Roberts and Inkster

[2009] FamCA 686

FAMILY COURT OF AUSTRALIA

ROBERTS & INKSTER [2009] FamCA 686

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Financial disclosure of assets outside of Australia – Refer to Registrar for financial conference

Family Law Act 1975 (Cth)

APPLICANT: MS ROBERTS

RESPONDENT: MR INKSTER

FILE NUMBER: MLC 2924 of 2009

DATE DELIVERED: 20 JULY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 20 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR HOLMES

SOLICITOR FOR THE RESPONDENT: RENNICK & GAYNOR

Orders

IT IS ORDERED:

1. THAT Registrar Sikiotis be appointed as the Registrar responsible for the management and co-ordination of this file.

2. THAT within 28 days the wife make, file and serve:

   (a)an Application specifying the particular property and financial orders sought pursuant to section 79 of the Family Law Act 1975 ;

   (b)an Affidavit supporting that Application; and

   (c)a Financial Statement disclosing the available net assets of the parties all which currently remain under their respective power, possession or control.

3. THAT within a further 21 days the husband make, file and serve:

   (a)his Response;

   (b)his Affidavit in reply and in particular specify all net assets of the parties.

4. THAT the Registrar conduct a telephone conference with the solicitor for the husband and the wife (telephone …) to ascertain the state of preparedness of the proceedings and, if appropriate to appoint a financial conciliation date.

5. THAT the wife have leave this day to inspect the documents produced to court by the National Australia Bank and ANZ Bank, such inspection to take place within the area designated by the subpoenas clerk and for the wife to have the right to copy documents at her expense.

6. THAT likewise the solicitor for the husband hereafter have the right to inspect all documents subpoenaed to court on appropriate conditions within the court.

7. THAT the extempore reasons for judgment delivered this day be transcribed, placed upon the court file and made available to the parties.

8. THAT leave be granted to the husband to file the affidavit of his solicitor this day.

9. THAT the case remain docketed to Young J.

10. THAT the issue of the personal attendance of the husband and wife at the next court event in Melbourne be reserved to the Registrar or otherwise be referred to Young J for determination.

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. The matter of Roberts & Inkster is before me this morning by way of an adjournment from an earlier hearing before me, on 7 April 2009.  Mr Holmes, of counsel, appears for the husband, who is not present in court.  The wife appears in person.  When the matter was last before me, I made by consent various orders for the financial disclosure of information by the husband to the wife, and ongoing interim restraining orders and further orders as to discovery and valuation.  There is a notation to the order of 7 April, stating that:

   “The husband, in his evidence, has undertaken to the court that he will return to Australia and will use his best endeavours to coordinate his return with the return hearing date of 20 July 2009.  The husband will advise his solicitor, on the record, as soon as practicable, of any variation in his return date”. 

2. When the matter was last before me the wife was represented by solicitor and counsel.  She now acts for herself and a notice of address for service has been filed, disclosing that she lives at C Street, N, Western Australia.  I understand from her submissions this morning that as a matter of financial necessity she lives there with her mother and her adult daughter, who has attended court with her this day. 

3. The husband remains represented by Mr Gillard of the firm, Rennick & Gaynor of Victoria.  There is a lack of financial information before the court and certainly on the current documentation filed the court cannot ascertain the financial orders, specifically sought by the wife, and the information of a financial basis which supports those orders. 

4. When the matter was last in court, there were various questions asked of the husband, both by myself, and by counsel for the wife, and a transcript of those proceedings of Tuesday, 7 April 2009 was taken out and placed upon the court file and made available to the parties.  It is clear from that documentation that efforts were made to then ascertain from the husband that he would and could be in Melbourne today, though I carefully note order 14 does record the observations of the court that the husband’s intention was to use his best endeavours to be here on this day. 

5. As matters transpired, the husband is not here.  He says that he is seeking employment in Europe, prior to the long holiday period when no jobs will be on offer, and his position to the court is that, currently, he is acting in his best interests to get employment.  That may or may not be the case, I simply make no finding on that scenario. 

6. The affidavit of Mr Gillard, filed with leave of the court today, and only read by the wife, in court, this day, highlights the various letters that have passed between practitioners as to financial issues in dispute, but more particularly as to the request for the adjournment.  It is said that that issue of the adjournment was first raised in, or about, early June of this year.  That is identified in paragraph 5 of the affidavit.  Thereafter, there were other inquiries made throughout June, but there has been no agreement to any adjournment. 

7. The wife has travelled here this week, first, for the Federal Magistrates Court divorce application, last Thursday, and then, for this mention today.  I use the word “mention” carefully, because there were orders requiring documentation to be filed and the adjournment of the matter was of the wife’s application for interim orders to this day. 

8. Various subpoenas were made returnable today, and I will permit the wife to immediately access the ANZ Bank and National Australia Bank documents.  She remains on a search for financial information.  The wife has told the court of her observations in Malaysia, of the husband’s store and the level of product carried in that store, and she would allege that stores elsewhere are operating at full capacity, and that the husband should be receiving income royalties or dividends therefrom.  That may or may not be correct. 

9. Otherwise, there are issues raised about the agricultural business and/or the husband’s past and perhaps ongoing involvement therewith, and any income or other financial benefits that he may continue to receive therefrom. 

10. These matters are, of course, a matter of contest, with the evidence of the husband either before the court, or the basis of the submissions of Mr Holmes this day.  As an overview, the husband’ position is that there is no financial offer or settlement to the wife, and in response the wife seeks an appropriate financial sum, by way of property and financial settlement. 

11. The gulf between these parties is significant.  The matter is not ready to proceed as any form of second day, less adversarial hearing.  The wife must, particularly, itemise the financial orders she seeks and the financial information which proves her claim.  She must identify the available net assets upon which an order may be made.  In passing, the wife has raised with the court, the option of transferring the hearing of this matter to Western Australia, where she now resides.  There is no application before the court today, and I will not entertain that order at this stage. 

12. I have been asked to fix a financial conciliation conference when the husband is in Australia in August. There are no available dates. In any event, this matter has yet to be assigned to a Registrar. The matter is simply not ready to proceed. The court does not understand the orders sought and there is no particular financial information and detailed assessment of assets, or estimate of what is the net pool of assets in this case available for distribution between the parties, even if it were warranted, by reference to section 79(4) and section 75(2) of the Family Law Act 1975. These are all matters that the wife must understand and address.

13. I have endeavoured to explain to the wife that the court does not conduct its own investigations.  It operates as a decision-maker and must listen and receive evidence from the parties, including specific valuation evidence and make an alteration of property interest and divide the property between the parties, in accordance with the evidence.  The obligation to put the evidence before the court, falls squarely on the shoulders of the parties to the case. 

14. I do harbour a very real concern about how this matter will ever be fairly and properly prepared, about how the evidence will be ascertained, and how the matter will be in a place for determination.  I repeat that is the responsibility of the parties.  The husband’s obligation is to make, and to continue to make, full and proper financial disclosure and ensure that the wife has a complete understanding of his commercial property and business dealings, within and without of Australia. 

15. From what Mr Holmes has submitted to the court this day, the husband has significantly complied with those obligations already, although the wife wholly disputes that assertion.  A number of significant matters need careful attention.  Primarily it is said that the assets of the husband, or indeed the income or royalties received by the husband, arise from shops and businesses outside of Australia. 

16. The husband is now a resident of the United States of America, seeking employment elsewhere in Europe and has no intention of returning to Australia, or to the jurisdiction of this court.  The wife is resident in Perth, and seeks the proceedings to be in Australia, and currently they are in the Melbourne Registry. There is the past agricultural business that is the subject of continuing investigation. 

17. I have raised with the wife the necessity for her to consider the jurisdictional aspects of this case, both as to the basis of exercising power of the court, but, more particularly, as to what orders can be made against what assets, if and when appropriate, and how they would be enforced by an Australian court, when the source of the business assets (as alleged) may be overseas, and income payments or royalties or other payments are also made overseas, and perhaps beyond the jurisdiction of this court as to enforceability. 

18. I carefully make no orders as to any of those matters, and make no further observations, but the obligations clearly are on the parties to identify assets within the jurisdiction of this court, pursuant to which orders could be made, if just and equitable, in accordance with section 79(2) of the Family Law Act. 

19. I have touched upon these matters in this extempore judgment so there is a record upon the file of such matters.  The wife’s current position is she has no funds, no income, is living with her mother in Perth, and believes that there is, and should be, a settlement of property in her favour. 

20. The husband, as I understand the submissions of his counsel this day, would contend that there is, and should be, no settlement of property, and either that whatever is appropriate has already been given to the wife, or there are no such assets and no financial resources available for distribution.  Whatever it is, the future investigations of the wife and/or the preparation of this case and/or any defended hearing may ascertain this matter is far from ready.

21. I propose to assign the matter to Registrar Sikiotis, and would hope that she would be able to conduct a telephone mention as between the solicitor for the husband, and the wife (in person), within the next six to eight weeks.  In the meantime, the obligation of the wife will be to file with the court an application specifying the financial orders she seeks, and an affidavit supporting those orders, and, in particular, identifying and valuing the available financial assets, or income, or royalty stream, that she alleges continues to flow to the husband, either within or without of Australia. 

22. I will make orders for the release of the bank subpoenaed documents for examination by the wife within the confines of the subpoenas clerk room this day, and she may copy documents at her expense.

23. At this stage I do not intend to require the husband to be here in August.  First, I have no available dates for hearing;  secondly, the case is not prepared to that extent;  thirdly, there is the cost of the wife returning to Melbourne, which is beyond her means;  and, finally, the husband is supposedly doing his best to find a job and income in Europe or the world beyond Australia, and says he has limited time and money to be here. 

24. I had contemplated an order for the husband to pay the wife’s costs of today in terms of travel, but that is inappropriate, given paragraph (14) of the orders, and, more particularly, given that the wife had elected to be here for the purposes of her divorce application last week, and the fact is she made subpoenas returnable today and needed to inspect all of the documentation, which she can now do.

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

………………………………………………………..
Associate: