on the mortgage owing in C Town property and to pay the periodic mortgage repayments as and when they fall due. She seeks these orders knowing that the husband seeks orders for the sale of that property. Clearly, at least on an interim basis, the wife wants to be able to maintain her residence (and that of the child) in that property if she possibly can.
It seems reasonably clear that the husband’s position is that he will not take any steps to discharge the arrears and to continue to pay the mortgage repayments so as to secure the continued occupation of the wife and their son for the immediate future. I understand his position to be that he just cannot afford to do that.
I cannot say that I accept that is actually the case. Certainly, if all of the husband’s evidence is truthful and he is able to provide reasonable explanations in respect of many of the issues upon which explanation is currently required, it might be that he does not have the immediate and ongoing capacity to make those payments. However, the evidence currently before me raises more questions about the husband’s real financial position than it answers and I am left with grave doubts about the honest presentation of the husband’s financial circumstances such that I am of the view that he might very well have the capacity to make the payments that would bring the mortgage arrears up to date and continue to keep it up to date, as well as paying the rates and the utility payments. His own evidence of his offer to the wife of late last year would suggest he does.
I am certainly sufficiently satisfied that the wife does not have the capacity to make those payments having regard to the fact that her only income comes in the form of social security benefits, the fact that she has not been employed for around 17 years, the fact that she has sole responsibility for the day to day care of their 10 year old son, and the fact that she has no immediate access to other capital from which she could make such payments. The evidence is that the property in Country J that is registered in her sole name is already subject to dispute in Country J and unable to be sold or further encumbered by her at this time.
The husband says that the C Town property is worth $525,000 (although his solicitor said at the hearing that it might be worth as much as $600,000) and the evidence is that there is currently $360,844 owing to the mortgagee bank. There is an amount of around $2,300 owing on water and sewerage charges on the property and, no doubt, outstanding rates owing. Accordingly, there could be anywhere between around $150,000 to $220,000 equity in the property.
Asserting that he cannot make the payments on the mortgage over the C Town property and knowing that the wife seeks to sell one or more of the other Australian properties of the parties to meet those payments, the husband argues that such a course as the wife proposes does not make good sense. He says that the forced sale of the other Australian properties would realise a net amount of $262,000 at best. He submits, as I understand his position, that it does not make sense for the wife to try to retain the C Town property in circumstances where the net sale proceeds of all of the other properties in Australia will not discharge the mortgage in C Town property and she would still be left with a mortgage debt. He makes this argument, I understand, also in the context of his argument that they have a net debt position in any event if the overseas properties and liabilities are all taken into account.
Again, that may very well be correct if the husband’s evidence is all truthful and that is the ultimate position that the husband and the wife find themselves in. Yet, as the wife asserts, full and frank disclosure has not been made by the husband to her or the Court to this date. That much is clear on the evidence I have seen to this point in time. The wife asserts and I accept that she simply cannot make any sound decisions about property adjustment without the full and frank disclosure from the husband that he is obliged to give. At this point in time, I say respectfully, I do not have confidence that the husband intends to provide such full and frank disclosure.
In the meantime, he urges a course that would force the wife and their son out of their C Town home in which they have been living for over eighteen months, where he and the wife have two other apartments in Australia, one of which remains empty at the husband’s sole behest so he might have a place to stay in the event that he returns to Australia in the future. In that regard, I cannot say that I am satisfied that he will, in fact, return to Australia in the future.
I am quite satisfied that in all these circumstances the wife is in immediate need of financial assistance. I consider it proper to make orders pursuant to sections 74 and 77 of the Family Law Act 1975 (“the Act”) that require the husband to immediately bring the mortgage debt secured over the C Town property back within its terms and to keep it that way, and also to immediately pay all arrears of rates, water and sewerage charges owing in respect of the property and to keep them paid as and when they fall due.
I consider it proper and just to make further orders, as sought by the wife, that give her the right to communicate with the bank in respect of these liabilities and that give her the right to sell any or all of the other Australian properties and to use the proceeds of sale to discharge the arrears of mortgage debt secured over the C Town property and to keep the loan in order on an ongoing basis, whilst final property adjustment orders are yet to be determined as between her and the husband. I also consider it proper for her to have the right to communicate with the C Town City Council about the rates and other charges levied from time to time against the property and to be able to pay those as they fall due on an ongoing basis. In that way, the continued occupation of the C Town property by the wife and the son can possibly be secured pending further order or earlier agreement reached between the husband and the wife in this matter.
Accordingly, it follows that I will dismiss the husband’s application for interim orders that the C Town property be sold and also his application for orders that the wife cause caveats to be removed over the Australian properties. My orders will make her sole trustee for the sale of the Australian properties in the event that the husband defaults on compliance with the order that I make for him to immediately meet the payments that are all currently due. In that event, no doubt, the wife will cause the caveats to be removed as and when she needs them to be removed to sell the properties.
Injunctions
The wife seeks injunctions restraining the husband from selling, encumbering or disposing of in any way the properties in Australia, Country J, Country K and Country L, and the UK, as well as the interest she says (but he denies) he has in the business in Country M.
There is evidence before the Court that properties have been disposed of by the husband in Australia and other countries in recent years without the wife having any knowledge about the circumstances and the use of the proceeds. These matters remain unexplained by the husband. There is evidence that he transferred money out of Australia over the last year or more. That remains unsatisfactorily explained by the husband. There is evidence that he tried to sell the property in City P that is registered in the wife’s sole name without her knowledge or consent. That remains unsatisfactorily explained by the husband. There is evidence that the husband forged the wife’s signature on documents used in transactions relating to property. That remains unsatisfactorily answered by the husband.
I consider it just and convenient to grant interim injunctions as sought by the wife in this case, pursuant to s 112(3) of the Act, with a view to protecting her interests in obtaining a just and equitable property adjustment in the final resolution of these proceedings. I will grant such injunctions. Additionally, the wife seeks an injunction restraining the husband from removing money from Australia, save for a reasonable sum of cash, sufficient for the purposes of travel, that he might have on his person as he departs the country. For the same reasons as just outlined, I will make such an order on an interim basis.
The Motor car 1
The evidence supports findings that the parties had a number of motor cars in Australia prior to January 2016, and that after January 2016, the wife retained a 4WD motor car in her possession and the husband retained a Motor car 1 in his possession. The husband, as I have already observed, asserted in August last year that the Motor car 1 was worth $11,000 whilst the 4WD was only worth $1,500.
The wife in her evidence asserts that the 4WD is no longer a very reliable car and she seeks an order that she have the use of the Motor 1 instead, at least on an interim basis. She requires a reliable car to drive herself and the parties’ son around on a day to day basis in C Town.
64.The husband’s submission was that he and the wife agreed through the family violence protection orders made in the Magistrate’s Court for him to retain the Motor car 1 and for her to retain the 4WD. It was submitted that he uses the Motor car 1 when he is in Australia. It follows from that submission that when he is not in Australia, such as from February this year until now, this more reliable car is sitting somewhere not being used.
65.I am quite satisfied in those circumstances that the just and proper order to make in these interim proceedings is for the wife to have the sole and exclusive use and possession of the Motor car 1 and to make the 4WD available to the husband to use during such time as he is in Australia with it being returned to her when he leaves Australia from time to time. I will order that.
Disclosure
The wife seeks disclosure orders and orders for the husband to account for all money and other property transferred from Australia since 13 June 2014.
As I have acknowledged previously in a number of judgments, case law requires parties to property adjustment proceedings to make a full and frank disclosure of their financial position. (Oriolo & Oriolo (1985) FLC 91-653; Black & Kellner (1992) FLC 92-287; Weir & Weir (1993) FLC 92 – 338).
That case law is reinforced by the Family Law Rules. Parts 13.1 and 13.2 of those Rules set out a party’s disclosure obligations. Rule 13.01(1) of the Family Law Rules provides:
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. (my emphasis)
Rule 13.04(1)(g) of the Family Law Rules provides:
A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:-
…
(g)any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim;
…
(ii) since the final separation of the parties. (my emphasis)
Rule 13.07 of the Family Law Rules provides the duty of disclosure applies to each document that:
(a) is or has been in the possession, or under the control, of the party disclosing the document; and
(b) is relevant to an issue in the case.
The Explanatory Statement, issued in 2004 by the authority of the Judges of the Family Court of Australia, states, inter alia:
Rule 13.01: General duty of disclosure
This rule sets out the general duty of disclosure and provides that it applies from pre-action procedures to the finalisation of the case.
This rule reinforces these principles:
(a) the duty applies in all cases;
(b)the duty applies to the disclosure of information and documents; (my emphasis)
(c)it is a duty which the Court regards as very important and will scrutinise and enforce;
(d) it is a continuing duty starting with the pre-action procedure.
The importance of the duty of disclosure is emphasised in the Rules by the introduction of the following:
1.the parties are required to read the duty of disclosure before swearing the affidavit in the Form 1 and Form 1A;
2.the parties are required to acknowledge the duty of disclosure and give an undertaking as to their compliance with it at a certain stage of a case. Breach of this undertaking may be punishable as a contravention of a parenting order under the Act (section s 112AA (c) and 70 NB (c)) and may amount to contempt of court; and
3.Rule 13.14 which is intended to send a clear message that the Court will take a serious view of non-compliance with the duty of disclosure and the Rules.
Rule 13.04: Full and frank disclosure
This rule was formerly O17 r3 (FLR 1984) which has been extended to ensure it is contemporary, relevant and useful in relation to complicated financial structures as well as not so complicated arrangements.
Rule 13.07: Duty of disclosure - documents
This rule imposes a duty on a party to disclose documents in the party’s possession or control that are “directly relevant” to an issue. Gone are the days where the Court will allow “general discovery” ie “an order that a party produce all documents in the party’s possession or control relating to the issues in dispute.”
This follows the lead taken in the United Kingdom and Queensland in eliminating the extremely wide test established by The Compagnie Financiere du Pacifique v. The Peruvian Guano Company (1882) 11 QBD 55 which required discovery of documents which may (not must) either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. “ The results of this test was to make virtually unlimited the range of potentially relevant (discoverable) documents which parties were obliged to review and list forcing the other party to read, against the knowledge that only a handful of such documents would affect the outcome of the case. It is a monumentally inefficient and costly process.” (Lord Woolf: Access to Justice Final Report 1996)
The requirement to disclose “directly relevant” documents will introduce a higher standard of assessment in the sifting and examination of a client’s documents. This will oblige parties and lawyers to focus attention at an early stage upon the real issues in dispute and the documentary evidence that goes directly to those issues.
I will make disclosure orders in this case, satisfied that the husband has not provided full and frank disclosure to date. I will also order that he depose in detail in affidavit form so as to account for all property and money sold, disposed of or used up by him since 13 June 2014, wherever that property or money was situate.
Interim Litigation Costs Funding
In addition, the wife seeks orders that would provide for $250,000 of the proceeds of sale of the parties’ properties in Australia to be used by her for payment of her legal costs and outlays in these proceedings. I understand that, having regard to the evidence, to be in respect of costs and outlays already incurred and likely to be incurred in the future.
In support of this application, she relies on evidence she has deposed to in her affidavit filed 6 March 2017, and an affidavit of her solicitor filed on 6 March 2017. The wife deposed to having incurred costs of $25,833.19 with one firm of solicitors, $2,272.05 with another firm, and $121,618.11 to 24 February 2017 with her current solicitors. She deposed to having actually paid $33,272 of those costs already incurred and having no capacity to meet any further fees. She also deposed to having been advised by her lawyer that he cannot continue to act for her without payment on an “up-front” basis. A little later in the same affidavit, the wife said:
I am advised by my lawyer that while his firm has carried my costs and outlays until now that this cannot continue indefinitely in these proceedings.
The wife deposed also to not being entitled to legal aid or able to secure any form of litigation lending facility.
The solicitor, in his affidavit, deposed to the wife’s costs and outlays with his firm to that time being $130,518.11. He anticipated that the costs up to the conclusion of the interim hearing would be $25,669 and to the conclusion of the entire proceedings would be a further $56,463 again, but not including disbursements for things such as valuations.
The solicitor said that the wife instructs him that the net asset “pool” is valued at approximately $4,274,369 and that the superannuation interests are worth $233,000. He expresses the opinion that the wife can expect to receive at least 50 per cent of those two amounts.
He also said in that affidavit that he has advised the wife that “she will have to pay costs pursuant to the Retainer Agreement between the interim hearing and a final trial, and that the firm’s policy is that such fees be paid on an up-front basis”. He attached a copy of a signed retainer agreement, saying it was the retainer agreement between his firm and the wife, signed in August last year. That retainer agreement says that accounts will be issued on a monthly basis and will be payable within fourteen days of the date of issue. It says that if the account remains unpaid for thirty days from the date of issue, the firm may charge interest calculated in a particular way. The agreement also includes an acknowledgement that a lien over the wife’s documents may be exercised until the account is paid in full.
The husband opposes any litigation funding order being made. He said in his affidavit filed in March 2017, that he cannot afford legal representation either and that he has recently been preparing his own court documents and only retaining solicitors to appear for him at Court. By inference, he is paying those solicitors for their work as they perform it and bill him for it.
This is an extremely difficult determination. If the instructions the wife’s solicitor says he has from the wife about the net value of the property and superannuation interests prove correct, and the solicitor’s opinion about the likely entitlements of the wife also prove correct, then it would seem that a payment of $250,000 to the wife as a partial property adjustment made on an interim basis would be well within the bounds of her likely just and equitable property entitlements. However, the difficulty confronting the Court at this point in time presents on a number of fronts. Firstly, the husband contends that the parties’ real financial position is one of net debt in the order of $3,000,000. If that is correct, it might very well prove to be most unjust and inequitable for the wife to have received $250,000 at this interim stage that would not be able to be repaid by her to the pool to be otherwise used in meeting legitimate debt. Secondly, serious questions arise around the enforceability of any order that the wife receive entitlements beyond the value of all of the property and superannuation interests currently found in Australia in any event. So, even if the husband’s assertions of significant net debt in this case prove wrong, a best case scenario for the wife might very well still be that all she is able to actually achieve through this Court and its enforcement powers is to obtain and retain all of the property or money that is still held in Australia. As the evidence currently stands, that might not be that much greater than $250,000.
As the evidence currently stands, I am not minded to make the interim litigation funding orders that the wife seeks. Doing so would, in my view, potentially deny the husband a just outcome if he is able to prove to the wife and this Court that indeed the parties’ financial circumstances are as dire as he asserts.
At this point in time, I intend to give the husband, by my orders, an opportunity to do that, on a prima facie basis, through the disclosure process and by the provision of the affidavit deposing in full detail to the disposition of money and property since June 2014. If the husband does not comply with the orders obliging him to pay the mortgage and rates arrears and to keep those paid, then the Australian properties might all be sold by the wife and the proceeds of sale used to reduce the mortgage debt in C Town property that will be retained pending further order and otherwise safely invested. That way, the property pool of the parties (at least that which is within this jurisdiction) is properly preserved, albeit in slightly different form to what the husband wants, pending finalisation of the proceedings. If he is able to prove the case he currently makes, he might very well succeed in obtaining an order that even the C Town property be sold and the proceeds used to pay debt of the parties. If that is the case, then the wife could have to look elsewhere for funds to pay her lawyers.
However, if the wife and her lawyers are confident of their position, then the lawyers may continue to act for the wife and look to her ultimate property settlement entitlements for payment pursuant to the terms of their retainer agreement. If the husband does not comply with his disclosure obligations and the orders I make requiring him to account for all property disposed of by him since June 2014, then the wife will, of course, be at liberty to apply again for such orders, interim and final, pertaining to the Australian property as she may be advised to seek.
I will however, make a ‘dollar for dollar’ costs order in the meantime. It is clearly not just in the circumstances for the husband to be able to pay any amount to his own lawyers whilst the wife cannot. Any amount the husband pays to his Country J lawyers and/or to his Australian solicitors on account of professional legal costs and outlays in respect of divorce proceedings, property adjustment proceedings, parenting proceedings, or family violence protection order proceedings in either country will need to be matched by an equal payment by him to the wife’s Australian solicitors to be applied towards her costs and outlays. I will make such an order pursuant to section 117 of the Act satisfied that such is a just order, in circumstances that justify doing so.
Parenting Orders
There was agreement between the parties that the existing parenting order, made by Judge Purdon-Sully on 5 September 2016, be amended by changing the times referred to in paragraph 3 of the order to “6:30 pm and 7:00 pm”. I will make that order with the consent of the parties.
I remain far from persuaded by the husband’s evidence or any submissions made on his behalf by his solicitor that the best interests of the ten year old boy require a change in the existing parenting orders at this point in time. It is unclear that the husband has any real intention of actually returning to Australia in the near future and I have grave doubts that he will. I am satisfied, given the infrequency and irregularity with which he has spent any time with the child over the last year, and given what I perceive to be an unacceptable flight risk, that the requirement for supervision of the husband’s time with the child (in the event that the husband does return to Australia) must be maintained at this point in time. It is to be noted again that the husband seeks an order from a Country J Court in proceedings that he maintains there for the child to live with him in Country J. His offer to the child’s mother for time with the boy was for three visits of one hour per week. He clearly does not much value the child’s relationship with the wife. Furthermore, I have not had the benefit of the family report that has been ordered to be obtained and I consider any other change in the parenting orders before having the assistance of an expert’s opinions in respect of the dynamics of the relationships in this family simply premature.
One additional order that I do not consider premature though is an order placing the child on the Airport Watch List. I will make such order as an interim order so as to protect his residence in this country until the parenting proceedings can be finalised.
The Husband’s Application for a Stay of the Proceedings
The husband’s solicitor pressed the husband’s application for a stay of the wife’s proceedings. I considered this part of the husband’s case rather difficult to understand and comprehend. With respect to the husband and his solicitor, the case was not very well articulated. I also find it very difficult to understand why the father would want to stay parenting proceedings in this jurisdiction when the subject child is within this jurisdiction and there is an extant parenting order of a Court having jurisdiction in favour of the wife, just because he wants to continue with proceedings for parenting orders and property adjustment in Country J. Whilst this Court exercises jurisdiction with respect to the parenting proceedings and the child remains in this country, it is unclear to me how the father thinks obtaining a parenting order in his favour from a Country J Court might assist his parenting position.
No submission was made on behalf of the husband that this Court does not have jurisdiction to hear and determine the wife’s parenting orders application or her property adjustment application. In reality, of course, the husband could hardly seek interim parenting and property orders himself and then assert that the Court does not have jurisdiction to hear and determine such applications. In any event, there can be no doubt that the Court does have jurisdiction. The wife is a permanent resident of Australia and has lived here for at least six years. The child is also a permanent resident of Australia has also lived here for at least six years and is currently resident here. The parties own real property here. This Court’s jurisdiction is established.
I considered initially that as the husband had commenced divorce, property and parenting proceedings in Country J after the wife had commenced these proceedings in this Court, that the husband was going to argue that this was a clearly inappropriate forum for the determination of the parties’ disputes arising out of the breakdown of their marriage such that their continuation here would be vexatious and oppressive to him (see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559 – 60; Henry v Henry (1995) 185 CLR 571 at 577, 586-7). However, the solicitor who appeared for the husband readily conceded that he could not argue that this was a clearly inappropriate forum having regard to the authorities. Accordingly, he did not try to make that case for the husband. Once that concession was made, very little was said in support of the application for a stay, though it was still pressed.
Unable to identify any grounds upon which the husband actually asserts that these proceedings should be stayed or upon which the Court would stay them of its own motion, I am left to dismiss the husband’s application.
Having expressed a little surprise that the wife had not made an application for an anti-suit injunction to restrain the husband from continuing with his proceedings in Country J, counsel for the wife asked during the hearing of these interim applications whether the Court would entertain an oral application for such an injunction. The husband’s solicitor opposed this. Given the nature of such an application, I considered the husband had a right to consider any such application on proper notice and to prepare any argument he wished to advance. I declined to entertain an oral application.
For all of the above reasons, I make the orders set out at the commencement hereof.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 April 2017.
Associate:
Date: 21 April 2017
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