Nestor and Ripley

[2018] FamCA 947

FAMILY COURT OF AUSTRALIA

NESTOR & RIPLEY [2018] FamCA 947

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing – Application refused.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Mr Nestor

RESPONDENT: Ms Ripley

FILE NUMBER: MLC 7837 of 2017

DATE DELIVERED: 20 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Tisher Liner Fc Law

THE RESPONDENT: In person

Orders

1. The husband’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.

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 Nestor & Ripley 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 MELBOURNE

FILE NUMBER: MLC 7837 of 2017

Mr Nestor

Applicant

And

Ms Ripley

Respondent

REASONS FOR JUDGMENT

1. The husband, who is the applicant in the proceedings, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The application is opposed by the wife.

2. On 24 September 2018 Registrar Jenkins made the following orders:

   …

   4.That all extant applications of all parties are adjourned to a date to be fixed before the Honourable Justice Johns to determine whether to expedite the final hearing.

   5.That by 4 pm on 8 October 2018, the party seeking the expedited hearing, file and serve a summary of argument in bullet point form, setting out the matters upon which the determination is to be made.

   6.That within 7 days of receipt of the applicant’s summary of argument, the responding party, file and serve a document indicating his or her support of or objection to the application for expedition.

   7.That all parties file the documents required by these orders by email to the Associate to the Honourable Justice Johns at …

   8.That unless Her Honour determines otherwise, the determination of the issue of priority be heard and finalised in chambers.

3. On 8 October 2018 the husband filed his submissions seeking an expedited hearing.

4. On 15 October 2018 the wife filed submissions opposing the husband’s application.

5. These are my Reasons for Judgment in respect of the husband’s application.

Background

1. The husband is aged 67 and the wife is aged 68. They are both retired.  The wife is self-represented in the proceedings.

2. The husband resides in Country B and the wife resides in E Town, Victoria.

3. The parties have one adult child of the relationship, aged 22.

4. The parties married in 1994 in the US. The wife deposes that the parties moved to Country B in April 1995.

5. The wife deposes that in September 2001 the wife and the parties’ child moved to Australia. The husband remained in Country B.

6. On 30 March 2016 the wife commenced legal proceedings in Country B for a property settlement (“the Country B proceedings”). Judgment was delivered in respect of the Country B proceedings on 23 March 2017. Those proceedings dealt with the parties’ interests in property held in Country B and bank accounts held in Country B, Country C and Australia. The Country B proceedings did not deal with the parties’ real property in Australia or the Nestor Family Trust. The husband was ordered to pay the wife €155,899.82 (“the Country B settlement”). The husband had one year to make the payment pursuant to the Country B settlement.

7. On 4 August 2017 the husband initiated proceedings in this Court seeking final property orders.  The wife filed a Response on 1 December 2017 seeking orders that these proceedings be stayed pending a determination of appeal proceedings in the Country B Appeals Court.

8. It appears to be common ground between the parties that the principal interests the subject of these proceedings are the property at D Street, E Town (“the E Town property”) registered in the wife’s name, which both parties assert is currently valued at approximately $4,000,000, and the Nestor Family Trust.  The value of the parties’ interest in the trust is disputed.

9. On 8 March 2018 Registrar George made orders by consent that the husband pay to the wife $10,000 by way of partial property settlement and restraining the wife from enforcing the terms of final orders of the Country B proceedings made on 23 March 2017 until on or after 8 September 2018.  Orders were also made for disclosure.

10. On 10 August 2018 at the conclusion of the Conciliation Conference orders were made by Registrar Jenkins as follows:

    1.These proceedings are added to the list of cases awaiting allocation to a judicial docket with priority from 8 March 2018.

    2. That the parties forthwith obtain a written appraisal of the property at [D Street, E Town] in the State of Victoria (“the [E Town] property”).

    3.        That for the purpose of paragraph 2:-

    (a) The Husband nominate three (3) proposed real estate agents with expertise in the local area within 7 days;

    (b) The Wife select her preferred real estate agent from the 3 nominated by the Husband, within 7 days of receiving the Husband’s nomination; and

    (c) The Wife allow the selected real estate agent access to the property within 14 days thereafter.

    4. That the parties do all acts and things, within 21 days, as may be required to appoint a single expert Accountant to value The Nestor Family Trust, at their equal shared expense.

    …

11. On 21 August 2018 the wife filed an Application in a Case seeking the following order “WE SEEK A DISMISSAL OF THE CASE”.

12. On 17 September 2018 the husband received a summons from the court bailiff in Country B to meet the Country B settlement in 10 days. The husband asserts that he sought a further delay of six months, but that this was rejected and that the bailiff has sought to seize all of his property in Country B and his bank accounts. 

13. On 18 September 2018 the wife filed an Amended Application in a Case seeking the following order “I SEEK DISMISSAL OF THE CASE”.

14. On 24 September 2018 Registrar Jenkins made orders providing for the filing of submissions in relation to the application for expedition. Registrar Jenkins also adjourned the wife’s Amended Application in a Case to the Judicial Duty List on 4 December 2018.

Legal Principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge.

2. In determining an application to expedite the first day, r 12.10A of the Rules provides that:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

   (b)  whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

   (c)  whether the applicant is suffering financial hardship that:

   (i)  is not caused by the applicant; and

   (ii)  cannot be rectified by an interim order;

   (d)  whether the continuation of interim orders is causing the applicant or a child hardship;

   (e)  whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

   (f)  whether the case involves allegations of child sexual, or other, abuse; and

   (g)  whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Discussion

1. The husband in his submissions does not directly address the matters contained in rr 12.10A(2)(a)-(c) of the Rules. Similarly, the wife’s submissions do not address those matters which the court may take into account in determining the husband’s application for expedition.

2. Doing the best I can, as to the question of whether the husband has acted reasonably and without delay, it is the husband’s position that after the final orders were made in Country B, he endeavoured to negotiate an overall settlement with the wife which included an adjustment with respect to the E Town property and the Nestor Family Trust.  He submits that when it became apparent that those negotiations were fruitless, he commenced proceedings in this Court, that application being filed in August 2017.

3. The orders of Registrar Jenkins dated 24 September 2018 made provision for the parties to file submissions seeking an expedited hearing and the husband filed his submissions on 8 October 2018 in compliance with those orders.  Having regard to the husband’s conduct I am satisfied that he has acted reasonably and without delay.

4. Neither the husband nor the wife make submissions as to any prejudice that may be suffered by the wife if the matter were to be expedited. Therefore in the absence of submissions or evidence to the contrary, I am satisfied that the wife would not suffer prejudice if the matter was expedited.

5. Rule 12.10A(2)(d) of the Rules requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).

6. The husband’s submissions focus on the financial hardship he alleges to be suffering as a result of the wife’s pursuit of her entitlements arising under the Country B settlement. His submissions in relation to his financial situation can be summarised as follows:

   ·    A delay in the final hearing would mean his recent financial material produced in June 2018, which was at significant expense to the parties, will become outdated and require further updating;

   ·    The parties need a final hearing date to better manage the husband’s legal expenses and the costs associated with obtaining valuations;

   ·    Neither party has access to income or financial resources to readily fund the current proceedings;

   ·    The husband’s financial position has become “even more tenuous” as a result of the interim freeze and seizure of his assets in Country B;

   ·    If valuations are obtained and they need to be updated there will be a further expense to the parties;

   ·    The parties are drawing on capital to live.  It is submitted that an expedited hearing is required in order to provide the husband with capital from the E Town property which he needs “in order to financially support himself moving forward”;

   ·    The husband may require costly medical treatment in the future; and

   ·    The husband has continued to maintain the Nestor Family Trust at “significant expense” and that the continued maintenance and operation of the trust “depends in part upon the repayment of a loan, which can only be satisfied from the sale, or refinance of the E Town property”.

7. The husband also submitted that in the event that he is not successful in obtaining a stay of the operation of the Country B settlement, the bailiff in Country B will foreclose on his house “leaving the Applicant Husband effectively homeless and with nominal cash reserves with which to support himself moving forward”.

8. The wife rejects the husband’s contentions. She submits that the husband has funds available to him to meet his obligations under the Country B settlement and support himself either from property in Country B or from the Nestor Family Trust.

9. The wife further submits that the husband receives an income of approximately $130,000 per year from the Nestor Family Trust and relies on the husband’s Financial Statement filed in this Court on 4 August 2017 in which the husband discloses his income from the trust at approximately $2,353 per week.   It is the husband’s position that his bank accounts in Country B have been frozen.  However, as noted above, it would appear that the husband still has on foot proceedings in Country B to stay the operation of the Country B settlement. 

10. The husband also submits there is an “interrelationship between the resolution of the Australian proceedings and the discharge of the Country B settlement”. The wife disputes the interrelationship between the two proceedings. The husband asserts that in order for him to retain a property in which to “house himself” that “any entitlement he has in the E Town property should be offset against what he needs to meet in order to pay our the Respondent Wife in respect of the Country B settlement”.

11. The determination of the dispute between the parties as to the nature and value of their interests are matters for the trial judge.  Given the income disclosed by the husband in his Financial Statement, I am not in a position to make any findings as to whether he is suffering financial hardship.  If he is suffering financial hardship, the question then is whether such financial hardship is able to be rectified by way of interim order.  In my view the answer to that question is yes; the husband’s submissions would suggest that he has proceedings on foot in Country B to seek a stay of the operation of the Country B settlement.  Similarly, there is no impediment to the husband seeking interim orders in the Australian proceedings.    

12. Rule 12.10A(4)(a) of the Rules allows the court to consider whether the physical health of a party would affect the availability or competence of a party. The husband contends that as he has to travel to Australia from Country B for the trial, it would assist him if he knew the trial date to enable him to make arrangements for his attendance, “especially whilst his current health enables him to travel”. The husband provides no evidence as to any condition diagnosed which would impede his ability to travel. Whilst I have no doubt that it would be convenient for the husband’s planning purposes to have a trial date, absent evidence as to any medical condition, I do not accept that the husband has any health concern that necessitates the expedition of the proceedings.

13. The wife has filed an Application in a Case seeking orders that the husband’s application for final orders be summarily dismissed.  That application is listed in the Judicial Duty List on 4 December 2018.  In my view that application must be determined on its merits before the matter is listed for final hearing.

14. The wife also submits that the husband has not made full and frank disclosure in relation to the Nestor Family Trust.  The husband disputes that contention.  Ultimately the determination of that issue will be a matter for the trial judge.

Conclusion

1. Whilst the husband may be suffering financial hardship, in my view that situation may be remedied by interim orders.   It would appear from his submissions that the husband has proceedings on foot in Country B seeking a further stay of the operation of the Country B settlement.  If successful in that application, the husband’s contentions as to the necessity for an expedited hearing dissolve. 

2. The reality is that the material filed to date paints a murky picture as to the parties’ financial circumstances.  Each asserts that the other has control of assets in which they have an interest.  It is also contended by the wife that as a result of the Country B settlement, there is no basis for the husband’s claim in these proceedings.  She also asserts that the husband has access to income through the Nestor Family Trust.  The determination of these issues requires a testing of evidence at trial. 

3. I do not accept the husband’s submissions in relation to his health, given the absence of evidence to support his contentions.

4. Ultimately I must determine whether this matter should be given priority to the possible detriment of other cases. Other matters awaiting hearing involve serious allegations of child abuse and where it is alleged that children are at risk of harm.  Against this backdrop, I cannot justify affording this case priority. Where the Court’s resources are ever diminishing whilst its work load continues to grow, the husband’s assertions of financial hardship do not provide sufficient bases to grant this matter priority.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 November 2018

Associate: 

Date:  20 November 2018