Roberts and Inkster (No 3)

[2010] FamCA 203

FAMILY COURT OF AUSTRALIA

ROBERTS & INKSTER (NO. 3) [2010] FamCA 203

FAMILY LAW – PROPERTY – s 79 proceedings – Unopposed property matter – Wife elected not to appear but rely upon past affidavit material filed – No assets or financial resources within Australia – Businesses in liquidation – Husband living overseas – No known assets – Consideration of contribution and s 75(2) factors – All applications dismissed – No order as to costs

APPLICANT: MS ROBERTS

RESPONDENT: MR INKSTER

FILE NUMBER: MLC 2924 of 2009

DATE DELIVERED: 19 MARCH 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 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 both interim and final including the wife’s initiating application filed 6 April 2009 and the husband’s response filed 25 June 09 be dismissed.

2. THAT all previous orders of the Court including the injunctive orders made by consent on 8 April 2009 be discharged.

3. THAT there be no order as to costs and any previous order for reserved costs be discharged.

4. THAT all documents subpoenaed to the Court be forthwith returned by the Subpeonas Clerk Family Court of Australia Melbourne Registry to the person or organisation who produced such documents pursuant to subpoena.

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

6. THAT within 21 days of the date hereof the solicitor for the husband serve upon the wife by prepaid post a sealed copy of this order and the extempore reasons for judgment.

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 file of Roberts & Inkster is again before me in my defended list of cases.  Mr Gillard, solicitor, appears for the husband who is not at court and whose attendance had been excused in the particular circumstances of this case.  The wife previously has had a level of legal representation, but of recent times has appeared for herself or otherwise has failed to appear at the more recent hearings of this matter.  I have had my court officer call the wife out of court this day and there is no appearance by her or on her behalf. 

2. I have received an affidavit of service, document 47 on the court file, from Mr Gillard as to recent service of the documents that I ordered to be served upon her, and particularly my orders of 11 March 2010 and recent correspondence from the husband's solicitors to her.  Additionally I have given leave to the filing of a further affidavit of service by an employee of the husband's solicitors and that further supports service of documents upon the wife at her Western Australian post office box address, which is now recorded as her address for service in these proceedings.

3. As an overview of service there have been numerous mentions of this matter before me that I will more substantially detail hereafter, upon which service has been required of the wife and where I have been satisfied as to service.  In particular, I identify a response by email made by the wife to documents provided to her, which is incorporated in my extempore reasons for judgment on the most recent occasion when this matter was last before me.  With that background, I turn to the initiating application which was filed by the wife on 6 April 2009.

4. That document was drawn by her then solicitors, and orders were sought for final property orders pursuant to section 79 of the Family Law Act 1975 and for many and varied interim orders, including injunctions, interim spousal and adult child maintenance orders, security for costs order, and orders pursuant to section 106B of the Act.  All of those orders were supported by a substantial affidavit, with voluminous exhibits thereto filed by the wife on 6 April 2009 - that document being number 2 in the court index.  I have read and evaluated that affidavit.  The background to the parties and their marriage is recorded in paragraphs 3-10 (inclusive) of that affidavit, and I will not recite all of those facts in detail. 

5. The wife was born in March 1961 and is an Australian resident.  Her husband was born in December 1957 and is an Australian citizen and was resident in Australia.  The parties met in Sydney in 1983, relocated to the United States where the only child of the marriage, a daughter, was born in 1989.   The parties married in the United States of America in 1991 and they each worked in various forms of employment as identified in the affidavits.  The husband relocated to Australia in or about 1993.  There was a sale of the then United States home and a division of some of the assets thereof.

6. The wife acknowledges receipt of $60,000 which was used for the purchase of an apartment in America, and significantly the husband then provided quite substantial ongoing financial support for the wife and his daughter, who had special needs.  Ultimately, that property in America was sold by the wife, and paragraph 8 of that initiating affidavit, as elaborated upon in paragraph 10 thereof, support all of then financial and living circumstances. 

7. Separation is an issue on the documents. The husband would identify separation occurring in or about 1993 or thereafter.   The wife seemingly has identified the separation date as being prior to 2005 or in 2005 or in 2007.  Whatever the outcome the parties are now divorced, pursuant to a decree pronounced by Registrar Harold in the Federal Magistrates Court, Melbourne Registry, on 16 July 2009.  That divorce was predicated upon the appropriate period of separation as found and I have no difficulty in accepting both the prior separation for the purposes of the divorce and that these parties are now divorced.

8. The wife's affidavit identifies in considerable detail the corporate structure and entities in which the husband operated, or established interests in Australia, and primarily they are within the entities identified as L Pty Ltd and T Franchising Pty Ltd, and related companies, entities, and trusts.   In that regard, I have carefully read paragraph 12 of the wife's affidavit and her subsequent affidavits.  The wife's material, which I have read for the purposes of this ex tempore and unopposed judgment, thereafter include her financial statement, filed 6 April 2009 and an updated financial statement of 8 September 2009, her affidavit of 8 September of that year and subsequent affidavits of 5 January 2010, 11 January 2010, 18 February 2010 and 26 February 2010.  An updated financial statement was filed by her on 11 March 2010.

9. There are other documents before the court, including a somewhat curious application for consent orders, document 22 in the court index, which I have read but which I have little understanding of, and there is also a Notice to Admit Facts, which was filed in the Federal Magistrates Court on 11 September 2009 which has now been incorporated within this file.  The most recent financial statement of the wife does paint a very gloomy financial position for her and her adult daughter.    They are now living in Western Australia.  Her address for service is Post Office Box …, Western Australia.

10. Her primary income is from the Newstart allowance and rent assistance.  She previously disclosed some income received by her daughter, now 20 years of age.  Most of her income is directed to rental payment and otherwise her statement is bearer of assets.  She does have liabilities, which I have read and understood, to various credit cards, past lawyers, and a car loan account from the United States, presumably which she has either discontinued in payment or defaulted upon.  That document does not otherwise identify further or other assets of the husband or of the associated businesses.

11. I have taken the care to reflect on earlier financial statements filed by her, particularly 8 September 2009, where she did identify other liabilities, or loans, but similarly, that is a very brief and unhelpful document, although it may be accurate in that the wife has now minimal income, save for a pension and no assets.  It does not helpfully identify any other assets of the husband.  That is the background of the financial and factual documents put before the court by the wife. I return to her application for final orders where, somewhat unhelpfully, she seeks in the general form a settlement of property with her husband, inclusive of spousal maintenance such an order as the court considers just and equitable.

12. There are various other interim orders sought in that document, but nowhere does the wife more helpfully specify the particular assets or value of that which the husband has, or is alleged to control or otherwise has been divested to family and friends. 

13. I turn now to the husband's documents before the court.  His response to the wife's application was filed 25 June 2009 and he seeks for the wife's application to be dismissed, with his costs paid on an indemnity basis.  Likewise, he seeks the dismissal of all interim applications sought by the wife.  On the day of filing that application he filed a financial statement, document 11 in the court index, which recorded his weekly income then as being $1,250 per week and that he then owned property to a total value of approximately $140,000.

14. That income was then a managing consultancy paid through L Business to which I have earlier referred.  The property predominantly, as to $100,000, was a debt owed to him by that business.  His other major asset is a Harley-Davidson motor bike, said to be valued at $14,000 and which Mr Gillard has identified as being located in the United States of America.  His liabilities were recorded, his various credit card debts.  At the heart of this case are the answers of the husband in paragraph 59 of that document, where he records the ownership of the D property in the name of Ms J, pursuant to a financial agreement, and thus where he says his value therein is nil, and the transfer of his power of appointor in the Inkster trust - that is related to the L business - which he had valued at $350,000.

15. There is an affidavit filed 25 January 2009, document 12 in the court index, from the husband's solicitor, Mr Gillard.  That document was filed for the purposes of exhibiting thereto earlier draft affidavits of the husband that were purported to have been filed in this court, but which had not been located, and subsequently the matters and facts in those affidavits have been reprepared and filed pursuant to the husband's subsequent affidavit filed 8 February 2010, to which I will hereafter refer.  It is therefore unnecessary for me to rely upon those draft affidavits of the husband as annexed to Mr Gillard's affidavit of that date.

16. The substantial affidavit of the husband is therefore filed 8 February 2010, document 41 in the court index.  I have read and evaluated the contents of that affidavit.  It does respond to the earlier affidavit of the wife and is in support of the husband's request for all orders sought by her to be dismissed.  It provides a background of the court events between April and July of last year and orders which I had earlier made, to which I will shortly return, and in respect of which the request is now before the court for all prior injunctions to be discharged.  In that affidavit, the husband identifies the many and various court orders and directions that were made, either by a Registrar of this court or by myself, and the lack of compliance, or more particularly, the very blunt refusal to follow through issues that has occurred in this case.

17. I have in that regard read paragraphs 9-18 inclusive and I am comfortable in acknowledging a level of frustration of the husband and a level of non-compliance by or on behalf of the wife as to her ability to have investigated, or to follow up, financial issues.  The husband sets out in paragraph 19-28 (inclusive) his evidence in relation to D and the dealing with that property to the benefit of his most recent life partner, Ms J.  She has also filed an affidavit in the proceedings.  I have read each of those documents and on that basis, there certainly is both an explanation and a case for that property to be now registered in the name of Ms J.

18. I have no evidence whatsoever of any right, interest, or entitlement that the husband has, or seeks to have therein, and certainly no understanding that Ms J would in any way hold any part of that property on trust for the husband or to benefit him at any future date.  The L Business and the particular issues in relation to the dealings with the mother of the husband are identified in paragraphs 29-34 of that affidavit, which likewise I have read.  The issues there are not the subject of the proper challenge by the wife.  I have no satisfactory or proper material to either challenge, or more particularly, to not accept the evidence of the husband as to the transactions between him and his mother as identified in that affidavit and confirmed by the affidavit of the accountant Mr G, which I accept and rely upon.

19. The other commercial asset that has occupied time and allegations relates to the entity known as T Franchise.   The evidence of that is, again from the husband, set forth in the material.  It is now said to be insolvent and in liquidation, and the evidence of the husband is there is no surplus benefit available, and various annexures to that affidavit are filed to support that outcome. The balance of the husband's affidavit touches upon these proceedings and his request for the dismissal of the wife's application and the lack of follow up of the wife, or on her behalf, for orders of directions of the court or to facilitate the matter being properly progressed to trial.

20. The husband asserts the various accusations of the wife of a financial nature have not been supported by evidence nor, he would maintain, could they ever be the subject of acceptable and admissible evidence before the court.  In summary, the husband's evidence is that his financial position was all but extinguished because of the recent global financial events within the world and its affect on T Group of Companies and associated entities.  That is encapsulated within paragraph 50 of that affidavit, and that is a primary matter before the court which I have, on balance, accepted.

21. The husband filed a financial statement on 8 February 2010, which I have read.  That identifies various personalised liabilities that could arise from the liquidation of T Group but does not otherwise identify any remaining assets of the husband, save that which was already known to the court.  The affidavit of the accountant, Mr G, was filed 9 February of this year, and that sets out his experience and involvement for L Business and T Group.  I have read that affidavit and accept the accounting and financial evidence deposed to therein, and likewise, the accompanying documents I have read, and there is no good reason for me not to accept the content and accuracy of those documents.

22. Over the last six months this matter has been before the court on a number of occasions, and I will hereafter refer to and incorporate my various ex tempore judgments within my reasons for the orders to be pronounced hereafter.   Mr Gillard has prepared a list of documents relied upon by the husband, and that is filed 17 March 2010. I have read and evaluated the evidence in those documents. It also provides a summary of the basis of contribution and financial circumstances of the husband and identifies the orders now sought, which is the dismissal of all prior injunctive orders of the court, the dismissal of the wife's application, and the finality of all proceedings before the court, with no orders as to costs made for either party, and for this matter to be wholly concluded and out of the court hearing process.

23. I will return to those orders shortly.  By way of overview, the matter was first before me on 7 April 2009 when this case was taken into my docket.  On that occasion, and on an interim basis and by consent, I pronounced various restraining orders identified in paragraphs 2, 3, 4 and 5 of that order.   They have restrained the husband, his agents, and employees from acting in any matter contrary to the welfare and financial interests of the parties or from disposing of assets, encumbering assets, or generally diminishing any property before the court, save in the ordinary course of day-to-day living and travel and accommodation.  An extract of the proceedings of that day is on the court file, and I have re-read that which then occurred. 

24. The next court event was the pronouncement of the dissolution of marriage by Registrar Harold.  The matter then came before me on 20 July 2009 when I appointed Registrar Sikiotis to manage the file and to require her to conduct telephone conferences to ascertain the state of preparedness of the proceedings and to appoint a conciliation date and otherwise for the return of subpoena and inspection of documents.  I delivered ex tempore reasons for judgment in support of those orders, and I have read, and I incorporate, those reasons within my judgment of this date and in respect of the orders that I will shortly pronounce.

25. The matter was thereafter managed by Registrar Sikiotis in the period between that July date and when the matter next came before me on 25 November of last year.  I then vacated the conference date that had been fixed by the Registrar and directed further procedural orders to bring this matter to hearing.  Mr Gillard appeared for the husband on that occasion, and the wife simply did not appear.  I required all documents arising out of that hearing to be served upon the wife, including my ex tempore reasons for judgment, and I am satisfied as to such service.

26. In particular, and again I have highlighted this matter in prior extempore judgments, the wife wrote to the court identifying her financial inability to prepare her case and allege that the husband was further hindering her by not producing documents.  She concluded that letter with the following:

    "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."

27. By my orders of 25 November 2009, I provided a further opportunity to the wife and extended the hearing to 18 January 2010.  Again, on that occasion Mr Gillard appeared for the husband, and the wife did not appear.  I again required service on the wife and extended a further opportunity for her to appear.  I determined not to dismiss proceedings on the basis of any want of prosecution.  Mr Gillard, on that time, sought to argue for the proceedings to be dismissed on the basis of summary orders pursuant to Family Law Rule 10.12.  I delivered extempore reasons for judgment, which again I am satisfied were properly served upon the wife.

