Nagel (deceased) and Nagel and Anor

[2016] FamCA 863

FAMILY COURT OF AUSTRALIA

NAGEL (DECEASED)& NAGEL AND ANOR [2016] FamCA 863

FAMILY LAW – PROCEDURAL ORDERS – Application in a Case adjourned to a fixed date for an interim hearing – Orders and directions made for the husband to provide discovery – Orders and directions made for the filing of affidavit material

FAMILY LAW – PROPERTY – Interim property orders made in favour of the Legal Personal Representative of the Estate of the wife and the Intervener by way of interim costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Burton (Legal Personal Representative for the late Ms Nagel)

FIRST RESPONDENT: Mr Nagel

INTERVENER:	Ms Curtin
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 796 of 2014

DATE DELIVERED: 14 September 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 14 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lewinski

SOLICITOR FOR THE APPLICANT: Butler McIntyre & Butler

COUNSEL FOR THE RESPONDENT: Ms Foale

SOLICITOR FOR THE RESPONDENT: Simmons Wolfhagen

COUNSEL FOR THE INTERVENER:  Mr Gunson SC

SOLICITOR FOR THE INTERVENER: Phillips Taglieri

Orders

1. The response to an application in a case filed 8 July 2016 by the respondent be adjourned for interim hearing before me at 10.00am on Thursday 13 October 2016 at Hobart.

2. The application in a case filed 26 August 2016 by the applicant be adjourned for interim hearing before me at 10.00am on Thursday 13 October 2016 at Hobart.

3. By way of interim property order in respect of the legal personal representative and by way of interim costs order on behalf of the wife, the husband sign all documents and authorities to cause:-

   (a)the sum of $120,000 to be paid into the trust account of the solicitor for the wife’s legal personal representative from funds outside the Commonwealth of Australia and New Zealand and not including funds recently repatriated to Australia from the United States, or from Europe; and

   (b)the sum of $35,000 to his own solicitors from funds outside the Commonwealth of Australia and New Zealand and not including funds recently repatriated to Australia from the United States, or from Europe.

4. The payment of such monies as referred to in paragraph 2(a) and 2(b) above is to be made pari-passu in relation to the $155,000, that is thirty five one hundred and fifty fifths of any money to the solicitor’s account for the husband and a hundred and twenty one hundred and fifty fifths to the solicitor’s account of Mr Lewinski.

5. The costs of today of all parties be reserved.

IT IS DIRECTED

1. A warrant issue to enable Mr Nagel (‘the respondent husband’) to attend at the Family Court of Australia, Hobart Registry on 13 October 2016.

2. The husband file and serve an affidavit setting out precisely the details of his legal and equitable interest in any property and detailing any liabilities, excluding the liability to the intervener and to that extent IT IS NOTED the document headed “Assets and Liabilities” tendered today and marked Exhibit “H1”.

3. The husband make discovery as set out in paragraphs 8(a) to (l) in the amended application in a case of the legal personal representative filed 26 August 2016 and in the event that the husband is unable or unwilling to provide the balance of that discovery before 13 October 2016, the husband provide on 13 October 2016 an affidavit by himself or someone representing him explaining the reason for such failure to produce such documents.

4. The legal personal representative file an affidavit in this court setting out the putative beneficiaries in respect of the Estate of Ms Nagel in the event that the estate passes to other than the husband, including their full names, addresses, dates of birth (with a copy of birth certificate if reasonably available) and their place of habitual residence.

5. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nagel (Deceased) & Nagel and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 796 of 2014

Mr Burton as Legal Personal Representative for the late Ms Nagel

Applicant

And

Mr Nagel

First Respondent

Ms Curtin

Intervener

EX TEMPORE REASONS FOR JUDGMENT

1. There are a series of applications before me in relation to the dispute between the Legal Personal Representative of the Estate of the late Ms Nagel and her husband, Mr Nagel (the husband’), and the Intervener, Ms Curtin (‘the Intervener’). 

2. Mr and Mrs Nagel were married in 1997.  It is alleged that they separated in September 2014 and, following that separation, property proceedings were commenced in the Federal Circuit Court.  On a later date, Ms Nagel was killed allegedly by the husband.  In her car at that time was the Intervener, a friend who, in the same incident, suffered what can only be described on the untested evidence as very serious injuries.  The husband has been charged with offences arising from that event in relation to the murder of his late wife and in relation to the injury to the Intervenor.

3. Mr Burton has been appointed Legal Personal Representative of the Estate ‘the Legal Personal Representative’), given the passing of Ms Nagel. 

4. There are a number of applications before the Court, primarily by the husband who now discloses he has assets to the value of somewhere between $2.1 million and $2.4 million, the majority of which are in Australia and New Zealand.  However, there appears to be significant funds in Europe, although the precise nature of those funds is said to be an issue, at least by the Intervener, and the Legal Personal Representative asserts that there has not been full and frank disclosure.  Counsel for the husband says, given his circumstances, they are doing the best they can with the material they have.

5. There was an application today by senior counsel for the Intervenor for an affidavit to be filed and full and frank disclosure to be made so that there could be a proper response to the application for interim costs in these proceedings and for interim property orders, as it were, in relation to the costs to be incurred by the husband in the criminal proceedings and in the civil proceedings in the Supreme Court.  I note that there are orders in the civil proceedings restraining or limiting the husband’s access to his property.  Clearly, the husband is not in a position where he can act for himself in these proceedings and there is no objection to an order being made by way of interim costs order, presumably, to the extent of $35,000, which would meet the costs of the husband in these proceedings outstanding to date and my estimate of the reasonable costs of the determination of this application when the matter comes back, given that I intend to grant the adjournment, provided those costs are paid from funds outside of Australia and New Zealand.

6. Given the doubt as to whether this Court can make effective orders with regard to the property outside the Commonwealth of Australia and given that the normal powers of this Court to enforce such an order are probably not going to be effective, it seems to me that such a requirement is entirely appropriate.  Accordingly, I will be enabling the husband to pay his solicitors by way of an interim costs order some $35,000, provided those funds are sourced from funds that are currently held in Europe and not funds held in Australia, New Zealand or recently repatriated from Europe or the United States.

7. There is another application, which is the application by the Legal Personal Representative, for funds by way of property orders so that their costs can be reasonably met in these proceedings.  Given the circumstances of the late wife, that is an entirely appropriate application and it is not opposed to the extent of $120,000 by the Intervener, given that those funds are also sourced from outside the Commonwealth of Australia and not from New Zealand and not from funds recently repatriated to Australia from either the United States or Europe.

8. The husband opposes that course.  Firstly, he opposes it because he asserts it is not fair as between himself and the wife and I am not sure that that is a factor to which I have to have regard.  I have to have regard to the fact that this couple lived together as husband and wife for some 17 years and that the pool of assets is likely to be in excess of $2 million.  It is inimicable to that agreed basis of fact that the wife will succeed in obtaining property well in excess of $120,000.  It is also inimicable that the wife’s Estate needs, through her Legal Personal Representative, a solicitor to be properly represented so that justice can be done in terms of the property proceedings.

9. The Intervener does not oppose that sum, provided it comes from those funds which are outside Australia to which I have earlier alluded.  Given the normal jurisprudence in relation to that sum, I see no reason why that ought not to be made and I propose to make that order.  Counsel for the husband also raised the question of him having the funds invested in that particular way, that is, in gold and silver.  There is no reason why the husband cannot approach this Court, or even the Supreme Court, with an investment strategy and have some of the remainder of the money invested in that way between now and the hearing so that he would continue to have the same balance.  I am not saying that is what I will do but it seems to me a fairly easy strategy to have the moneys repatriated and invested in such ways if it is appropriate in all of the circumstances.

10. In terms of the adjournment, I have read all of the financial disclosure of the husband, and, quite frankly, Ms Foale, I was confused.  After hearing the submissions of Mr Gunson, I became more confused as to what property was there and what property was not there.  That is not a criticism of Mr Gunson, but there needs to be clear and precise definition of what property there is, where it is.  I will be making an order requiring the husband to file an affidavit setting out full details of all of his assets and liabilities and I will be also making the order for disclosure as per part 8 of the Legal Personal Representative’s Application.

11. I will, however, note that some of those documents may be difficult to be produced, having regard to their being overseas, although I would expect, if documents are not produced, an affidavit to be filed setting out what efforts have been made and why that has not been produced so it is not left in abeyance.  I also add that I discharged an order requiring the husband to be present in Court on this occasion for the reasons that I explained to the parties and their representatives during the course of the discussion between Bench and Bar.  However, given the submissions made by all three counsel, I will be issuing a warrant for him to attend Court on the next occasion.

12. However, I would ask Ms Foale to reiterate to her client that she has the speaking part.  He does not have a speaking part.  If he chooses to interrupt when he comes to court, I will adjourn the proceedings.  I will have him removed and I will proceed with the matter in his absence. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 September 2016.

Associate:     

Date:              11 October 2016