Reuters and Reuters (No. 2)

[2009] FamCA 185

FAMILY COURT OF AUSTRALIA

REUTERS & REUTERS (NO. 2) [2009] FamCA 185

FAMILY LAW – PROCEDURE – Case management – s 79A orders sought referred to Registrar for listing

Family Law Act 1975 (Cth)

APPLICANT: MR REUTERS

RESPONDENT: MS REUTERS

FILE NUMBER: MLF 2369 of 2007

DATE DELIVERED: 4 MARCH 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 4 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR LOVE

SOLICITOR FOR THE APPLICANT: AUSTRALIAN LEGAL ADVISORY CENTRE

COUNSEL FOR THE RESPONDENT: MS TULLOCH

SOLICITOR FOR THE RESPONDENT: NICHOLES FAMILY LAWYERS

ORDERS

IT IS ORDERED:

1. THAT all extant applications are referred to Registrar Kaur for further case management and referral to the list of cases awaiting hearing.

2. THAT within sixty (60) days the husband is to obtain, at his expense, a current market valuation of:

   (a)M property;

   (b)C property;

   (c)the mobile equipment;

   and thereafter serve those valuations upon the wife’s solicitors and make, file and serve appropriate affidavits with the court thereof.

3. THAT the husband do all acts and things and give all necessary instructions to provide to the solicitors for the wife all mortgage and bank statements and related documents evidencing any loan encumbering the title to the M or the C property (as are now held with Challenger Bank).

4. THAT the Registrar make such further practice directions as to mutual and informal discovery or other production of documents as are appropriate.

5. THAT until further order paragraphs 2, 4, 5 and 6 of the orders pronounced ex parte by the Chief Justice on 15 December 2008 be stayed.

6. THAT the husband pay to the wife the sum of $1,322 being costs which were fixed by Young J on the previous hearing date.

7. THAT the costs of and incidental to the hearing this day including counsel’s fees for appearance are reserved to the trial Judge.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2369 of 2007

MR REUTERS

Applicant

And

MS REUTERS

Respondent

REASONS FOR JUDGMENT

1. The matter of Reuters is before me in a judicial duty list.  It is 3.30 p.m. and I have other matters yet to be heard including an ex parte matter that is now being issued.  In this matter, Mr Love of counsel, appears for the husband who is applicant.  Ms Tulloch of counsel appears for the wife.  This matter did come before me on 21 January 2009 and I made various case management and procedural orders and for some reason brought the matter back before myself this day.

2. The background to this matter was covered in the ex-tempore reasons for judgment I delivered on that earlier occasion and I will not repeat all of those matters and facts.  There is on file a judgment delivered ex tempore and ex parte by the Chief Justice on 15 December 2008, where she made final property and financial orders and gave to the husband in paragraph (11):

   “Leave to apply or set aside or vary the orders within one month of service”;

   It was pursuant to that direction of the Chief Justice that the matter came before me within that time frame.

3. The husband is a resident of Qatar where he works in the building industry.  His counsel has indicated that he will likely soon be returning to Australia, probably from 1 July this year because of contraction in construction and lack of overseas work.  That may or may not be the case, but time will tell.

4. The initiating application filed on behalf of the husband seeks to set aside pursuant to section 79A of the Family Law Act 1975 those prior s79 orders of the Chief Justice. There is now an allegation of a miscarriage of justice both by reason of fraud and the giving of false evidence and indeed by any other circumstances.

5. The application seeks to identify, albeit somewhat briefly, the basis of the claim.  In support, there are affidavits filed by the husband and his current partner, Ms E, and also from the now instructing solicitor acting for the husband, Ms Dai.  I have read those documents together with the Form 13 financial statement.

6. Likewise, there has been a flurry of activity on behalf of the wife and she has now filed a response seeking a dismissal of the husband's claim and costs as previously reserved by me and ongoing costs.  There is a Form 13 financial statement filed this day on behalf of the wife and likewise an affidavit with a bundle of annexures thereto.

7. The first issue in this case really centres around the whereabouts of the husband when the matter was heard, his knowledge of the hearing date and/or his compliance with orders of the court to prepare the matter for hearing.  These are really a matter for future trial and will need evidence or cross-examination.  Other than that, I have carefully read and re-read the judgment of the Chief Justice.  What is clear is that her Honour proceeded upon a pool of assets which she found on the basis of a spreadsheet which had been presented to her.

8. Many of the significant items therein are now the subject of challenge by the husband and in particular, the M property, the C factory premises, subject to mortgage, and the valuation of the mobile equipment, then accepted by the court to be $300,000. I carefully make no determination of value and no determination of any issue. I have limited time before me in this duty list which is not the venue to hear and determine a disputed section 79A property settlement case, notwithstanding both counsel came to court on that basis.

9. I am satisfied that there is likely a real dispute as to the valuation of very significant items.  I was told from the bar table on behalf of the wife that there was a valuation of the M property shortly prior to trial of $340,000 obtained, but the estimate given to her Honour was $20,000 greater than that valuation, though I emphasise I have not seen the document and it is not in evidence.

10. Of far more concern is the financial discrepancy and the basis of valuation of the C property which seems to have been on some form of estimate of the wife, bearing in mind that there was again a form of valuation approximately twelve months earlier in the range of $700,000 to $750,000.  Seemingly some guesstimate of inflation was built into the wife's guess of value at $800,000.  Again I make no further comment or finding as to the value or the mortgage on that property.  I will require documents to be produced to ascertain what is currently the mortgage now with the Challenger Bank.

11. The equipment was valued at $300,000 or at least that was the figure before the court accepted for the purposes of the balance sheet by the Chief Justice.  Whether that figure was grossly inflated or not as the husband now alleges, again I do not determine, but there is certainly a concern that the asset pool will ultimately be less than that, as was before her Honour and probably as to the husband's assets which were alleged to be $1,102,000 will be considerably less, even allowing for the passing of time and the current financial crisis now facing the community.

12. I do not further consider the pool of assets as I am not determining the section 79A application or the property hearing. This matter comes before me because the Chief Justice specifically reserved to the husband a right, given that he had not appeared or argued his case before her, to set aside the orders. Pursuant to that, paragraph (11) of the orders December last year, and given that there does appear to be an arguable case as to some aspects of valuation then this matter should not be struck out today. The husband should be given an opportunity to prepare and prove his case.

13. I intend to require the husband to obtain, within sixty days, full and proper valuations of the M residential property, the C factory and the Australian-based equipment, accessories and business.  These documents must then be served upon the wife's solicitors.  I will also require the husband to produce bank statements from Challenger Bank in relation to the mortgages over M property and C property for the past three years, and on an ongoing basis.

14. I record that Mr Love has raised in court the issue of a resulting or express trust by which the husband's current wife is to be given an interest or equity in M property.  If so, that must be proved and any documents are to be made available.  If there are not documents, and I understand from counsel's submissions today there are not, then nevertheless that claim must be founded on proper evidence.

15. I repeat that I am not proceeding on any form of hearing as that is inappropriate in this list.  I propose to refer all extant applications to a Registrar to be afforded a date and time in the defended pool of cases.  I will assign the matter to Registrar Kaur, and she may determine hereafter what becomes of the management and timing of the proceedings and the many and further documents that will be filed.

16. I would see no benefit in the date being within the sixty day period of valuations and that would take us until May.  The husband returns to Australia after 30 June so solicitors may be able to deal with the matter in his absence but there certainly should be no hearing of the matter.  With the current list of cases there may be a hearing prior to 30 June 2009.  I will not tie the Registrar to any particular date.

17. Finally, I just want to repeat the observation I made to the parties during the hearing of this matter that what is needed is some commercial commonsense.  This will be an expensive matter to prepare for trial.  The assets may be limited and may have substantially decreased in value, but I carefully do not make that as a finding.  There is an issue of simply being realistic.  An exhaustive inspection and discovery process could not doubt be undertaken, but only at a significant cost.  Likewise, the transcript of the proceedings before her Honour may be ascertained, but again, at cost.  That is a matter that Ms Tulloch has raised with the court as to the necessity of obtaining that transcript, but I would not have the court take that document out at its cost.

18. I do hope that the solicitors and counsel spend more time trying to talk the parties through issues in this case and resolve the matters rather than merely resort to litigation, but ultimately that depends on instructions and of course one or both parties may wish to contest all matters, as is their right.

19. I will have these reasons transcribed, placed upon the court file and made available to the parties.  I emphasise that they were delivered ex tempore in a busy list where at quarter to four I still have three matters to return to hear and/or determine including an ex parte that is waiting outside of the court.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: