Roberts and Inkster (No 2)

[2009] FamCA 1167

FAMILY COURT OF AUSTRALIA

ROBERTS & INKSTER (NO. 2) [2009] FamCA 1167

FAMILY LAW – PROPERTY – Defended property and financial hearing – No appearance by wife – Letter written by her to Court leaving conduct and outcome of case to the decision of the trial judge – Husband out of the country – Assets largely out of the country (if any) – Application for dismissal – Want of prosecution issues to be determined hereafter – Case management – Further adjourned hearing

Family Law Act 1975 (Cth)

APPLICANT: MS ROBERTS

RESPONDENT: MR INKSTER

FILE NUMBER: MLC 2924 of 2009

DATE DELIVERED: 25 NOVEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 25 NOVEMBER 2009

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 the telephone conference fixed for 1 December 2010 before Registrar Sikiotis be vacated.

2. THAT all extant applications, including the recently filed application in a case by the husband on 13 November 2009 be adjourned for further hearing before Young J at 10.00 a.m. on 18 January 2010.

3. THAT the wife make, file and serve any further affidavits or other applications on or before 11 January 2010 and, in the event that she does not comply with this order the Court may, on the adjourned hearing date, determine whether to proceed to finalise or dismiss all applications before the Court on an undefended basis.

4. THAT leave be granted to the husband’s solicitor this day to file his further affidavit of service.

5. THAT as soon as practicable the solicitor for the husband serve upon the wife, by registered post to her address at PO Box …, Western Australia, 6941 the following documents:

   a)a sealed copy of this Order;

   b)the extempore reasons for judgment delivered this day;

   c)the further affidavit of service granted leave to be filed this day;

   d)any other affidavit of the husband, or any witness (or third party) to be filed in these proceedings.

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

7. THAT the costs of the husband of and incidental to this day be reserved to the adjourned hearing date.

IT IS NOTED:

A.THAT this Order, and the extempore reasons for judgment when served upon the wife are intended to provide written notice of the further Court hearing date for the purposes of Family Law Rule 11.06(2).

B.THAT the wife’s letter written to the Court on 5 November 2009 be marked as exhibit “W1” and be retained upon the Court file.

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 returns to court in the circumstances where the wife has written directly to the court on 5 November 2009 and indicated that she will not hereafter appear in further proceedings.  Mr Gillard, solicitor, appears for the husband who is overseas.  The wife is currently living in Western Australia and she has advised that her new address for service of documents is a post office box.

2. The proceedings were initiated by the wife on 6 April 2009 at which time she filed an application seeking final property orders.  At that time she asked to be excused from further particularising her claim until the husband had filed documents and made discovery. 

3. She initially sought various corporate injunctions as against the husband and various alleged assets and businesses which she asserted he was either conducting or in control thereof.  By a response to that initiating application filed 25 June 2009 the husband sought dismissal of the various interim final applications which the wife had filed.

4. The matter came before the court on 8 April and by consent there were various restraining orders made against the husband, his servants, employees, or agents until further order, and they are detailed in paragraphs 3, 4, and 5 of those orders.

5. There exists substantial restraints upon the husband in his business and commercial activities or otherwise in respect of dealing with assets or funds and at some time in the near future those orders will have to be revisited.  I will not interfere with the force and impact of those orders today, but they must be the focus of attention of the wife if they are to be maintained and of the husband if they are all to be discharged.

6. Subsequently, the matter came before me on 20 July 2009 and Registrar Sikiotis was appointed to manage and coordinate the files and to list the matter for a financial conciliation conference before her at an appropriate date.  Subsequently, the wife filed on 8 September 2009 a document that is entitled "Application for Consent Orders".  That document is somewhat misconceived as there most clearly are no consent orders as between husband and wife.  That, likewise, is a document that will have to be dealt with appropriately at any further adjourned hearing.

