Murgatroyd & Murgatroyd
[2022] FedCFamC1F 78
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Murgatroyd & Murgatroyd [2022] FedCFamC1F 78
File number(s): MLC 12634 of 2016 Judgment of: BAUMANN J Date of judgment: 9 February 2022 Catchwords: FAMILY LAW – PROPERTY – Oral application to stay proceedings dismissed – Matter listed for Final Hearing Legislation: Family Law Act 1975 (Cth) Cases cited: Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 9 February 2022 Place: Brisbane For the Applicant: Litigant in person For the Respondent: No appearance ORDERS
MLC 12634 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MURGATROYD
Applicant
AND: MS MURGATROYD
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
9 FEBRUARY 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 29 August 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
2.That Application in a Proceeding filed 19 November 2021 be adjourned for Interim Hearing at 2.15pm Queensland time on 21 March 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
3.That the Respondent have leave to appear by telephone on 21 March 2022 by using the Microsoft Teams conferencing system as follows:
(a)The parties shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 2.10pm on 21 March 2022; or
(b)They shall each telephone +61 2 … (including any international dialling codes if calling from outside of Australia) by 2.10pm on 21 March 2022;
(c)They shall each then enter the pass code …#; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Murgatroyd & Murgatroyd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BAUMANN J:
In these proceedings since at least 2016, there have been, at times, disputed parenting and property issues between the Applicant husband, Mr Murgatroyd, and the Respondent wife, Ms Murgatroyd. At the core of the parenting issues were the best interests of the children, W (born in 2005), X (born in 2007), Y (born in 2009) and Z (born in 2012) (hereafter collectively called “the children”).
In these ex tempore reasons, I do not seek to deal with all of the previous history in this matter save to say that a former judge of the Family Court of Australia (as it was then called), the Honourable Justice Forrest was listed to hear both parenting and property matters, but decided in approximately May 2019 to bifurcate the matters because of difficulties associated with a recent dispute as to an inheritance of property by the wife in Germany, her country of origin. His Honour conducted the parenting trial that involved the wife’s application to relocate with the children to Germany between 18 and 21 June 2019, and on 4 September 2019, his Honour delivered reasons and made orders which have not been the subject of any successful appeal or variation to date. In effect, those parenting orders provided that the wife was permitted to relocate the primary residence of the children to Germany and she may do so any day after Sunday 8 September 2019 (Order 3). For the purposes of these reasons, Order 10 provided as follows:
10.That should the father not relocate to live in Germany, then the mother shall send the children, at her expense, to Australia to spend time with the father for a minimum period of at least three (3) weeks (excluding travel time) during every Region J summer school holiday period. The mother may choose to travel with the boys for those holidays or not. She shall give the father at least six (6) calendar months written email notice of the exact dates that the boys’ German summer school holidays will commence and finish and the father shall elect the particular three (3) weeks that he will take time off and have the boys stay in his care and give the mother at least four (4) calendar months’ written email notice of his elected weeks with the mother to then book and pay for the flights for the boys, notifying the father of the details of the flights by way of written email at least three (3) calendar months before the date of departure from Germany.
Order 11 provided that:
11.That the father shall collect the boys from Brisbane International Airport Terminal upon their arrival and shell [sic] deliver them back to that airport terminal in time to catch their return flight home at the end of the three (3) week holiday with him.
The importance of these orders is that sadly, at least because of COVID-19 issues, the difficulty for people to travel from overseas to Australia and the orders for the children at the wife’s expense to spend time with the husband in the Region J summer school holiday period (August/September) in 2020 and 2021 has not taken place. The husband is clearly a passionate father, highly frustrated by his lack of physical time with the children and raises a number of issues on almost every occasion the matter is before the Court about the failure by the wife to comply with orders and issues relating to the welfare of his children.
I have been at pains to explain to the husband that there are no parenting issues before me for determination. His response is often that he has been seeking, as an unrepresented litigant, to file applications, contraventions and the like and has found that all his attempts to do so have been completely frustrated by the court’s registry. What is clear, however, is that for some time now since Justice Forrest retired from the court and when this matter came into my docket through a callover of cases awaiting for trial, I have been attempting to get the matter ready for trial. This is not a matter that is necessarily complex, but the fact that both parties are unrepresented; that the wife only appears by way of telephone from Germany; and that the husband is, quite understandably, fixated by the loss of his time with his children, which I well understand, and more particularly, what he says has been lies, false evidence, failure to disclose and total non-compliance by the wife with directions made by the Court, it has been very difficult to move the matter forward.
As the history will show, I had made the obvious point to these unrepresented parties on numerous occasions that disputes as to how the inheritance laws and/or property laws of Germany ought be interpreted on the facts of this case, as best we know them, is really a matter for the expression of an opinion by an expert in German law. When that position was finally accepted by the husband and wife (which in itself was not an easy exercise) it became necessary to then identify a possible expert. Shortly stated, orders were made for the appointment of Mr AA as a single court expert. Mr AA is a solicitor and notary of New South Wales and a solicitor of England and Wales. He is also a member of the German Bar or the equivalent. He practises in Sydney. Again, in circumstances where the Court did everything it could to assist these parties to refine orders and questions, including my chambers settling a range of questions raised by the parties, it is pleasing to see that Mr AA was able to provide a report on 4 February 2022 in answer to the questions and in respect of a number of issues raised, particularly by the husband.
In that regard, I should note that the husband has consistently claimed, as a result of assertions made by the wife either in documents or in other Court events, that she has lied about the extent of her inheritance or interest in German property. It appears clear when one looks at least at paragraph 4.3 of Mr AA’s report, that there was an error made in Germany described as the “incorrectness of the first certificate of inheritance”, which caused a certificate of inheritance confiscation order to issue in Germany on 28 January 2019. This goes some way to explaining and reconciling the husband’s understandable concern about the wife’s disclosure about her interests in Germany with documents he was able to source, mostly in German, many of which were not properly translated but have nonetheless been viewed by the Court expert.
The bottom line in respect of the wife’s interest in property in Germany arising from inheritance has in many ways, it seems on the evidence subject to it being tested, clarified. Although there was a joint will between the wife’s parents of March 2001, and the husband claims there was another will in 2002, during the course of the relationship that he knew of, in which he may have been a beneficiary, the wife’s father died in 2013. After the original inheritance certificate was corrected in 2019, in October 2021, the sole heir of the wife’s father’s estate, the wife’s mother also died, and as recently as 2022. A Court-issued certificate of inheritance has been provided and seen by the Court expert, the effect of which is that the wife, as a joint heir with her two siblings, has effectively a one-third interest in the estate of her mother, which includes the full estate of the wife’s father. Today, Mr Murgatroyd indicated to the Court that he has some questions for the Court expert. He has leave to ask those questions at his cost. Whether they change the basic opinions of the Court expert I do not know.
Mr Murgatroyd today says that he wishes his Application in a Proceeding filed 29 November 2021 to be dealt with. However, it was never listed today for hearing, as is apparent from Order 3 of orders made 25 November 2021. If that was not an impediment to the matter being determined, then at the very least, there is a procedural concern today because the wife, who appears always by phone from Germany (and that is why these matters are listed in the afternoon, so as to ensure that she does not require to appear in the middle of the night from Germany), has indicated to the court and the husband from the bar table (he also appearing by Microsoft Teams) has confirmed that it appears the wife and at least two of the children have COVID-19. Clearly as the father of the children, he is concerned about the welfare of his children, but for the purposes of today, I cannot progress the Application in a Proceeding that he filed in November in the absence of the wife.
The husband says this is just another attempt to frustrate the court finalising this matter. In my view, for the reasons I indicated orally but which I will confirm now, this matter needs a final determination date. For that reason, I have listed the matter for three days commencing 29 August 2022. Now, whilst it may be possible for me to list the matter more quickly than 29 August 2022, those dates are picked because they fit within the dates of the Region J summer holidays of the children and whereby that the wife is required to facilitate the husband spending at least three weeks with them. The husband has today indicated that although, of course, he wishes to maximise his time with his children, and whilst he anticipates that he will continue to represent himself for the time being, he is prepared to have the matter listed during that period.
For those reasons, I cannot deal with the Application in a Proceeding today. However, there are some matters which the husband has already raised with the court and have been dealt with. One of the issues that the husband raises at paragraph 5 of the Application in a Proceeding is effectively that the proceedings be stayed until after all matters in Germany involving the wife have been completed and until the wife is in Australia. I tried to explain to the husband today that although far from preferable, the civil courts in Australia have been required, on a number of occasions over the last two years when COVID-19 conditions have prevented personal appearance or entering the country, to run trials by way of Microsoft Teams. I am not satisfied, as currently advised, that it is appropriate in the administration and best interests of justice to stay the proceedings pending the wife being able to enter Australia or choosing to come to Australia. I explained to the husband there is limited capacity for any orders I make in Australia to compel the wife to come to Australia in a civil case.
Whilst the husband says that it is unconstitutional for the court to proceed with the wife appearing from overseas, I am not directed to any authority binding upon me to indicate that is the case. The more relevant authorities are those contained within both the statute, being the Family Law Act 1975 (Cth), and the general law and authorities, which is that the court should do its best to bring these matters to an end in a trial using whatever appropriate measures are available, so that the trial can be fair and the evidence properly tested. I acknowledge now that that will be a challenge. However, by at least setting a trial date today and noting that there seems to be no other impediment that has been put before the Court (including any application by the wife, as the mother of the children, to vary the orders of Justice Forrest made about time in Australia between the husband and children in the Region J summer holidays this year in 2022), I have to anticipate there is a reasonable prospect that the wife will actually come to Australia. I note that by that stage, Z, the youngest child, will be ten. I can recall on an early occasion, the wife indicating on the telephone that it is her intention to come to Australia.
A number of the areas of relief sought are in the Application in a Proceeding have either been dealt with or do not have any merit. For example, the husband consistently has sought that subpoenas be directed to Legal Aid Queensland because it seems that he feels the wife has not made full disclosure of her financial situation. The areas in relation to discovery have generally been dealt with, and I directed the husband to a long line of authority with cases such as Black & Kellner (1992) FLC 92-287and Weir & Weir (1993) FLC 92-338 that gives the court the discretion to treat the evidence (in this case of the wife) cautiously if the court establishes at trial that she has failed to make proper and relevant disclosure. I am not at this stage satisfied, despite all the directions for disclosure that has been made in the past, as the record reveals, that the husband will ever believe full disclosure has been made.
I propose to have these reasons prepared, settled and provided to the parties, and I intend to have the matter come back before me Monday 21 March at 2.15pm for hearing of the Application in a Proceeding. The wife will be given the opportunity to appear by telephone. But as I have already made clear to the husband, some of the relief he seeks is not within the jurisdiction of the court and would not be made, but that might be better left to another day. Hopefully by March under the orders of Justice Forrest, so far as the identification of when the children will spend time with the husband in Australia as set out in the parameters of order 10 of orders dated 4 September 2019 as earlier indicated, will have been clarified and I will have a better indication of the wife’s intention to be in Australia.
I note that apart from issues of discovery, which I am not satisfied the husband will ever believe has been fully achieved, there is an issue of some significance which is troublesome in this case, but will be need to be dealt with on the next occasion. That is that the major property in Australia is a home which, I recall, may have been brought into the relationship by the husband as early in 2000 in a suburb in Brisbane which will need to be valued. Even today, the husband said to me that he does not intend to have the house valued until the wife complies with discovery. On the next occasion, it would be the court’s intention of its own initiation to make an order for a single expert to value the home unless otherwise persuaded against the approach. The property market in Queensland has changed quite significantly and I have no idea what the home might be worth, and there is seemingly very little evidence at all of any earlier valuation.
I anticipate that the wife’s interest in the inherited property will be a matter of dispute. The husband says that it should be included in the pool. Whether that is ultimately the decision of the court is not a matter for today. However, there is no doubt that the court in Australia has jurisdiction to take into account the wife’s interest in property as a whole, in any other country outside of Australia, including Germany. Now that the wife’s one-third interest in the property has been confirmed by the recent statement of the German court issuing a certificate of inheritance, the wife will be obliged to provide evidence of the value of her interest in the estate. That includes certain properties which have been the subject of earlier discussions and where the husband says the wife has failed to provide a full copy of the full valuation of a certain property in Germany. So much seems to be confirmed in the report of the Court expert, Mr AA, where he refers specifically to only seeing two pages of a document that may be at least 47 pages in length.
The bottom line is there are some issues in terms of property which will need to be resolved or directions made before a trial, but I believe in the interests of justice for these parties and with a view to having finality in the financial matter that was bifurcated by Justice Forrest for reasons delivered by him at the time, this matter must get on.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 9 February 2022
0
0
0