Roberts and Inkster

[2010] FamCA 22

FAMILY COURT OF AUSTRALIA

ROBERTS & INKSTER [2010] FamCA 22

FAMILY LAW – PRACTICE AND PROCEDURE – Application seeking dismissal for want of prosecution – Further incomplete evidence and submissions before the Court

Family Law Rules – r10.12, r 11.06

An & Zhu (2006) FLC 93–257
Birkett & James (1978) AC 297 at page 312

APPLICANT: MS ROBERTS

RESPONDENT: MR INKSTER

FILE NUMBER: MLC 2924 of 2009

DATE DELIVERED: 18 JANUARY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 JANUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: NO APPEARANCE

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR GILLARD

SOLICITOR FOR THE RESPONDENT: LANDER & ROGERS

Orders

IT IS ORDERED:

1. THAT all extant applications be adjourned for listing as a defended matter before Young J on Thursday 11 March 2010 at 10.00 a.m.

2. THAT the husband, subject to representation by his solicitor, be excused from personal attendance at that further hearing.

3. THAT on or before 9 February 2010 the husband cause to be filed and served:

   a)an updated affidavit of and related to the issues of ownership, management, production, sales and income received from the L Business;  and

   b)an updated statement of his financial circumstances.

4. THAT if the wife is to make, file and serve any updated application or affidavit then she must make, file and serve any such document on or before Tuesday 2 March 2010.

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

6. THAT the husband’s cost of representation by his solicitor this day, and for a period of one (1) hour, be reserved for submission and consideration on the adjourned hearing date.

IT IS NOTED:

A.THAT on the adjourned hearing date, and subject to the further affidavits filed and issues then before the Court it is a real option for the Court, and the intended course of submission on behalf of the husband to have all proceedings dismissed for what he intends to prove to be a want of prosecution or otherwise a proper application for summary orders on the basis of Family Law Rule 10.12.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2924 of 2009

MS ROBERTS

Applicant

And

MR INKSTER

Respondent

REASONS FOR JUDGMENT

1. This matter, again, returns to court this day on outstanding property applications.  Mr Gillard, solicitor, appears for the husband who is not present in court nor in the country.  The wife is not present in court and is currently residing in Western Australia where her address for service is recorded care of Post Office Box …Western Australia.

2. What has occurred since my last order and reasons for judgment of 25 November 2009 is that the wife has caused to be filed two affidavits, filed 5 January and 11 January of this year.  In the first of those affidavits, she has purported to place photocopied documents or pages extracted from the internet before the court to identify that the husband is continuing to deal in, trade or sell and derive income from the L Business, established in and around central Victoria.  In particular, the list of businesses or outlets that stock that product or other shipping records or documents are exhibited without explanation.

3. The latter affidavit places before the court an article written by a Mr S providing commentary on the various products produced by or on behalf of L Business and where they can be supplied in and around Pennsylvania, U.S.A.  Again, there is little fact or relevant financial commentary arising from annexing that article found through the internet. I observe that the wife continues to do so in the context that “I am seeking a settlement from my ex-husband” – as detailed in paragraph 1 of that further affidavit.

4. Mr Gillard has not seen that 11 January 2010 filed affidavit and my court officer will photocopy that document and provide him a copy today.  Other than those two affidavits filed by the wife and since my last orders, Ms J, a former de factor partner of the husband and owner of a freehold property at D, Victoria, has filed an affidavit on 21 December 2009.  Her issue is that the wife has lodged a caveat upon that property, which was the subject of an informal and out of court property discussion as between the husband and Ms J.  That caveat remains on title and Ms J and her solicitors are seeking the dismissal of all property proceedings in this court involving the husband so they are then free to approach the Registrar of Titles, or otherwise the Supreme Court of Victoria, to have that caveat removed from what is said to be Ms J’s property.

5. The only other documents filed have been affidavits by way of confirmation of service of Ms J’s affidavit upon the wife or otherwise the various documents that I required to be served upon the wife pursuant to my orders of 25 November 2009.  I am satisfied that there has been compliance by way of service with my earlier orders.  I do not propose to repeat the matters that I touched upon in that ex tempore judgment of last November.  Many of the matters remain current and I incorporate into these reasons those issues of relevance.  It is very appropriate to refer to paragraph 19 of that judgment and the acknowledgment by letter from the wife therein documented that:

   “Furthermore, I will be unable to invest a significant amount of time and money in this case with so little results.  The sooner this can come to a conclusion the better.  I leave the decisions of this case in your good hands”.

6. The court on that previous occasion was asked to consider the dismissal of proceedings for want of prosecution.  I identified and considered the Family Law Rules and matters discussed at some length in that ex tempore judgment.  Mr Gillard today has raised again, but has not actively sought on this occasion the dismissal of the wife’s claim for any settlement of property.  He referred me to the Family Law Rules, Rule 10.12 which deals with applications for summary orders and in particular to sub-paragraphs (c) and (d) thereof.

7. Otherwise, the dismissal for want of prosecution is clearly provided for in Rule 11.06 and that matter was considered by me on the last occasion and remains ultimately the objective of the husband.  What is a real issue today is the current evidence of the husband before the court, upon which the court could place reliance in determining his financial circumstances including any income or ownership of asset and an explanation of any continued dealings with the L Business.  Mr Gillard referred me to his affidavit filed 13 November 2009, court document 30 in the index of the court file.

8. That affidavit of the solicitor annexes an affidavit and a financial statement of the husband.  Unfortunately, neither the affidavit or financial statement are sworn by the husband and thus are before the court for no more than background material.  I have been referred to, and have read, paragraphs 29-34 (inclusive) of the husband’s affidavit dealing with the injection of moneys by his mother into the business.  I have also been referred to the updated position as stated by his accountant, Mr G.  I have read the unsworn financial statement.

9. Mr Gillard rightly acknowledges that what must be before the court from the husband is an updated affidavit as to the facts and circumstances of the financial relationship of the parties, highlighting the L business, the husband’s ongoing work and income of and related to that venture or otherwise generally, and the extended Inkster family ownership and dealings with that business, including the corporate ownership structure and some understanding of the current workforce and practice of the business, the production of products and the sale of products, and where the husband does or does not fit into that continuing work and corporate structure.  It has been suggested by the court and agreed to by Mr Gillard that his client will make, file and serve a meaningful affidavit and an updated, accurate and all-inclusive financial statement by 9 February of this year.  Those documents must immediately be served upon the wife.

10. Within that timeframe I will thereafter adjourn all extant applications to be listed before me on Thursday 11 March of this year at 10.00 a.m.  I will excuse the husband from attendance at court on that day.  I do not know the circumstances of the wife leading up to any appearance at court on that day.  She needs to understand that the court is endeavouring to obtain from the husband an updated and specific statement of facts of and relevant to his corporate and working circumstances and his income from all sources.  If she is to respond by meaningful documents, and not merely exhibiting extracts obtained from an internet search, then she can and should file and serve documents with the court and upon the husband’s solicitors well prior to Thursday 11 March.  If the wife wishes to be present, that would be helpful, but only with a meaningful legal submission or additional facts of substance for the court.

11. As I emphasised to the wife in the concluding paragraphs of the ex tempore reasons for judgment of November last, somewhere, somehow, sometime this matter must soon conclude.  Evidence must be put before the court and, as difficult as that may be the wife does have a responsibility to put her case, and the facts and issues relied upon, to the court.  From the submissions of Mr Gillard, it would seem that there is no apparent and significant legal or financial issue confronting Ms J.  He does not represent her but she owns the property in D, subject to the acceptance of the financial arrangement between her and the husband, and is not planning to sell or urgently seek the removal of the caveat.  I do not know if the wife continues to challenge that property transfer as seemingly all of her inquiries are currently directed to the business and the husband’s ownership thereof, or income received there from.

12. I have concluded that the prudent course of action is not, at this stage, to exercise any powers of dismissal for want of prosecution.  I am mindful of the reasons provided by the Full Court in the reported decision of An & Zhu (2006) FLC 93–257, in particular reading paragraph 89 of that judgment and identifying the discussion quoted therein from the reported House of Lords decision in Birkett & James (1978) AC 297 at page 312. All of those issues of want of prosecution, dismissal and related issues remain for another day. That said, some finality must be approaching in this case and I do need further material and facts before the court to satisfy either a continuation of any ongoing property proceedings or otherwise a dismissal of the various applications before the court on the basis of a want of prosecution thereof.

13. I will have these brief reasons transcribed, placed upon the court file, and they will be forwarded by my associate, together with the orders to the wife at her Western Australian post office box, and otherwise to the husband.  It is not the obligation of the court to forward these orders or ex tempore reasons for judgment to Ms J, but that course of action can be undertaken by Mr Gillard by way of professional co-operation with the solicitor for Ms J.

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

………………………………………………………..
Associate: