MIGHELL & FIELD - [2012] FMCAfam 950

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MIGHELL & FIELD

[2012] FMCAfam 950

FAMILY LAW – Further ruling on extant matters.

Family Law Act 1975, ss.75(2), 79A, 79A(1)
Federal Magistrates Act 1999, s.42

Applicant:

MR MIGHELL

Respondent:

MS FIELD

File Number:

MLC 1145 of 2010

Judgment of:

Burchardt FM

Hearing date:

24 August 2012

Date of Last Submission:

24 August 2012

Delivered at:

Melbourne

Delivered on:

31 August 2012

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

The declaration contained in order 11 of the orders made 10 November 2011 be set aside.
The orders made 10 November 2011 otherwise remain in full force and effect as final orders.
All extant applications be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 1145 of 2010

MR MIGHELL

Applicant

And

MS FIELD

Respondent

REASONS FOR JUDGMENT

It is not possible to give this Judgment without traversing, in some detail, the extensive history of the matter. On 30 August 2010, the husband - the parties are now divorced but it is more convenient to refer to them still as husband and wife - lodged an application in respect of both children and property. Putting the matter broadly, he sought that he obtain possession of a property the parties owned in Property B and that the wife be apportioned a property in (omitted) in (country omitted) and retain her own business interests in that country.
Relevantly for these purposes the husband’s supporting affidavit inter alia made reference to child support proceedings in (country omitted) and asserted that those might take years to finalise. That assertion has been proved prescient. On 15 October 2010, the wife filed her response. She sought the sale of the property in Property B and a division in her favour of 40/60 of the proceeds. Her affidavit material made no mention of the assets in (country omitted), but did set out asserted child support debts in the sum of $135,000-odd from January 2005 to July 2008, a further almost $80,000 from July 2008 until June 2010 and a further almost $15,000 from June 2010 until October 2010.
Nonetheless, it is clear that the children were living with the father from March 2009 onwards and with him in Australia from January 2010. Following three days of trial in June 2011, for all of which the wife was represented, and a further one day hearing on 16 May 2011 at which the wife represented herself, I gave Judgment on 21 June 2011. A number of paragraphs of that judgment are now relevant. At paragraph 1 I said:
“This is a property dispute. In addition to the usual prevailing difficulties as to proof, it is further complicated by the fact that the parties spent half the time they lived together in (country omitted), where they still own a property. A number of matters about that property and some interrelated Court proceedings in (country omitted) remain far from clear.”
At paragraphs 7 to 10 I said:
“7.    On 16 May 2011 the wife, who had ceased to be legally represented, sought to file an application in a case and an affidavit at the commencement of the day’s proceedings. I refused her leave to do so. I did not give any detailed Reasons at the time.
8.    What the wife sought was the provision by the husband of an enormous amount of documentation together with compelling him to supply an affidavit and that various third parties provide documentation on a wide-ranging basis also.
9.    The affidavit in support sworn on 12 May 2011 raises a number of complaints about non-disclosure on the part of the husband and a variety of those go to support the difficulties she has had preparing her case and thus the necessity for the orders she sought.
10. It is readily apparent, as I think I pointed out to the wife at the time, that to proceed in this way would be to abort the trial and send everything back to start all over again. Given that the applicant husband had already been cross-examined (and in my view very competently so) and that the applicant husband’s case had in effect already closed, it was in my view wholly inappropriate to permit the wife to proceed to file her application in a case and affidavit. It was of course open to her to cross-examine the husband as to the matters about which she complained and she did so, at least in relation to those matters which related to him directly.”
At paragraphs 85 to 86 of my Judgment I said:
“85. I have given earnest thought to what is the proper way to proceed with this aspect of the dispute. I am bound to assume, and do, that the proceedings in (country omitted) have been regularly conducted. I appreciate that the husband asserts fraud on the wife’s part, but that is a matter for the (country omitted) curial authorities.
86. In the ultimate, if the husband has a liability under (country omitted) law as a result of failure by him to do what he is lawfully required to do, then that is his difficulty. By the same token, if in the ultimate he is not required to pay any moneys pursuant to the (country omitted) Court orders, then so be it. While clearly the outcome of the (country omitted) proceedings will alter, and radically at that, the parties’ financial positions, the reality is that a child support debt is either owing or it is not. It should not, in my view, properly be taken into account in the pool. I am troubled by the fact that the husband appears to be under an ongoing obligation to pay child support of approximately either $1,600 or up to $1,900 per fortnight pursuant to the (country omitted) orders (depending upon which exchange rate is applied). This seems wholly counterintuitive given that the children have been living fulltime with the husband since early 2009. Nonetheless, it will not be possible for me to make any orders that countervail or off-set the orders made in (country omitted), and while it is proper to take the father’s contributions as primary carer since 2009 into account (and I will do so) notwithstanding the extraordinary situation that obtains, namely that the husband is under curial order in (country omitted) to pay child support for the children who are living with him and not with the wife, this is ultimately a matter for the (country omitted) authorities and not for me. I have no power to do anything about it.”
I found that there should be a 20 per cent loading in favour of the husband in regard to contribution and a five per cent adjustment in the wife’s favour pursuant to s.75(2) factors. I adjourned to enable the wife to sell the (omitted) property. As I said at paragraphs 106 to 107 of the Judgment:
“106. This leaves the question of what is to actually occur. In my view, it is clear that the (country omitted) property should be sold. It seems to be more probable than otherwise that the wife would be in a much better position to do so than the husband. It is her own land, she has relatives living there, she can far more readily find and appoint agents should they be required. She will readily understand any legal issues that may emerge, whereas the husband’s confusion in this regard seems palpable and understandable.
107. The (country omitted) property should therefore be sold and once its value is ascertained, there should be an appropriate adjustment to ensure that the wife receives 35 per cent of the total pool. On one view, this may seem a poor return for such a long period of involvement but the fact is that the parties were only married for some ten years, even though it has taken 20 years for this case to come to Court. The wife’s initial contribution was simply nowhere near as great as that of the husband and it was that initial contribution which, on the facts of this case, generated most of such property as they have available for division.”
The sale foreshadowed by my orders did not occur. Mutual accusations of non-compliance took place and further submissions involving some substantial tranches of materials took place. In the ultimate, I made orders on 10 November 2011. I ordered that the wife receive 35 per cent of the value of the Property B property which would either have to be paid to her in cash or the property sold and the 35 per cent paid to her.
I made declarations as to the percentage ownership of the property in (omitted) and I declared that this was part property settlement only. My Judgment given on 10 November 2011 noted a number of difficulties. I noted at paragraph 32 that the (country omitted) proceedings could take some 18 months or so. I noted the wife’s endeavour to reopen her case which I rejected. I would read from paragraphs 46-49 and 51-58 as follows:
“46. I have already determined that there should be a split of 65/35 in the husband’s favour of all non-superannuation assets. I remain of the view that that is so and, as I say, that is so notwithstanding the new materials that both parties have sought to file.
47. This trial has become somewhat convoluted by virtue of the way in which the parties have sought in effect to reopen their cases when that was not something that the Court had envisaged or desired in the original Reasons for Judgment.
48.    In order to avoid doubt I would make the following findings which emerge from consideration of all of the materials filed including the materials filed post-June 2011:
(a)     Notwithstanding the translated documents now provided to the Court it is all but impossible to work out exactly what is going on in (country omitted) in relation both to the Court proceedings and to the various encumbrances on the (country omitted) property owned by the parties.
(b)     Notwithstanding (a) it does seem reasonably clear that:
(i) The husband is the subject of a very substantial liability to the wife of some $365,000 for what, for these purposes, can be called (country omitted) child support proceedings.
(ii)    The result in that case was no doubt regularly arrived at by the curial authorities in (country omitted) but that sits very uneasily with the fact that the children have lived with the father since 2009 and with him in Australia since 2010 and not with the wife.
(iii)   It appears more probably than otherwise that the child support debt is in some fashion an encumbrance upon the sale of the (country omitted) property.
(c)     The (country omitted) property is further encumbered by a relatively small (around about $6,000-$7,000) liability to the municipal authorities or some similar entity.
49. In the circumstances described, it is no surprise that each of the parties has submitted at one time or another that the other should become seized of the (country omitted) property (although the most recent submission suggests sale may now be contemplated). It is all too obvious that both of them regard the (country omitted) property as something of a forlorn cause. They see the property in Property B as the real tangible, obtainable asset of the relationship as things now stand. That conclusion seems to me to be an accurate one. Notwithstanding the wife’s most recent submission, I am quite unable to understand what needs to be done to effect a sale.”
And then I refer in paragraph 50 to some credit findings that I don’t need to repeat. I continue at paragraphs 51-56:
“51. In my view the position in (country omitted) is so complicated, and the nature of the Court proceedings in that country so alien to the understanding of a common law lawyer, that it is impossible to decipher exactly what is going on. It is even more difficult to establish what the likely outcome of the (country omitted) proceedings will be and when it may occur.
52. If the husband’s appeals are successful it may well be that the amount of child support debt owed to the wife in (country omitted) is either very substantially reduced or removed in total. It is not clear whether this would mean that any process of encumbrance on the (country omitted) property would be removed or otherwise. The rates and the like can surely be paid by either party relatively easily.
53. Nothing I have heard alters my conclusion that the just and equitable division of the parties’ non-superannuation assets should be 65 per cent to the husband and 35 per cent to the wife.
54. This finding, as indeed was the case in my earlier Judgment, necessarily puts aside the child support debt in (country omitted). It is self-evidently unsatisfactory that such a significant liability should not be included in the pool of assets and liabilities of the parties, but in circumstances where it is vividly contested and the outcome of that contest remains wholly unclear, there is simply no other alternative than to delay the final outcome of these proceedings on an indefinite basis until the (country omitted) proceedings are finally concluded.
55. Given that it is common cause that the (country omitted) proceedings in one form or another have been underway for at least eight years already and that there is at least 18 months or so to go, it would be plainly unconscionable not to deal with the matter as best one can now.
56. In the circumstances in my opinion the orders that will do the best one can to provide a just and equitable outcome in circumstances that are self-evidently unsatisfactory, are as follows:
(a)     I will order that the husband pay to the wife 35 per cent of the value of the Property B property of $1,250,000 within 90 days failing which that property must be sold and the proceeds of the sale be divided following the usual deductions in the proportions of 65/35.
(b)     Plainly the husband should have credit for the $20,000 he has already paid to the wife pursuant to my earlier orders.
(c)     So far as the property in (country omitted) is concerned I will declare that the parties own that property in the proportions of 65/35 per cent in favour of the husband and order that the property be sold and the net proceeds be divided in that way. This order is self-evidently unenforceable in the sense that it is proposed to operate extra-territorially. Nonetheless, it is not incapable of having operation. That is because both the parties are in effect permanent residents in Australia and the Court is, in my view, obliged to do the best it can to produce finality to the parties’ affairs.
(d)     I will make these orders part-property settlement only. Thus, when the famous day comes and the (country omitted) proceedings are finally resolved, in the event that the child support obligation is sustained it will doubtless take up the whole of the value of the (country omitted) property. In the event that it does not the parties will be in a position to sell it. If the wife simply sells it and keeps all the money to herself, then it would be open to the husband to seek an adjustment in his favour in Australia. By the same token, if the husband sells and the wife acts, as she ought to, in a sensible and lawful way, the husband will at that time, as will the wife, receive the due proceeds of the sale in (country omitted).
…
57. These orders are not in any way entirely satisfactory. They represent the best the Court can do. The forensic task imposed on the Court in this case by the inadequate and conflicting materials filed by the parties is enormous. It is all but insuperable. It is further complicated by the fact that I have no great confidence that either of the parties is particularly truthful.
58. To the extent that these orders may visit some element of injustice upon the parties, in my opinion they have no-one but themselves to blame.”
I then invited submissions on the draft orders which were duly made. There matters rested until April 2012. On 20 April 2012 the husband filed an affidavit. It purported to show a failure by the wife to cooperate with the sale of the Property B property and sought that a Registrar sign documents for sale. It is clear that the Registrar did sign, not least because there is exhibited material to that which shows this, but also because the sale could not have otherwise proceeded. On

7 August 2012, the wife filed an application in which she sought 30 orders. The wife’s materials assert the value of the child support debt in (country omitted) at approximately $467,000 and sought a substantial revision of the orders I had previously made.
On 7 August 2012, likewise, the wife filed an affidavit. I do not propose to traverse it in detail. In some respects it is densely packed and hard to follow. The affidavit asserts that the (country omitted) proceedings have been resolved in the wife’s favour. I note that a substantial amount of the affidavit and the materials annexed go back at least till January 2011 in the (country omitted) proceedings and seek to revisit, in large part, matters of the history of the parties in (country omitted) which of course took place long before this case even started.
It is asserted that the children had been living with the mother for about three months, both in (country omitted) and in Melbourne; it asserts there were problems in selling the (omitted) property and makes complaints about the sale of the Property B property and, most particularly, about the non-involvement of the wife in that process; asserts that the price of sale is far too low and seeks that this Court enforce the child support debt in (country omitted).
There are substantial tranches of (country omitted) documentation annexed to the affidavit, some of which is translated but which, I would observe, is still no easier than it was before for me to understand. Also on 7 August 2012, affidavits were filed by the two children, who are now both adults. They were clearly drafted by the mother. The style and typeset is exactly the same as her own materials.
These affidavits assert coercion by the father in relation to the proceedings in (country omitted) and apparently show that the children themselves have played some part in the proceedings in (country omitted). On 8 August 2012, there was a hearing at which both parties were self-represented. The husband confirmed that settlement of the Property B property is due to take place on 12 September 2012, and he asserted that all relevant steps to sale were taken pursuant to my orders.
I adjourned to enable affidavits to be filed by the husband, and I should refer to the transcript of the proceeding on that date, at page 9 - the transcript has gone missing for the moment, but the purport of what I said was that I expected to hear submissions, when the matter returned, as to whether or not I should make the orders that had previously been made, on an interim part-property settlement basis, final, given the intractability of the various difficulties in (country omitted).
Subsequently further correspondence was received from the wife, including a copy of a letter sent to the solicitor for the sale. I will read the relevant passage out. This is a letter addressed to Claire Quinn, who is the solicitor apparently handling the sale. I will read the relevant passage out. This is a letter addressed to Claire Quinn, who is the solicitor apparently handling the sale, and it is dated 16 August 2012 and reads, relevantly, as follows:
“In addition, as I told you in the email that is below, I am seeking orders that the sale of the Property B house be reversed, my grounds being that I have not been taken into account with the sale process (I have heard that the agent signed the contract on my behalf but as far as I know no order has been issued by FM Burchardt empowering a Real Estate agent to sign a contract of sale on my behalf) and also on the grounds that the sale process stated by the Court had not been followed.
Furthermore, the orders issued by FM Burchardt directed that both the parties had to engage a lawyer to effect the sale, and I have not engaged a lawyer, mainly because I was not told that the house was about to be sold. I do not know Quinn lawyers, as you know.
And independently, I am also seeking orders that the sale of the Property B house be set aside because there has been a miscarriage of justice by reason of fraud, duress, failure to disclose relevant information and because the opposing party has defaulted in carrying out an obligation imposed on him by an order.”

On 16 August 2012, the husband filed an affidavit which, putting the matter broadly, essentially refuted all the assertions made by the wife. So far as the issue of the rent on the Property B house was concerned, this being an issue raised by the wife, it was deposed that this had been used by him for day-to-day living expenses. It was also deposed that the (country omitted) proceeding is continuing and, once again, the account of the (country omitted) proceeding remains unintelligible, at least to me.
It confirms that the children ceased to live with the husband in November 2011, and the affidavit asks the Court to:
“…set aside the case in (country omitted)-”
and deposes that the husband will fight that case, both in (country omitted) and in Australia, should there be any endeavour at some future point to register any judgment from (country omitted) in Australia.
He deposes that the child support debt is not enforceable. On

23 August 2012, the affidavit of the wife was filed. She complains of the sale price and her non-involvement in the sale. She complains that documentation was executed by a Registrar of the Family Court. I interpolate and say that is inaccurate. All the Registrars of the Family Court are entitled to sign on this Court’s behalf, and at page 8, under the heading “Why Orders Previously Made should be Modified”; she refers to fraud and duress and the like, although no particularisation of the same is given. She complains that the child support debt has not been disclosed by the husband; although I interpolate again and point out that it was referred to as early as his first affidavit.
She says that the (country omitted) proceeding is ended. It is clear to me that it is not. And she seeks revised orders very substantially in her own favour, both as to property and superannuation. On 24 August 2012, the Court received a written submission from the husband which sought, in effect, that the Court should split the difference in the valuations in the (omitted) property.
As I explained at the time, that methodology is not properly available to the Court. He pointed out that, if he loses the case in (country omitted), there will be a huge deficit, and that is plainly correct. The Court has also been confronted with an application in a case, filed, I think, on 14 August 2012. When I say “filed”, I think it was simply forwarded to the Court by the husband; it was not formally filed, but whether that be so or not – sorry, go back a step – there was also filed an application in a case dated 14 March 2012.
This was not filed. It is clear from the draft affidavits that the Registrar did execute all the relevant documents. The sale could not have happened without it, and I note that exhibit M1 shows that a Registrar authorised J.P. Dixon to sell. That is entirely consistent with the orders earlier made. In oral submissions made on 24 August 2012, the wife complained again about her non-involvement in the sale and that the sale price was too low.
She pointed to the fact that there was no solicitor for the purchasers, to which the husband responded that the purchasers are understood to be overseas, and the same solicitors are acting for both. The wife said that the use of the phrase “or nominee” suggests a sale at an under value, and she sought again that the property in Property B be transferred to her and the (omitted) property transferred to the husband.
In oral submissions, the wife asserted that she was making an application under s.79A of the Family Law Act 1975 (“the Act”). The grounds of this were said to be that the husband had lied about everything. There were wide-ranging allegations of conspiracy. There were issues raised as to the rent on the Property B property from time-to-time, the repetition of the assertion that the proceedings in (country omitted) were finished and that the wife sought compensation for interim maintenance and sought to reopen the case about the children, notwithstanding that they are now both over 18.
The husband’s submissions asserted that he had sent all documents to the wife and received no response. He said that the rent had not even covered school bills, a matter I regard as irrelevant, and said that his appeal, what he described as his federal appeal in (country omitted), has been accepted. He asserted that he has nothing to do with the sale of the Property B property and that the Real Estate Institute of Victoria (“REIV”) had appointed the agent.
I note that the value ascribed to the property has declined from $1,250,000 in 2011 to a sale price of $996,000. So far as it is possible to make findings about these matters, I point out that it is difficult to order my conclusions, given the somewhat scattergun approach of both parties. Dealing first with the children’s issues, I do not propose to reopen matters relating to the children, as they are both over 18.
Moving to the s.79A application, to the extent that there is one before the Court, all the wife’s allegations effectively relate to conduct prior to my Judgment. To the extent that they postdate it – in other words, for example, the possibility of future (country omitted) proceedings and matters raised by the children’s affidavits – none of this persuades me it is interests of justice to reopen the case and, in effect, start all over again.
The wife asserts fraud, but I simply do not agree, and nor do I accept her assertions of coercion and the like. These are most substantially based on matters with which I have already dealt in my prior Judgment. The Court, in any event, has a discretion under s.79A(1). In my view, further proceedings are wholly inappropriate. I have to pay proper regard to the Federal Magistrates Act 1999, and in particular s.42 of that Act, which requires that this Court should not, if in any way possible, allow matters to become unduly protracted.
These are short Reasons but, in my view, the position is clear. The wife’s material essentially seeks to relitigate the issues she has lost, and it is not proper to permit her to do so.
The next issue is the question of the sale of the house and as to whether this Court should, as it were step in and prevent settlement next month.
The entire conduct of the wife in this case is to suggest in the strongest way that she would never cooperate in any kind of effective way with the husband to sell the house. It is clear that the Registrar signed the relevant documents and it is clear that the Real Estate Institute of Victoria appointed the agent. Even if the wife was not involved in the process, and it is clear that she was not, it would make no difference.
True, it is that the sale price is much lower than the valuation last year, but I can take judicial notice, I think, of the fact that the property market in Melbourne is generally dire. There is no sufficient suggestion that there is anything untoward such that this Court should intervene. I point out that there is absolutely no benefit whatever to the husband in underselling. I note further, the sale has been concluded and the deposit distributed. The parties would be immersed into a further legal minefield if I was to make the orders the wife seeks, in any event.
Next, I deal with the question of spousal maintenance. So far as I can recall, this matter has never been raised, or at least pressed, until the oral submissions made on 24 August 2012. The wife will shortly obtain a substantial tranche of money from the sale of the property in Property B. It is inappropriate to enter into this new area of potential dispute at this last moment in the curial process. I notice the wife’s claim remains wholly unquantified in any event.
Next, there is the question of such amounts of rent as may have been received in more recent times from the rental of one or two rooms in the Property B property. The husband has deposed that he rented these rooms to support himself.
The delay in sale has been caused by the parties’ failure to sell in a timely way, which was not a matter which was envisaged when I originally made orders. The wife has been overseas for some months, and although the matter is not wholly clear, it seems to me that she has probably been uncooperative in the sale process. The likely amounts are not significant, and this matter should come to an end. I do not propose to take this aspect of the matter further.
This brings us to the question of the (country omitted) child support proceedings. It is a huge debt, and if ultimately established and enforced, the husband will get little out of the overall settlement. In many ways, of course, that would not be an appropriate outcome, but the appeals seem to me likely to go on indefinitely and the outcome of them remains wholly uncertain.
I stand by what I said in my original Judgment dated 10 November 2011: this debt stands or falls on its own, and I repeat paragraph 54 of my Judgment:
“54. This finding, as indeed was the case in my earlier Judgment, necessarily puts aside the child support debt in (country omitted). It is self-evidently utterly unsatisfactory that such a significant liability should not be included in the pool of assets and liabilities of the parties, but in circumstances where it is vividly contested and the outcome of that contest remains wholly unclear, there is simply no other alternative…
Unlike what I said in paragraph 54, I have now come to the conclusion that this matter cannot be delayed until the (country omitted) proceedings are ultimately finished. As I understand it, they have been going forward in one form or another since 2003 and appear to involve at least one or two further grounds of curial activity. One wonders if it will ever finish.
I am simply going to order that the declaration or order number 11 made on 10 October 2011 be aside. That was the declaration that was in part property settlement only. The orders will otherwise be final orders, and all extant applications will be dismissed.
Finally, I should say that these remarks were written out in note form some days ago, but yesterday the Court received an affidavit of Ms Field and what purports to be an application in a case.
It seeks leave to, and I quote:
“…have a further opportunity to push the virtual enforcement orders sought in paragraphs 12 to 19, 26 and 27 of an application in a case dated 7 August 2012.”
It also seeks an order that, if the Property B sale is invalid, various things be done, but the Property B sale is not, in my view invalid. The orders 12 to 19 refer to orders sought in respect of the (country omitted) property. Orders 26 and 27 seek leave to adduce further evidence and that the husband and his mother jointly pay the $467,000 of child support debt from (country omitted).
From what I have already said, it is clear I will not revisit the orders and declarations made in respect of the (country omitted) interests. I have done the best I can with the materials provided, and I note again that all aspects of the (country omitted) dispute are, in my view, impenetrable. The parties will have to sort the property and the child support debt in (country omitted) out themselves.
Insofar as the application seeks orders 26 and 27 relating to enforcement as against the grandmother and the husband, these applications are plainly hopeless in the face of my conclusions. I note that the husband’s mother is not even a party to the proceedings. This aspect of the application faces the same problems. The proceedings in (country omitted) are nowhere near finished and are completely incomprehensible.
There is no utility in giving the wife yet more time and opportunity to address these matters. The case simply has to end. The wife has continually sought to reagitate the firm conclusions expressed in my Judgments. I am not prepared to permit this to continue. The wife has, after all, her rights of appeal. As I indicate, the interim orders will now be made as final orders, and all extant applications are dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 6 September 2012