Poyzer & Tritton

[2008] FamCA 929

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON [2008] FamCA 929

FAMILY LAW – PRACTICE AND PROCEDURE – application by husband seeking adjournment of trial and leave to sell specified properties – long running proceedings – trial commenced November 2007 – where husband claims to be at disadvantage due to lack of representation – where husband unable to pay lawyers – adjournment refused – property to be sold pursuant to previous order.

FAMILY LAW – CHILDREN – where husband has arranged to take child overseas without permission of wife – whether child should be permitted to leave country – child permitted to travel overseas, with conditions placed upon husband.

Family Law Act 1975 (Cth)

APPLICANT:  Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 27 October 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-Represented

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT:

Ms E.F. Nelson QC

with Mr Whittle of Counsel

SOLICITOR FOR THE RESPONDENT: David M. Davidson

Orders

BY CONSENT IT IS ORDERED THAT

1. Both parties to sign all documents and do all things necessary to bring about the sale of the property at … in the United Kingdom (“the United Kingdom property”) for the sale price of ONE HUNDRED AND SEVENTY SEVEN THOUSAND POUNDS STERLING [₤177,000.00].

2. The parties are to instruct Simkins Lawyers in the United Kingdom to carry out all steps necessary to complete the settlement of the sale of the United Kingdom property.

IT IS FURTHER ORDERED THAT

1. The proceeds of sale of the United Kingdom property be paid to the wife’s solicitors trust account initially, then to be held upon trust for the payment of outstanding legal fees of each party (50 per cent to be held in trust for the payment of the wife’s outstanding legal fees and 50 per cent to be held on trust for the payment of the husband’s legal fees).

2. The husband’s Application in a Case filed on the 17 October 2008 is dismissed.

3. Further consideration of the wife’s costs application is adjourned to the conclusion of the evidence at the trial on the basis that the husband has therefore an opportunity to obtain legal representation to assist him in presenting the argument to the Court about the costs.

4. Further consideration is adjourned in relation to the sale of M property, in the State of South Australia (being a property which the husband asserts he owns jointly with Mr D) to after the Court has heard the evidence of Mr D.

5. The net proceeds of any sale of the property at M, in the State of South Australia, are paid initially into the trust account of the wife’s solicitors to await further order of the Court with liberty to the husband to apply in relation to the dispersal of those proceeds.

6. The parties’ child has permission to travel overseas with the husband on the following conditions:

   (a)the husband pay the outstanding school fees to H College by the 5 November 2008;

   (b)the husband provide to the wife by the 5 November 2008 copies of all tickets, being airfares or other travel arrangements for the whole of the trip, together with particulars of itinerary giving detailed dates and addresses of where the child will be residing during his absence overseas, together with telephone numbers and email addresses upon which the child can be contacted in the United States and the United Kingdom;

   (c)provide a letter to the wife from H College confirming that the school has no objection to the child travelling overseas from 11 November 2008 to the 15 December 2008.

7. The resumption of the part-heard trial adjourned to Tuesday 28 October 2008 at 10.00 am before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

MR POYZER

Applicant

And

MS TRITTON 

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This application was brought by the husband by way of application in a case filed on 17 October 2008 in which he sought orders that the matter be heard urgently and "that the trial of this matter be adjourned for approximately six months".  He also sought orders that he be given leave to sell the properties at W and P and keep all of the proceeds to fund the resumption of the trial of this matter and “reduce debt”.

2. Further, paragraph 4 sought that he be given leave to sell his property at S owned by L Corporation (a trust in which he has a 50 per cent holding) “to fund the resumption of the trial and reduce debt”.

3. In support of that application the husband has filed an affidavit to which is annexed correspondence. 

4. The wife has filed a response objecting to the adjournment of the trial and seeking other orders in relation to certain matters (which I have not dealt with completely at this stage) and an affidavit in response.

5. I have received, today, a further affidavit of the husband together with more correspondence annexed to it.  I have also received exhibits, this morning, in reference to the application for the adjournment.

6. The husband appears unrepresented this morning, which is the resumed date of the trial.

7. To put this matter in context, the proceedings before the Court have been outstanding since 2001.  The application for property settlement commenced in November 2001.  That is approximately seven years of litigation.

8. The documents on file, not including the documents which I received today, amount to 285 documents.  I note that the exhibits which I have received in the trial are now in excess of 200 exhibits.

9. The trial commenced before me in November of 2007, having been prepared for trial by way of numerous interim proceedings.  The trial commenced before me on 5 November 2007, when both parties were represented by senior counsel:  Miss Pyke QC for the husband and Ms Nelson QC for the wife.  The trial continued on 5, 6, 7 and 8 November 2007, 12 November through to 16 November 2007.  Again the matter was heard by me, in late November 2007 and in December 2007.

10. The trial resumed before me in March 2008 after other interim orders were made.  Further interim orders were made in March 2008 and the trial came on again before me on 26 March 2008, occupying 27 and 28 March 2008, when it was adjourned to 21 April 2008.  Subsequently I heard further evidence on 21, 22, 23 and 24 April 2008, when the matter was adjourned, specifically, part-heard to today for two weeks before me.

11. Subsequently there have been other interim proceedings and at those interim proceedings it has always been made clear that the matter was to resume as a part‑heard trial before me on 27 October; namely, today.

12. The basis of the husband's application for the adjournment is that he would be disadvantaged because he is now unrepresented.  It appears to be asserted, from his affidavits, that he is unrepresented because he owes money in relation to his previous legal representation.  His affidavit and his submissions before me also relied upon the fact that he believed, until very recently, that the wife was going to seek an adjournment of the trial because of funding difficulties which she had in relation to securing ongoing legal representation.

13. The affidavit filed by the husband, however, refers to him owing money to his solicitors and counsel.  It says, because he cannot afford legal fees he has filed a notice representing himself.  He then refers to the need to sell properties to arrange to have funds to pay his lawyers.  From that I am asked to draw the conclusion that his lawyers have refused to act for him in his present circumstances.

14. By letter to the wife's solicitors of 1 September 2008, the husband wrote to the wife's solicitors saying that he owed counsel and his solicitors over $180,000 and “While I am currently a self-represented litigant, I intend to be represented at trial and will require a further 70 to 100 thousand dollars for that.”  This was in reference to the sale of a property in the United Kingdom, which has been the subject of an order for sale for a considerable period of time.

15. The affidavit material and the annexures provided by the husband when the application was filed, and subsequently today, do not in my view sufficiently explain the attempts of the husband to make financial arrangements which would be to arrange for his ongoing legal representation in these proceedings.  As has been pointed out by counsel for the wife, there has been an order for the sale of the property in the United Kingdom for some considerable time and that property is unencumbered. 

16. Orders have been made on 19 March 2008 that on sale of the property in the United Kingdom one-half of the proceeds were to go to the husband.  The property is now the subject of an offer for sale of ₤177,000 pounds sterling (which is the equivalent of approximately $A450,000) leaving a substantial sum in excess of $225,000 being payable to the husband when the sale is concluded.

17. It is correct to say that this offer of sale was only a recent event.  However, the equity in the property has been a matter known to the husband for a considerable period of time.  I am not given any indication of any arrangements the husband might have entered into with his solicitors and counsel for the equity to which he is entitled to be provided to them by way of some future security for the payment of their past and future costs.

18. There is also the property at W, which is in the husband's name.  Correspondence which the husband has provided, and indeed confirmed by the wife's counsel, is that she has never had any objection to the sale of that property.  Whilst the husband says he did not receive clear indication as to how he could deal with the proceeds of sale, I am not satisfied that that omission, if it existed, is sufficient excuse for him not to have attempted to have made specific arrangements for organising his legal representation, bearing in mind that the W property is valued in the region of some $615,000 with an indebtedness of some $387,000, leaving an equity of approximately $213,000 which could be used by the husband in an appropriate way to secure the payment of his legal fees.

19. I also take into account the husband's assertion that the wife through her solicitors suggested that, at some point in the adjourned part of the trial, she was having difficulty raising funds and may well seek an adjournment of the trial.  I also take into account that the husband's response was that he would oppose such an adjournment.  The only application for an adjournment of the trial has come from the husband at a very late stage.

20. I have to balance the factors in relation to the need to do justice to both of the parties and weigh that up carefully.  In the history of the matter, however the husband has not taken appropriate legal advice nor taken the necessary steps to secure his ongoing representation, notwithstanding the substantial equity in properties which has been available to him for a considerable period of time in particular available to him since the matter was adjourned in April of this year.

21. Weighed up against that is the disadvantage to the wife in having the arrangements she has put in place to have counsel and senior counsel available for the hearing for the next two weeks, and her personal financial arrangements, which are put on hold until the conclusion of these proceedings which have been outstanding for many years.

22. Weighing up the balance of the factors, I propose to hear the other applications in a case filed by the wife and then adjourn the matter for the remaining part of today, to resume the trial tomorrow morning on the basis that, faced with the Court's refusal to adjourn the application any longer, the husband will have an opportunity to take appropriate urgent steps to have himself represented before me for the remainder of the two weeks for which this trial is listed, so that all parties can benefit from an immediate resolution of the proceedings.

23. I have also been asked to make an order which provides for the proceeds of sale of the United Kingdom property to be paid to the wife's solicitors' trust account, with the monies then to be divided equally between the parties.  I understand that is an order which can be made by consent, and will be an advantage to the husband in making arrangements to be represented.

24. I confirm that consideration of the balance of the requirement to do justice to both parties requires that the trial of the property settlement proceedings resume before me at 10.00 am tomorrow morning, to continue for the remainder of this week and the following week.  It is expected, therefore, that the husband will take all steps to provide his witnesses for the conclusion of the proceedings. 

25. The husband has made arrangements, without consulting the wife or obtaining her permission, to travel overseas with the child of the parties.  He informs the Court that he has made arrangements to leave Australia on 11 November and return on 15 December, using proceeds from the sale of a motor vehicle, tickets that he previously had purchased in relation to a prior trip and Frequent Flyer points.  That the husband did so without confirming the wife's consent to that arrangement means that he must have considered, quite clearly, there was a risk that he would not be permitted to take the child out of school and alter the weekabout arrangement which I understand currently exists for the child to reside with each of the parents. 

26. He now complains that he should be able to go with the child nonetheless.  He does this in the context that he can afford to travel overseas at little cost and that the wife is receiving funds on a regular basis from the business which exceed his drawings. 

27. These are issues that have to be determined in the final resolution of the proceedings.  It is clear that both parties assert that there are undisputed amounts owing to the child’s school in the sum of approximately $15,000.  Yet the husband seeks to assert that he can afford to take the trip overseas, notwithstanding the allegations about the difficulties in the business and difficulties in paying debts.

28. The husband wishes to travel overseas, again to visit relatives; in particular his brother who is ill.  The trip is not simply a trip to the United Kingdom but covers Helsinki, parts of the United States, the United Kingdom and Hong Kong.  The question of the funding of that trip will no doubt be an issue that is dealt with at the trial. 

29. The husband has previously asserted that he has been unable to borrow funds or find funds to meet the outstanding debt to his solicitors or to fund the ongoing trial in this matter. 

30. There may be an advantage to the child of a trip overseas.  It may be fair to the husband that he be able to visit his brother whom he says is not well.  There has to be, however, a balance of justice to the wife at the same time.

31. There is no established basis, at this stage, to restrain the husband himself from travelling overseas, save and except the question of the amount of money which he says needs to be expended to cover his costs.

32. Bearing in mind the net equity in various assets which form part of the husband's assets (and the fact that some of them are to be protected by holding the monies in trust) any adjustment of monies spent by the husband on this overseas trip can be carried out by way of final adjustment in the property settlement proceedings, if that becomes appropriate.

33. I therefore do not propose to restrain the husband from leaving Australia on the basis that he will be well aware that if he does not return or participate in carrying out any final orders of the Court then the Court is in a position to make appropriate costs orders against him and to make orders for other persons to carry out his responsibilities so far as completing any final property settlement orders are concerned.

34. In considering whether the child should be permitted to leave the country, I take into account that the husband has made the arrangements with the child, without consulting the wife or obtaining her permission.  This behaviour by the husband calls into question his capacity to encourage a meaningful relationship between the child and the wife.  His behaviour challenges the child’s loyalty to the wife (if he is told that the wife has prevented him from going on a trip which his father has promised him).  The failure to consult before promising the child a trip is a significant factor which does not indicate that the husband has the necessary capacity to consider the child’s welfare, nor that the husband willingly carries out his responsibilities as a parent.

35. I am told that the trip has been planned during school term, with the understanding of the school.  That information comes as hearsay from the husband's documents.

36. The husband says that he was waiting to see whether the trial was adjourned to determine whether, in fact he could keep the arrangements for the planned travel overseas.  It is therefore unclear, from his submissions, what disadvantage he would suffer if the trip for the child were planned at a later time that did not interfere with his schooling.

37. Weighing all of those factors up, but taking into account the difficulties the wife might face if the child were to be informed that the Court had prevented him from taking the overseas trip, it is appropriate in the child’s best interests that, with conditions placed upon the husband concerning the trip, the child should be able to undertake the travel. 

38. The conditions will be that the husband pay the outstanding school fees to H College by 5 November 2008, that the husband provide to the wife by 5 November 2008 copies of all tickets, being airfares or other travel arrangements for the whole of the trip, together with particulars of an itinerary giving detailed dates and addresses of where the child will be residing during his absence overseas, together with telephone numbers and email addresses upon which the child can be contacted in the United States and the United Kingdom, together with a letter from H College confirming that the school has no objection to the child travelling overseas from 11 November to 15 December. 

39. The trial is set to resume tomorrow.  I anticipate that steps can be taken to ensure that the trial is completed in nine days instead of the original 10 days set aside.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  31 October 2008