Roberts and Inkster (No 2)

[2010] FamCA 186

FAMILY COURT OF AUSTRALIA

ROBERTS & INKSTER (NO. 2) [2010] FamCA 186

FAMILY LAW – PROCEDURE – Undefended hearing – No appearance by wife – Satisfied as to service upon wife – Further affidavits filed – Adjournment with matter to be heard on relisting – Service upon wife

APPLICANT: MS ROBERTS

RESPONDENT: MR INKSTER

FILE NUMBER: MLC 2924 of 2009

DATE DELIVERED: 11 MARCH 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 11 MARCH 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

1. THAT all extant applications be adjourned for listing as a defended matter to proceed before Young J on Friday 19 March 2010 at 10.00 a.m. (subject to any part-heard defended matter).

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

3. THAT the solicitor for the husband make, file and serve a summary of argument on prior to 4.00 p.m. Wednesday 17 March 2010.

4. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties as a matter of urgency.

5. THAT the husband’s costs of representation by his solicitor this day, and for a period of three (3) hours, be reserved for submission and consideration on the adjourned hearing date.

6. THAT a sealed copy of this order be forthwith served upon the wife by the husband’s solicitors and an affidavit of such service be thereafter filed with the Court prior to the adjourned hearing.

IT IS NOTED:

A.THAT the solicitor for the husband has volunteered to the Court that, together with service by post to the wife’s registered address for service he will additionally scan the sealed copy of the Order made this day and/or reasons for judgment (when available) and serve them upon the wife by e-mail transmission.

.

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 is before me today as a consequence of paragraph 1 of my orders of 18 January 2010. On that day I ordered that all extant applications be adjourned for listing as a defended matter before me this day.  Mr Gillard, solicitor, appears for the husband and by paragraph 2 of the orders made on that prior occasion I excused his personal attendance from this hearing, subject to being represented by his solicitor. 

2. On that 18 January hearing date, there was no appearance by or on behalf of the applicant wife.  She has been called out of court this day and there is no appearance.  By paragraph 3 of those earlier orders I required the husband to make, file and serve both an updated affidavit and an updated financial statement and these are now filed with the court. 

3. The order further provided for the wife to file any further updated application or affidavit and in that regard the court has received and I have read the further affidavits of the wife affirmed 16 February of this year and filed 18 February and a further affidavit affirmed 23 February and filed 26 February. 

4. Additionally, and stapled to that further affidavit, was a financial statement of the wife, affirmed 23 February, which I have directed be filed separately this day.  I have now read each of those three affidavits. 

5. Likewise, I have read and been referred by Mr Gillard to those further affidavits of the husband filed 8 February of this year and additionally the affidavit of Mr G, chartered accountant, filed 9 February 2010.

6. I am satisfied that all of those documents have been served upon the wife and in that regard I have given leave for the further affidavit of Mr Gillard sworn yesterday to be filed this day, which comprehensively covers the actions in serving by post and email documents upon the wife at her recorded Western Australian address.  That service affidavit has various annexures thereto, enclosing the covering letters and, perhaps of significance, a responding email in reply from the wife sent Wednesday, 10 February at 1.27 p.m., by which it is clear that she had received that email transmission identified in paragraph 5 of Mr Gillard's affidavit. 

7. I have taken the opportunity to carefully re-read the various earlier ex-tempore reasons for judgment, which I have delivered in this continuing matter.  In particular I have had regard to the reasons for judgment delivered 20 July 2009 and more recently 25 November 2009 and 18 January of this year.  Mr Gillard has made various submissions to the court upon my prior orders and the very substantial opportunity which I have afforded the wife to put information before the court.  I intend to incorporate within these reasons those earlier judgments but in particular, as to the judgment delivered 25 November 2009, I do highlight paragraphs 9-22 (inclusive) thereof.

8. The further affidavits recently received from the wife highlight, perhaps in contrast to that which she had earlier forwarded to the court when the decision was to be left wholly to the court, that what is now sought by her is said to be a fair division of the asset, inclusive of D property, the L Business Group and the T Business Group (including the T franchise).

9. In the last of the affidavits received by the wife requests some form of urgent spousal maintenance either for herself or jointly for her adult daughter and herself.  The court is aware of the past monthly payments that were made by the husband up to April 2008 or thereabouts but none of those payments are now current.  I do not regard that first paragraph in that last received affidavit of the wife as being an application and if, indeed, urgent financial help is sought by the wife, that must be properly documented and applied for and be the subject of evidence before the court and, of course, thereafter stand the scrutiny of the financial capacity of the husband to pay.   None of those matters are properly before the court, nor is evidence before the court in such as way as to facilitate any such order being made.

10. In the course of submissions made over the past one and a half hours or thereabouts, Mr Gillard has, I think, rightfully highlighted Family Law Rule 11.06 could not or should not apply and that would seem both appropriate and correct.

11. I have previously, in my earlier judgments, considered Rule 10.12 and the application for summary orders in circumstances where on the one hand it may be proved to have been frivolous or vexatious or otherwise where there is no reasonable likelihood of success.  Mr Gillard is not pursuing any summary order made in those circumstances in this case and on the facts before the court. 

12. There remains, therefore, the undefended hearing of the section 79 application of the wife.  That was clearly intended to be listed this day and is before me for hearing in the absence of the wife. 

13. What I intend to do is to further adjourn all extant applications to next Friday, 19 March at 10.00 a.m.  On that day I will direct Mr Gillard to prepare and hand to the Court a summary of argument primarily dealing with the various affidavits that have been filed as to the assets, financial resources and liabilities of the parties and that will aid the undefended hearing of the wife's primary application. 

14. In the conventional section 79 approach to hearing and determining a just and equitable settlement of property, I will have regard to the assets of the marriage such as they exist and can be shown upon affidavit material to be available to the parties and to the court for any division thereof.  Likewise, any resources or superannuation of the party will be highlighted to the court, as will all liabilities. 

15. There are already before the court affidavits filed by other than the husband and wife and in particular the most recent life partner of the husband, who is now the registered owner of the D property, has filed an affidavit, as has the chartered accountant, Mr G.  Those documents will be considered by the husband's solicitor in preparing the written submissions as to the basis upon which the court can hear and determine an undefended section 79 application.

16. I have given a very strong indication to Mr Gillard that this matter should proceed to be heard and determined by the court upon all available evidence now before the court. 

17. I am satisfied that the husband and wife have had all opportunities to make, file and serve documents with the court.  Having said that, if, however, a further meaningful affidavit is filed by either party, or any other individual prior to next Friday, I will consider that information in determining any just and equitable settlement of property. 

18. What I would require of Mr Gillard is to file his summary of legal argument and factual matters with the court by no later than 4.00 p.m. on Wednesday, 17 March.  That document should immediately be emailed to the wife at the email address to which she has recently responded and also served upon her by post at her recorded post box address in Western Australia. 

19. Likewise I will make orders adjourning the matter to that day and those orders will be available in hard copy today and they should be served upon the wife as a matter of urgency.  That then affords every realistic opportunity for the wife to understand that finality is approaching in this matter and notwithstanding all of the earlier opportunities to which I have afforded her, this matter will be determined next Friday. 

20. Again, I have taken some little time with this ex tempore judgment, with the intent that it will be transcribed and served upon the parties as soon as practicable - though it is beyond the control of the court how quickly the document can be transcribed and then forwarded to the parties.  I will make all reasonable inquiries to have these ex tempore reasons transcribed as a matter of urgency.  It will be incumbent upon Mr Gillard to serve or provide the wife with his updated summary of argument and prove to the court, by service affidavit, that has occurred.

21. Again, I excuse the husband from personal attendance at court, though it may be that if the wife does appear at court and seeks to cross-examine the husband on any particular matter then the case may be further adjourned to give a fair and proper opportunity for the husband to attend in this court on an adjourned date. 

22. For all of those reasons I will now pronounce the following orders and the transcript may cease.

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: