Nest and Nest

[2007] FamCA 852

FAMILY COURT OF AUSTRALIA

NEST & NEST [2007] FamCA 852

FAMILY LAW - PROPERTY SETTLEMENT – Injunctions - Adjournment of proceedings

Family Law Act 1975 (Cth)

APPLICANT: MR NEST

RESPONDENT: MS NEST

FILE NUMBER: ADF 1320 of 2006

DATE DELIVERED: 15 August 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Self-Represented

Orders

1. The matter is adjourned to the 7 September 2007 at 9.45 am before The Honourable Justice Burr in the Judicial Duty List and on that occasion indicate that the matters which are required to be determined are the:

(a)interim application of the wife set out under document 18 (amended Form 2 application filed on the 5 July 2007);

(b)response to that application filed by the husband on the 8 August 2007 (document 24);

(c)application in a case Form 2 filed by the husband on the 10 August 2007 (document 26).

1. The husband to file and serve his affidavit in reply to the affidavit of the wife filed on the 24 July 2007 (document 20) by 4.00 pm on the 29 August 2007.

1. The husband to file and serve his Form 1A Response within seven [7] days from today.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dawe delivered this day will for all publication and reporting purposes be referred to as NEST & NEST

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1320 of 2006

MR NEST

Applicant

And

MS NEST

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application that has come on before me.  The proceedings commenced some time ago in September 2006 and have been transferred between the Federal Magistrates Court and the Family Court of Australia.  Both parties have chosen to remain unrepresented.  They have filed documents, many of which are in an unsatisfactory form. 

2. The Form 2 applications in the case were listed before Strickland J in June of 2007 when he gave leave to the parties to file further documents and adjourned the matter to a registrar.  Since that time the parties have each filed further documents, being affidavits and applications in the case.  The husband, before me today, foreshadows his imminent filing of an amended final response in which he seeks final orders concerning one of the children in the marriage, A, who will be 18 next April. 

3. When the matter came on before me this morning, initially the parties appeared to agree with my interpretation of the notation of Registrar Thomas which appears to indicate that on 12 July 2007 Registrar Thomas adjourned the matter to a Judge on a date to be advised to consider the "caveat issue only" with an indication that a pre-trial conference was required for final orders.  Subsequently this matter has been assigned to Registrar McMahon for his management, with a view to preparing the matter for final trial.

4. When the matter came on before me, however, the wife indicated that she now continued to seek certain orders in relation to the amended application in a case filed on 5 July 2007, being document 18, other than the first paragraph, which was seeking an order that the Court order the husband to “forbid the registration of any dealing with any estate or interest in the properties at [S] and [K], unless such dealing is made subject to the claim of the wife”.  That was paragraph 1 and that is the part which I interpreted to be referred to, somewhat inaccurately, by Registrar Thomas when she referred to the matter being referred for consideration of the “caveat issue only”.

5. The other matters in the amended Form 2 application of the wife referred to matters which would most properly be dealt with only when a Judge has before him or her all factual matters and arguments concerning the final disposition of the financial proceedings between the parties. 

6. This morning the wife, indicated that she wished to proceed by way of interim argument in relation to not only the injunction sought in relation to both the husband's solely-owned property and the jointly-owned K property but also to seek orders in relation to her ability to access both properties, to view them on a regular basis, orders that the husband keep the properties in good condition and orders that the front unit of the former matrimonial home be rented out, or, in the alternative, that the husband vacate the matrimonial home and the wife and children occupy that property.

7. The wife in her submissions referred to affidavits she has filed and which she asserted she had served on the husband.  However, when he commenced his submissions the husband asserted that he had not received document 20 on the file, which is the affidavit of the wife sworn on 21 July 2007 and filed on 24 July 2007, which is a short affidavit with some annexures.  In that affidavit the wife asserts, amongst other things, that the husband has forged her signature or scanned her original signature onto a document without her consent and is guilty of fraud.  In particular, she asserts that his behaviour in this regard forms some of the basis upon which she would assert that she is entitled to an injunction restraining the husband from dealing with the S property or the K property.

8. The wife asserts that the husband was served with the affidavit and denies that he has not had an opportunity to respond to the affidavit.  The husband has indeed responded in detail to much of the material which is already on file, although, as is the case in relation to many of the other documents from either of the parties on the file, the documents in their present form are of an unsatisfactory nature, indicating clearly that neither of the parties has had the benefit of proper legal advice.

9. Nonetheless I am satisfied that it would not be appropriate to continue with the matter without the opportunity of the husband having his response to those serious allegations before the Court.  I offered the husband an opportunity for him to give oral evidence and be cross-examined by the wife on the basis that the wife could also be cross-examined on her affidavit material in document 20, but the husband declined that opportunity, seeking to respond in writing.

10. When considering whether to adjourn the matter I have to weigh, very carefully, the interests of justice and ensure that, where possible, one party is not significantly or inappropriately disadvantaged by the adjournment in this matter.

11. Considering the seriousness of the allegation made by the wife it is appropriate that the husband have an opportunity to put his version of the facts, on oath, before the Court.  In considering the difficulties faced by the wife I take into account the allegations she makes about the serious financial disadvantage which she has faced compared to that of the husband, pending the resolution of this matter. 

12. No doubt when the matter comes on before a Judge for final hearing that Judge will take into account, as he or she is required to take into account, the contributions of the parties towards the assets and liabilities, including any failure of a party to act in a manner which would ensure that the properties and the parties' assets are maintained in a way which ensures that a proper return for the investment is achieved. 

13. If the allegations of the wife in relation to the husband's failure to obtain appropriate benefit from the properties is substantiated, no doubt that failure of one party or other to make an appropriate contribution will be taken into account by the Judge who hears and determines all of the matters in the appropriate way, in accordance with the Family Law Act and the decisions of the Court.

14. In my view, therefore, the difficulties which the wife asserts she is faced with, whilst I appreciate they exist, are not those which cannot be remedied in due course.  The justice of the case requires the husband be given an opportunity to respond to the serious allegations made by the wife.

15. My concern is that the availability of judicial hearing time is such that the next available date for mention before a Judge is 7 September 2007, when the matter could be mentioned but not could be in a list which would allow more than one hour's argument.  In my view this matter is one which should be able to be properly processed in the course of the normal hearing of matters and would indeed not be a difficulty if the parties had sought proper legal advice.

16. I believe that the interim matters listed for hearing should be capable of being determined within that time.  In considering the need to balance the disadvantages of the delay suffered by the wife and the need of the husband to file his affidavit, I propose to adjourn the matter to 7 September 2007 at 9.45 am before The Honourable Justice Burr.  On that occasion I indicate that the matters which will require determination are the interim applications of the wife set out in document 18, being her amended form 2 application filed on 5 July 2007, the response to that application, which appears to be filed on 8 August 2007, being document 24, and the application of case form 2 filed on 10 August 2007, being the application by the husband, document 26.

I certify that the preceding sixteen [16] paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe 

Associate: 

Date:  21 August 2007