PLANTIER & PLANTIER

[2020] FCCA 1399

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLANTIER & PLANTIER [2020] FCCA 1399

Catchwords:
FAMILY LAW – Property – Interim proceedings – failure to comply with orders – failure to provide full and frank disclosure – request to set aside orders.

Legislation:

Family Law Act 1975 (Cth), ss.79A, 106A

Federal Circuit Court Act 1999 (Cth), s 45

Federal Circuit Court Rules 2001 (Cth), rr.14.01, 14.02

Cases cited:

Kelleher & Anderson [2007] FAMCA 137

Weir & Weir (1993) FLC ¶92-338

Applicant: MR PLANTIER

Respondent: MS PLANTIER

File Number: DGC 1773 of 2019

Judgment of: Judge Baker

Hearing date: 26 May 2020

Date of Last Submission: 26 May 2020

Delivered at: Hobart

Delivered on: 5 June 2020

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: N/A

Counsel for the Respondent: Mr Barnayannis of Counsel

Solicitors for the Respondent: B Lawyers

DECLARATION

1. It is declared that it is appropriate in the administration of justice to allow discovery and interrogatories.

ORDERS

1. The husband has leave to administer to the wife specific questions by 19 June 2020 regarding the removal and/or sale of any/all items by her from the G Street, Town H property or the storage facility at J Street, Town K from 11 October 2019 to the current date.

2. By 11 July 2020, the wife file and serve sworn answers to the specific questions.

3. By 11 July 2020, the wife file and serve an affidavit of documents, which relate to sale proceeds of any/all items removed by the wife from the G Street, Town H property or the storage facility at J Street, Town K from 11 October 2019 to the current date, including but not limited to the items listed at paragraph 7 and 8 of the husband’s affidavit sworn 29 January 2020.

4. By 11 July 2020, the husband comply with the orders made by consent on 16 September 2019 and file and serve an affidavit of all relevant documents in his possession, custody or power.

5. In the event that the wife fails to execute any document or do any act or thing required of her, to give effect to order 4 of the orders made on 11 October 2019 within seven days after the documents have been provided to her for that purpose, then upon proof by affidavit of such refusal or neglect, the Registrar of the Federal Circuit Court do sign on her behalf and execute all necessary documents or other instruments and do all such acts and things to give effect to the terms of the orders.

6. The applications in a case filed 31 January 2020 and 26 February 2020 be otherwise dismissed.

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

A FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

DGC 1773 of 2019

MR PLANTIER

Applicant

And

MS PLANTIER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application in a case filed 31 January 2020 by Mr Plantier (“the husband”) for interim orders enabling him to implement the terms of the orders made 11 October 2019 relating to the sale of the property situate at G Street, Town H in Victoria (“G Street, Town H property”); and for the wife to provide an accounting of the items she removed from the G Street, Town H property and the storage facility following the making of the 11 October 2019 orders.

2. Ms Plantier (“the wife”), who is currently self-represented, opposed the application. She filed an application in a case on 26 February 2020 and sought further disclosure from the husband; for him to account for any and all outstanding trade debtors due to him as a former professional during the marriage, paid since the orders of 16 September 2019; the ability to pursue outstanding fees owed to the husband from his time at the Employer L and to use those funds at her discretion; the ability to communicate directly with any person or entity regarding the husband’s financial affairs; and for the husband to be referred to the D Commission for investigation.

3. In her affidavit filed 4 February 2020, the wife also requested that an order be made that the orders of 11 October 2019 be set aside pursuant to section 79A(1)(a) and the G Street, Town H property be returned to her and that she have sole use and occupation of the property.

4. The husband was represented at the hearing. The wife was self-represented. Submissions were made by counsel for the husband and by the wife. It became clear during the submissions that this is a matter involving high conflict.

5. These are applications seeking interim orders. In Kelleher & Anderson,[1]  Carter J made it clear that in respect of applications on the papers, “where affidavits contain irreconcilable and disputed matters of fact, a final determination of those facts usually cannot and should not be made until viva voce evidence and in particular, until after cross-examination.”[2] Carter J continued “… It is axiomatic that the court can only consider the evidence that the parties choose to put before the court…”[3]

   [1] Kelleher & Anderson [2007] FAMCA 137.

   [2] Ibid [53].

   [3] Ibid [62].

Documents

1. Both parties filed Case Summaries.

2. The husband relied on his affidavit filed 29 January 2020.

3. The wife relied on her affidavits filed 4 February 2020 and 24 February 2020.

Background

1. The parties married in 2010 and separated on 15 May 2019.

2. The wife is a student and allied health worker. She is 56 years old. Her living circumstances are unknown.

3. The husband is employed at Employer M. He is 67 years old. He lives in a rental property paying $370 per week.

Procedural History

1. The wife commenced her substantive application for property and spouse maintenance on 7 June 2019.

2. The first return date was on 16 July 2019. Directions were made for the filing of affidavits and the proceedings were adjourned to 11 October 2019 for an interim defended hearing.

3. On 11 October 2019, the wife’s application for spousal maintenance was dismissed and orders were made for the sale of a property after a defended hearing. The wife was represented by counsel, as was the husband, at the hearing. It was ordered as follows:

   …

   3. The wife’s application for spousal maintenance is dismissed.

   4. That the parties forthwith sign all documents and do all things to sell the real property known as and situate at G Street, Town H, in the State of Victoria (“the property”) and that for the purposes of the sale:

   a. The Wife vacate the property within 28 days, and she be and is hereby restrained from returning to the real property without the prior written consent of the husband or an order of this Honourable Court;

   b. Thereafter the Husband have sole use and occupation of the property for the purpose of preparing the property for sale;

   c. The Husband be at liberty to appoint an agent (“the selling agent”) for to conduct the sale and advise the Wife in writing of the name and contact details of the selling agent;

   d. The reserve price be as agreed between the parties and in the absence of agreement within 7 days of the appointment of the selling agent, as recommended by the selling agent;

   e. The method of sale be as agreed between the parties and in the absence of agreement within 7 days of the selling agent’s appointment, as recommended by the selling agent; and

   f. Liberty be reserved to the parties to apply to the Court in relation to any further terms and conditions of sale.

   5. The proceeds of sale of the G Street, Town H property be applied as follows:

   a. First to all costs, commissions and expenses of the sale;

   b. Secondly to discharge the mortgage secured over the property;

   c. Thirdly, to reimburse the Husband for any monies spent (at his discretion) on preparation of the property upon production of receipts;

   d. Fourthly, to be applied to reduce the debt owing to the Australian Taxation office in the name of the Husband including in proceedings […] between the Deputy Commissioner of Taxation and the Husband; and

   e. The balance (if any) to be held on trust for the parties by the solicitors for the husband with such proceeds not to be released without the prior written consent of the parties or an order of this Honourable Court.

   6. That the Husband be permitted to attend at the following properties on a date to be nominated by the Husband and relayed to the Wife care of her solicitor no less than 48 hours prior, and from 9am to 5pm on each such nominated date, within 14 days of the date of this Order:

   a. [J Street, Town K], and

   b. [G Street, Town H]

   for the purpose of collecting the Husband’s business, financial and personal records and personal possessions, and for the purposes of this Order the Wife be restrained from being present at the property at the time of attendance by the Husband but is permitted to have her step father, [Mr N], be present on her behalf AND IT IS NOTED that such attendance or presence does not of itself constitute a breach of any Intervention Order issued by the Magistrates’ Court.

   7. That until further Order, the Wife be restrained from selling, disposing of, of otherwise affecting any chattels or asset in her possession, custody or control.

   8. This is an Order to which section 68Q of the Family Law Act 1975 (Cth) applies and to the extent to that this order is inconsistent with a Family Violence Order, this Order prevails.

   9. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.

4. On 31 January 2020, the husband filed his application in a case for an order under s.106A of the Family Law Act 1975 (“the Act”) for the Registrar to be appointed to execute any deed or instrument in the name of the wife, and do all such acts and things required to sell the G Street, Town H property. 

5. On 26 February 2020, the wife filed her application in a case seeking disclosure and other orders set out in paragraphs 3-7. She did not include in her application in a case her request for an order pursuant to s.79A(1)(a) of the Act. She included this request in her affidavit filed 4 February 2020, which was made in response to the husband’s application in a case.

The husband’s application

1. Section 106A provides:

   (1)  If:

   (a)  an order under this Act has directed a person to execute a deed or instrument; and

   (b)  that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;

   the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

2. In order for s.106A to operate, there needs to be a finding that a party has refused or neglected to comply with an order.

3. In his Case Summary, the husband asserted that the wife has neglected to execute an exclusive sale authority as required by the real estate agent, despite numerous opportunities for her to do so. However, the husband did not give any affidavit evidence that he has given the wife any documents to sell the G Street, Town H property pursuant to order 4 of the 11 October orders. There is no evidence that he has advised the wife in writing of the name and contact details of the selling agent pursuant to order 4(b).  He has not given any evidence of the attempts made between the parties to agree a reserve price, or the method of sale pursuant to order 4(c) and 4(d).

4. Until the husband proves that he has done what is required by the orders of 11 October 2019, there is no basis to make an order under s.106A of the Act. Accordingly, I do not intend to make the order sought by the husband. He can immediately do all the things set out in the orders, so that the property can be placed on the market for sale. I will order that if the wife refuses to comply and evidence of that is given, the Registrar of the Federal Circuit Court can sign on her behalf and execute all necessary documents to give effect to the terms of the orders.

5. The husband deposed that pursuant to the orders of 11 December 2019, he attended the storage unit and found a message on the padlock to the storage unit which read, “fuck you cunt”. He found the storage unit with only a few items and left with little other than rubbish.

6. The husband also attended the G Street, Town H property to collect his belongings. He had given notice to the wife through her solicitors on 16 October 2019. His solicitors also sent an email to the wife dated 17 October giving her notice in accordance with the 11 October order that the husband would be attending the property on Saturday 19 October to collect his belongings. The wife did not dispute that she received this email.

7. The husband gave evidence that he attended the property with a small truck and two friends, but the wife was present at the property and refused to permit him entry to the property. The police attended, but were unable to enable him to collect his belongings.

8. He attended the property again on 23 November 2019, more than 28 days after the 11 October order requiring the wife to vacate the property. He could not gain access to any part of the house, as all the doors were locked. He could see through the windows that items had been removed from the home. The husband listed in his affidavit the belongings which he sought to collect and the items which he believes have been removed from the home. He also found that the back shed was locked and found three of his cats had died.

9. On 2 January 2020, the husband attended the property and then arranged for a locksmith to gain access to it. He found considerable damage to the interior and detailed this in his affidavit.  

10. The wife has not responded by affidavit to the husband’s allegations, notwithstanding that her two affidavits were filed after the husband’s January affidavit. She has not answered the allegations made by the husband in his affidavit filed 29 January 2020 about his attempts to collect his belongings, the damage to the property, or the removal of his belongings. She has not denied or contradicted his evidence. The wife made denials and assertions in her submissions, but there was no evidence from her.

11. In her Case Summary, she wrote that she vacated the property on 8 November 2019 and complied with the orders of 11 October 2019. This is not evidence. I therefore consider that the evidence has not been disputed by the wife.

12. The order sought by the husband at paragraph 3 is a request for a written account of what the wife has taken, but was not drafted in the form of a request for specific questions, but in the form of a request for disclosure. Orders can be made for discovery and interrogatories on the Court’s own motion, if the Court considers it appropriate in the interests of the administration of justice.[4] The documents sought are relevant and allowing discovery and interrogatories will likely be of benefit in this litigation.  I consider that it is appropriate in the administration of justice to make an order. I will also order that the husband has leave to deliver specific questions to the wife about removal of items by 19 June 2020. I will also order that by 1 July 2020, the wife file an affidavit in respect of all documents relating to the sale of any items removed by her from the G Street, Town H property or the storage facility at J Street, Town K.

    [4] Federal Circuit Court Act 1999, s 45; Federal Circuit Court Rules 2001, rr 14.01, 14.02.

The Wife’s Application

1. In her affidavit filed 24 February 2020, the wife made allegations of the husband’s lack of disclosure.

2. If full and frank disclosure is not made by a party, at a final hearing a court may make findings against that party.[5] It is therefore important that the disclosure orders be complied with, so that the financial positions of both parties can be determined.

   [5] Weir & Weir (1993) FLC ¶92-338.

3. On 16 September 2019, an order was made for each party:

   …to make full and frank disclosure in accordance with Part 24 of the Federal Circuit Court Rules 2001 and provide to the other party copies of all documents reasonably requested in writing subject to any objection to production including but not limited to [a number of documents set out in paragraphs a – h of the order].

4. Order 6 provided that:

   …should either party consider that there are documents which remain outstanding pursuant to order 5, they shall provide the other party with a list of the documents they say remain outstanding and the other party shall, within seven days of such request, provide the documents requested or a reason as to why those documents are not within their possession, power or control.

5. Counsel for the husband conceded that the husband had not complied fully with the requests for disclosure by the wife. In respect of proposed order 3, it was conceded that disclosure of outstanding trade debtors of the husband should occur in the normal course of disclosure.  

6. The husband did not file a response or an affidavit in response to the wife’s application in a case and affidavit in support. In the husband’s Case Summary it was stated:

   The husband as a member of the profession, is aware of his obligation to provide ongoing discovery of relevant documents that are within his possession or control and will continue to provide these documents when he is able to do so. The timing of the provision of documents will be addressed by Counsel in oral submissions.

7. The wife tendered an index of the husband’s discoverable documents as at 5 May 2020 and an index of documents still outstanding as at 18 March 2020.[6]

   [6] Exhibit W1.

8. Counsel for the husband submitted that disclosure should be completed by 11 July 2020 and the wife submitted that it should be completed by    20 June 2020.

9. I will order that the disclosure ordered on 16 September 2019 be completed by 11 July 2020, and I consider that the husband should make an affidavit of documents in the circumstances. This should give sufficient time for disclosure to be completed before the trial, which is listed on 6 and 7 August 2020.

Request to set aside 11 October orders

1. The wife has requested that the 11 October 2020 orders be set aside pursuant to s.79A(1)(a) of the Act, which provides:

   (1) where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

   (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

   ….

   the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

2. In support of her request, the wife asserted in her affidavit that the husband has misled the court by making false assertions and false denials. Her main complaint seems to be an assertion made by the husband that she has assumed control of cash in excess of $61,000 between January and June 2019 and has failed to account for it. The wife deposed that she accounted for this in her affidavit of 9 August 2019. She makes other complaints about the husband making denials about her evidence, or making assertions which she claimed were false. She deposed:

   The husband makes much of his expenses and budget, using it, along with the $61,000 issue very effectively to thwart my spousal maintenance claim. However, the husband has lied about his budget as the figures were not his…

3. The wife asserted:

   61. The husband has demonstrated a complete disregard and contempt for the court and the orders and obligations for full and frank disclosure. 

   62. The husband has demonstrated a repeated pattern of dishonesty that can rightly be categorised as perjury. 

   63. The husband cannot be trusted, and should be, in my respectful submission, referred to police and the D Commissioner and Commissioner for investigation and/or prosecution.

   64. For these reasons, the court can have no confidence that the husband is telling the truth about any issue in these proceedings, and thus I asked the court that my order to have the orders made on 11 October 2019 in this Honourable Court be set aside in the property situated at G Street, Town H be returned to me in its entirety, that I be given control and use of the husband’s trade debtors to attend to some living expenses and begin some repairs to my home.

1. At the hearing on 11 October 2019, the wife was represented by counsel.  The orders were made after a contested interim hearing. The matter was heard on the papers without cross-examination and findings of disputed matters would not have been able to be made. 

2. The wife did not appeal the orders made, but waited until 26 February 2020 to file her application, which is an application for disclosure and other orders. 

3. Her assertions made in her affidavit appear to be in support of a request to set aside the orders as they relate to her spousal maintenance claim, rather than her request that the property situated at G Street, Town H be returned to her and that she have sole use and occupation of the property.

4. This is supported by her Case Summary, in which she sets out:

   …

   2. The Husband coerced the Wife into resuming a marital relationship with him on or about 19 March 2019 with the preparation of a spousal maintenance arrangement put to her by him, in writing between 19 – 31 March 2019.

   3.  The Husband refused to honour his agreement with the Wife, forcing her to file an application on 7 June 2019 for spousal maintenance.

   4.  The application was refused at the hearing before Judge Mecuri due in part to the Husband repeatedly making the deliberately false statement that I had up to $61,000 in my possession as cash taken from the husband’s various bank accounts.

   5.  Despite providing a full accounting of the alleged $61,000 the Husband was successful in having a spousal maintenance application dismissed…

5. The wife’s request to set aside the dismissal of the spouse maintenance order on 11 October 2019 pursuant to s.79A(1)(a) is misconceived. If she wanted the order “set aside”, she should have appealed the order. Section 79A relates to alteration of property interests.

6. There is no evidence to persuade the court that the orders relating to property made on 11 October 2019 should be set aside on the grounds set out in sub-paragraph (a) of s.79A(1).

Other orders sought by the Wife

1. I do not consider it appropriate and there is no evidence to persuade the court to make the orders sought by the wife in paragraphs 4 to 6 of her application in a case.

2. I agree with the submission of Counsel for the husband that it is not clear what power the court has to make proposed order 4, and in in the context of a high conflict matter, it would be inappropriate to order that the wife have “control of any remaining outstanding trade debtors of the husband to collect, call in and use at her discretion without reference to the husband.” In any event, there is no evidence to justify making such an order.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Baker

Associate: 

Date: 5 June 2020