7. I delivered an ex tempore judgment on 20 July 2009 which has been made available to both parties and is retained upon the court file. I highlighted that listing was the second day of a less adversarial hearing and the matter was in no way prepared or ready for trial. I set out in paragraph 11 the further procedural steps and information gathering that the wife had to undertake, and in particular to itemise the financial orders she sought pursuant to section 79 of the Act and to detail the financial information that should be considered by the court. I rejected any transfer of proceedings to the Western Australian Registry of the Family Court.

8. Paragraph 13 makes interesting reading and it states that:

   “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 interests 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 cases”.

9. In paragraph 14 I continued and expressed a very real concern about how the matter would ever be fairly and properly prepared, about how evidence would be ascertained, and how the matter will be in place for determination.  I repeated that was the financial responsibility of the parties.

10. Again, in paragraph 17 I highlighted the particular aspects of this case and in particular what orders could be made against what assets and if and when appropriate and how they would be enforced by an Australian court when the source of the business assets (as alleged) are overseas or other income payments or royalties are perhaps also overseas.

11. All of those matters in that ex tempore judgment were said to focus the attention of the parties, and particularly the wife, upon the issues that she must address.  Otherwise, the matter was listed before me today primarily for case management and to ensure that it is being prepared for or otherwise is ready for trial.

12. I have now an application in a case filed on behalf of the husband before the court.  In that document he seeks that the primary application of the wife for settlement of property be dismissed.  He further seeks that he be excused from any level of obligation to prepare or present matters to the court pursuant to the directions of Registrar Sikiotis made at a telephone mention of this matter on Thursday, 17 September.

13. A further issue in the case remains that the wife has lodged a caveat against the title to a property at D in Victoria, that property being registered in the name of a third party, a lady with whom the husband previously had lived in a purported de facto relationship. 

14. An order is sought pursuant to section 106A of the Act that a Registrar be appointed to sign the discharge of caveat document in the name of the wife and upon her refusal to sign that document. I do not intend to hear and determine any issues of and related to the D property or that caveat this day. They are matters that will need to be dealt with in the fullness of time and subject to the evidence before the court and how the wife intends to prosecute her claim under section 79 of the Family Law Act.

15. In support of that application in a case of the husband an affidavit was filed 13 November 2009 by his solicitor, Mr Gillard. That document purports to evidence the matters placed in issue by the husband and the documents filed or to be filed by him before the court.  It exhibits draft affidavit, financial statement, and notice to admit facts that are or will be filed before the court.

16. This morning Mr Gillard has handed to the court a further affidavit which he has sworn and which he seeks leave to file.  Leave was granted.  That document highlighted the various efforts made to effect service upon the wife and to fully inform her of the court process.  It identified efforts to personally serve and otherwise to serve by email and post and these are recorded in paragraphs 4, 5, and 6 of that affidavit.

17. I pause to identify the letter written by the wife to the court on 5 November 2009.  That letter I will have marked as exhibit “W1” in these proceedings and it must be retained upon the court file.

18. The court caused a copy of that letter to be forwarded to the solicitor for the husband and that has largely brought about the further application in a case filed 13 November 2009 and supporting material. 

19. In her letter the wife acknowledges the time provided by the court to her to prepare her case but states that she was financially unable to accomplish that task.  She highlighted her concern that the husband further hindered her case by not producing documents.  She states that she is unable to attend the conference set in Melbourne on December 1 before Registrar Sikiotis or she cannot attend a telephone conference as she does not have a phone line.  She requests any decision to be made in her absence to be notified to her by mail at the Post Office Box in Western Australia.  She concludes the letter by stating:

    “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”.

20. The overview of this matter is therefore the wife seemingly is taking no further steps to investigate or prosecute her claim before the court.  The husband is overseas and he alleges still out of employment and impecunious, or close thereto. 

21. Such assets as are said to be available to the court within the framework of section 79 orders are either out of the country or claimed by another party who is yet to have formal service upon them and to appear in these proceedings. That in itself will involve substantial cost and possible litigation risks to the wife. I make no other claim or observation of those matters at this time.

22. Insofar as the recently filed application in a case is concerned the husband seeks dismissal of the wife's claims.  On the information before me that perhaps is slightly inopportune and does not afford the wife the formal opportunity to withdraw or otherwise to proceed with all claims before the court.

23. The court of course has a power to dismiss proceedings for want of prosecution.  That is provided for in Family Law Rule 11.06.  In summary, if a party has not taken a step in a case for one year then it may be dismissed.  Prior to dismissal the court must not make an order unless 14 days' notice has been given in writing to the parties.  There may then be financial consequences by way of costs arising from the dismissal of an application for want of prosecution. 

24. Otherwise, there are very specific requirements in the Family Law Rules and the main purpose of the Rules and the responsibility of parties in achieving that main purpose are clearly recorded in Rule 1.08.  There is a responsibility upon both parties to promote and achieve a conclusion to litigation.  There is a specific obligation upon the parties to ensure readiness for court events, to comply with time limits, and to assist in the just, timely, and cost effective disposal of cases.

25. The reality of this case is that there are no ongoing investigations as to the pool of assets and liabilities, there is a significant problem about the fact that assets are out of the jurisdiction or otherwise neither party, certainly not the wife, has the time and money to resource any such investigations.

26. As I have previously explained to the wife, the court does not investigate and locate evidence;  that is for the parties and their legal advisors.  The court is a decision-maker.

27. What I propose to do in this matter is to adjourn all extant applications, including the husband's application for a dismissal of the wife's claim before the court to 18 January 2010 at 10.00 a.m.  Prior to that date Mr Gillard on behalf of the husband will need to file the husband's completed and updated documents together with any affidavit from a third party said to be affected by the wife's claim, that is specifically the registered owner of the property at D.

28. I request the wife to give immediate and detailed consideration to her claim before the court and whether she is in any position to further investigate and obtain evidence and place matters before the court.  There is otherwise no particular asset in Australia readily available within the name of the husband and/or wife.  I will not require the husband to return to the jurisdiction on that further hearing date subject to he having filed updated affidavit material and responding to all issues that the wife has now before the court.

29. On that adjourned hearing date the continuation of the many and various injunctive orders against the husband will need to be considered and addressed and the wife must understand that all of those orders may be discharged unless there is good and proper reason for their interim continuation thereafter.  Again, these are matters that I highlight to the wife must be her concern and the subject of proper evidence or legal submissions.

30. I will vacate the telephone mention before Registrar Sikiotis on 1 December. I reluctantly accept that the wife cannot avail herself of a telephone or the time to attend to such an important conference. I will require the wife to make, file, and serve any other document with the court of or relevant to her section 79 application by 11 January 2010. She must serve documents upon Mr Gillard at his new legal firm, Lander and Rogers, Melbourne.

31. I will have these reasons for judgment transcribed, placed upon the court file, and made available to both parties. 

32. I emphasise to the wife that time and further involvement are now a matter of urgency for her.  It is not in the interests of either party or of the court to simply have this matter remain in the court lists without issues being actively prepared or addressed.  I well understand that the wife has, by her letter, left the decision to the court, but that is simply not to accept her responsibility as an applicant.  The choice is hers;  she must prosecute the case or stand the very real outcome that all proceedings will be dismissed and all current orders discharged.

33. Ultimately, that choice is hers and by these orders I will effectively provide to her a further period in excess of one month to resolve the approach that she will take to the matters raised by way of explanation for her in these ex tempore reasons for judgment. 

34. I will require the husband's solicitor to serve further documents upon her as are now filed or will be filed.  Service to that post office box in Western Australia that she has now provided to the court and which I have identified in these reasons for judgment will be good and proper service.

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

………………………………………………………..
Associate: