PROSSER & PROSSER

[2015] FamCA 787

FAMILY COURT OF AUSTRALIA

PROSSER & PROSSER [2015] FamCA 787

FAMILY LAW – PRACTICE AND PROCEDURE – Service – Where the husband seeks to join the wife’s adult son to the proceedings – Where the application has not been able to be served on the wife’s son – Where the wife lives with her son – Where the husband seeks an order for substituted service – Order made for substituted service by delivery of the documents upon the wife.

FAMILY LAW – INJUNCTION – Ex parte and Interlocutory – Where the husband seeks an order that an injunction be granted against the wife’s son restraining him from dealing with a unit property without the written consent of all parties – Where it is found to be appropriate to make the ex parte injunction to protect the property in the interim – injunction granted. 

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Mr Prosser

RESPONDENT: Ms Prosser

FILE NUMBER: BRC 1320 of 2015

DATE DELIVERED: 24 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Andrew of Counsel

THE RESPONDENT: In Person

Orders

1. That service of the husband’s Application in a Case filed on 26 June 2015, in which he seeks orders as against Mr J, upon Mr J, be effected by substituted service of that Application in a Case and supporting Affidavit upon his mother, the applicant wife in the proceedings, Ms Prosser, by regular post to her address at K Street, Suburb G in the State of Queensland which is her current address for service on the court file, and also by attachment of the said documents emailed to her email address ….

2. That the further hearing of the Applications in a Case filed on 26 June 2015 and 21 August 2015 be adjourned to the Judicial Duty List before Justice Forrest commencing at 10.00 am on Tuesday, 6 October 2015.

3. That until further order, and on an ex parte basis, the respondent wife’s adult son, Mr J, is restrained and an injunction is hereby granted restraining him from dealing in any way with his interest in the real property situated at K Street, Suburb G in the State of Queensland, more particularly described as Lot … on Building Unit Plan …, County of M, Parish of N, Title Reference No …, including by selling, gifting, otherwise transferring, encumbering or further encumbering, without the prior written consent of the husband.

4. That insofar as the husband has not complied to this point in time, with disclosure obligations in respect of the following documents, he shall produce for inspection by the wife within three weeks of today’s date all of those documents that are set out in (a), (b) and (c) under paragraph 4 of the wife’s Response to an Application in a Case filed 20 August 2015, save for sub-paragraphs (c)(iii) and (c)(iv).

5. That the husband’s and wife’s costs of and incidental to the hearing today are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prosser & Prosser 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 BRISBANE

FILE NUMBER: BRC 1320  of 2015

Mr Prosser

Applicant

And

Ms Prosser

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings in this matter between the wife, Ms Prosser, and the husband, Mr Prosser, have been before me now on an interim basis on a number of occasions this year since having been transferred from the Federal Circuit Court to this Court’s list of contested property adjustment applications.

2. Relevantly for the purpose of today’s determination, on 29 May 2015 I ordered that the wife take all steps that were necessary, including by signing and filing all necessary documents to cause a caveat that she had caused to be registered over the real property at C Street, D Town in the State of New South Wales, to be removed from the title of that property as soon as possible. I made other orders that are not relevant to the determination of this.

3. On 26 June 2015, the husband filed another Application in a Case in which he sought an order effectively seeking to enforce the Order that I have just referred to because at that time, on 26 June 2015, the wife had failed to comply with the Order that I have just referred to. He sought an order from this Court effectively enforcing my previous Order by authorising a Registrar of the Family Court of Australia, Brisbane Registry, to sign documents in the place of the wife to effect removal of the caveat that I had ordered about a month before to be removed.

4. Relevantly, there were urgent circumstances in that the evidence that I had considered in May when I made the Order, included evidence from a bank who were the providers of mortgage finance in respect of the property that they required, and had required for many months, repayment of the debts that were secured by mortgages over that property and also over the property of the elderly mother of the husband. The bank’s position was that if those debts were not able to be repaid or refinanced then enforcement action was going to be taken to enforce the mortgages, including by sale of the property of the husband’s elderly mother in which she lived in northern New South Wales.

5. Included in the Application in a Case filed 26 June 2015 was an application for two orders relating to one of the adult sons of the wife by a former relationship, namely Mr J. Firstly, the husband was seeking an order that Mr J be joined as a party to the proceedings and that an injunction be granted against him in respect of a unit property situated at K Street, Suburb G in the State of Queensland, that he not deal with that property in any way, save with the written consent of all of the parties or a further order of this Court.

6. Briefly said, the circumstances surrounding that relate to the following factual scenario:

   ·The husband and the wife were married for eighteen and a half years and separated sometime last year.

   ·In 2007, during the course of the marriage this particular property had been purchased in Suburb G by the parties and registered in the name of the wife.

   ·The wife says that it was purchased by deposit being paid by her sons. The factual circumstances surrounding the purchase are not entirely clear to me and nor are they immediately relevant to the determination of the matter before me today.

   ·Unilaterally and without notice to the husband, at a time on or about their separation last year, the wife transferred all of her right, title and interest in the property in Suburb G to her son, Mr J, and the evidence is that she did that for natural love and affection.

7. The husband, whose adult son of a former marriage had already been joined as a party in these proceedings by the wife for what I can simply describe as not too dissimilar reasons in respect of the transfer of a property from the husband’s name to his son’s name, naturally became concerned when he learned of the transfer by his former wife to her son of this property and, for that reason, seeks to join Mr J in these property adjustment proceedings so that an application by him pursuant to s 106B of the Family Law Act 1975 (Cth) (“Family Law Act”) can be prosecuted and properly considered by the Court.

8. The difficulty facing the husband is that Mr J has not been served. The matter came back before me on that application that was filed on 26 June, on 6 July 2015. On that day after the parties appeared before me, the wife who had relied on the fact in evidence that she had intended to appeal the interim order ordering her to cause the caveat to be removed, and intended as part of that appeal process to seek a stay of the order pending the determination of her appeal, informed the court that she had in fact not done either of those things. I was aware of that in any event as the appeal period had run out about a week or so before the appearance before me on that day and no application for a stay had been made. When I asked her what her intentions were and what she was going to do, Mr Selfridge of Counsel, who appeared that day for the husband, requested a brief adjournment so that he could speak with the wife. They went outside and the Court was later informed that the wife signed the requisite release of caveat document then and there.

9. The balance of the Application in a Case had not been able to be served on Mr J before then and the matter was adjourned until today’s date with a view to effecting service upon him in the meantime. The question of the costs of the husband’s enforcement application for that day was reserved until today as well.

10. Evidence that I recall in these proceedings is that Mr J also lives at the property at K Street, Suburb G, where the wife has taken up residence since separation last year after having left northern New South Wales. She lives there not only with that adult son, but her other adult son, Mr O. Relevantly, the other adult son, Mr O has been at Court with the wife on each and every occasion that the matter has been before me this year.

11. Today the wife, who is a native Country P speaker, is assisted by an interpreter as I understand it for the first time in all of the occasions she has appeared. Previously she was assisted in the interpreting process by her adult son who was, with my leave, allowed to sit beside her as her McKenzie friend on each of the previous occasions.

12. I have reason to be satisfied that her adult son, Mr O who sits beside her and has sat beside her on each occasion is educated at University. I have some recollection that he is studying law, but I may be wrong. He is an educated and intelligent young man who I have no doubt, given the length of time he has been in the country and the fact that he is studying at a university here in Brisbane, has a very good grasp of the English language and has understood everything that I have said and has therefore been able to advise his mother appropriately.

13. Indeed the mother confirmed this morning that the written submissions that she handed up to me today, including references to cases that have clearly been well researched have been produced with the assistance of her son, Mr O, who sits there beside her.

14. On Friday 21 August, the husband caused another Application in a Case to be filed in the registry with a supporting affidavit in which he seeks an order for substituted service. The affidavit includes evidence of his efforts to have located Mr J and to have served him. In the circumstances, I am satisfied that the husband and his solicitors have attempted appropriately and reasonably to serve him but have been unable to. I am rather concerned in the circumstances, having regard to the fact that the wife’s evidence previously was that she was residing there in that unit with the two adult sons, that there is what I might describe as a “head in the sand” approach to this issue at the moment and a deliberate avoidance of dealing with the question of service in an appropriate way.

15. The documents of course were only filed on Friday and this morning when Mr Andrew of Counsel who is representing the husband today appeared at Court, he informed the Court that he had attempted to pass these documents to the wife outside the Court and that she had refused to accept them. She has told the Court that she was scared of Mr Andrew’s approach, suggesting to me that he dealt with her in an aggressive and scary manner. That, I must say, is simply by the by for me and I am not interested in trying to determine where the truth of such an assertion might lie. What is relevant is that the documents were attempted to be given to the wife and she refused to take them. In any event, I ensured that they were handed over to her at the commencement of the proceedings.

16. Included in the Application in a Case is an application for substituted service to be effected pursuant to the Family Law Rules 2004 (Cth) (“the Rules”) on Mr J by serving the wife at the address of K Street, Suburb G, and at an email address that she provides which is … and the wife confirms that is her email address. Included in the application also is an application for an order that Mr J actually be joined and also an application for the injunction that is sought against him in the initial Application in a Case to be made today. As well, there is an application for the costs that were reserved from 6 July to be heard and determined.

17. In all the circumstances of this case, I am satisfied that a substituted service order is indeed appropriate and should be made today. The husband has appeared on each occasion that the matter has been before the Court with legal representation and I accept, from the evidence that I have seen, that it is costing him a lot of money. The wife had legal representation initially but at some stage chose for whatever her reasons are, to represent herself with the assistance of her son on an ongoing basis. It is not in the interests of the parties in this particular case, nor all of the other parties who are litigants in this Court’s lists, for this matter simply to go on and on and on and to come back before this court time after time after time.

18. In that context I consider it appropriate, bearing in mind that I have no doubt that the wife and her son are in regular contact and communication with Mr J and that having had knowledge of the application to join Mr J and for an injunction against him, for over a month at least, nearly six or seven weeks, for substituted service to be effected upon Mr J by delivery of the document to his mother. I am satisfied that it will be brought to his attention if it has not been already.

19. I asked the wife how long it should be before it should come back before the Court for Mr J to be able to determine his position in the case. She was not able to assist me and said, when I asked her if she knows where he is, that she did not wish to answer that question, rather than saying that she did not know where he is.

20. The circumstances also present me with satisfaction that it is appropriate to make an ex parte injunction against Mr J to protect the property in the short period that will now transpire between today and the time when it comes back before me after service has been effected by the substituted service order. I intend to do that, bearing in mind the circumstances that satisfied me that avoidance and failure to cooperate with the Court or refusal to cooperate with the Court’s process is evidenced to my satisfaction on the circumstances that have transpired to this date. I am satisfied that there is a need for the interim injunction in respect of this property just to protect the husband’s rights pursuant to s 79 and s 106B of the Family Law Act pending the appearance of Mr J and submissions made on his behalf about the issue of the injunction and his joinder in the proceedings.

21. In respect of the costs application I intend to adjourn that to the next date when I list the matter for as well because of the fact that the wife was only given notice of that effectively this morning and has a right to put on some material in response.

22. The wife in her Response seeks orders for disclosure, save for a couple of those that I identified as being inappropriate orders to make. The husband, through his counsel, says, firstly, that he has complied substantially with a lot of the disclosure obligations that the wife seeks to impose upon him again through that document and I note in that regard that there has certainly been previous disclosure orders made in his court and documents provided by the husband.

23. There may very well be something in his assertion that he has substantially complied already. However, through his counsel, he indicated that he was prepared to consent to the order to the extent that he has not already complied and asked for a period of three weeks within which to do that.

24. Accordingly I make the following Orders.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 August 2015.

Associate: 

Date:  23 September 2015