28. I emphasised in the clearest of terms that the wife should re-engage herself in this case, involve herself, if she sought any orders, and attend at court or organise a further mention by someone on her behalf to be at court, or otherwise to seek some form of hearing of the matter that was appropriate to her circumstances.  Thereafter, and with much reluctance, I adjourned the matter to 11 March 2010, when again Mr Gillard appeared for the husband;  the wife again did not appear and thereby showed no interest whatsoever in the proceedings.  I again delivered an extempore judgment and my reasons were appropriately served upon her as required.

1. In paragraphs 15-21, inclusive thereof, I have taken care to emphasise to the wife that the matter must be concluded and will now, on the next occasion, that is, this day, be concluded. I excused the husband from personal attendance this day. I identified in those reasons that I would, on an undefended basis, consider orders that are just and equitable this day on the basis of a section 79 hearing and could make final orders in the absence of further material or the wife attending at court. From the further documents filed today, I am satisfied that those orders were served upon the wife.

2. It is therefore, with that factual and procedural background and all of the various affidavits by and on behalf of the husband and wife, that I come to conclude a just and equitable settlement of property. The court requires by section 79(2) of the Family Law Act that orders be made that are just and equitable. Section 79(4) of the Act identifies the considerations that must be taken into account when concluding a settlement of property. I have carefully read and evaluated that section on the basis of the affidavits filed. I have particular regard to the contributions, both financial and otherwise, which have been made by each of the husband and wife to the acquisition, conservation, and improvement of matrimonial property.

3. I have regard to the role of homemaker and parent as required by subsection (c) thereof. I do understand the earning capacity of the parties and accept the wife has no real earning capacity, notwithstanding the written submissions of Mr Gillard that she can, and should have a capacity to earn a strong income as a designer. I would most certainly not describe her earning ability as excellent. I otherwise, within the parameters of section 79(4), have had regard to the relevant section 75(2) factors and other matters of relevance. Separately I have evaluated the various factors identified in section 75(2) that are of importance to this matter and they are subparagraphs (a), (b), (f), (g), (k), (o).

4. Within the factual matrix of this case, I have considered those matters insofar as I can on the available evidence.  The first task of the court in assessing a proper division of matrimonial property is first to identify the pool of assets.  That I undertook in reading the affidavits, and it is difficult to wholly identify current assets.  The husband has his Harley-Davidson and a debt of $100,000 owing to him by a business that is purportedly in liquidation or somewhat insolvent and not making moneys sufficient to pay the debt.  I must balance the potential receipt of that money against the work and contribution of the husband to the L Business.

5. Many questions remain unanswered of that business and its product, which is seemingly sold in businesses around Australia and the world.  I simply do not have full and sufficient evidence, and every opportunity has been given to both parties to have more information before the court.  Otherwise, there are no other known asset of the husband.  He now lives outside of Australia and travels freely between the United States of America and/or Italy and/or Europe, but Mr Gillard has explained his travel by the largesse of his family and I have no evidence to the contrary and in the foreseeable future would not likely ever have received such evidence.

6. The husband is firm and direct in his assertion as to his limited assets, his other liabilities, and his impaired earning capacity.  With some scepticism and a level of reluctance, the reality is that there are no matters proved to the contrary.  I accept the wife's circumstances are financially desperate.  She has no assets and no income, save Government support.  She has chosen to live in Western Australia and distance herself from this hearing.  She has no reasonable evidence or submission before the court.  Most recently she has been engaged in searching the internet and finding extracts of and related to the husband's alleged business or sales or travel and the like.

7. All of those matters may raise questions, but they are not fundamentally appropriate evidence before the court and upon which I could, or would, rely.  In terms of the identification of a net pool of assets available for distribution, I therefore have, effectively, no asset within this jurisdiction, and on that basis, the first step of any court is to determine what net assets can be divided between the parties and there arises an almost insurmountable issue.  The term of the marriage is another issue of some difficulty, given that the husband would allege a separation in the mid-1990s or thereabouts.  If so, assets in Australia, such as formerly existed, were created thereafter.  Given that there are no assets, I do not have a need to further explore that complex factual scenario of and related to separation and post-separation contribution.

8. The property at D, on the material before me, was reasonably transferred to the life partner of the husband.  I have read her affidavit.  I am accepting of that outcome and all of the particular circumstances of the acquisition of that property and Ms J’s contribution thereto. 

9. Whilst there is, therefore, a level of contribution that the wife has made generally under section 79(4) of the Act, and whilst clearly there are section 75(2) factors that would have been of importance, they are negated by any available net asset and by the opposing contributions made by or on behalf of the husband and perhaps his current financial needs and circumstances; though, I repeat, I remain both sceptical and concerned as to his lifestyle, travel, ability to earn income, and general salesmanship.

10. It is important on the facts of this case that I pause before any pronouncement of final orders and carefully evaluate, as an overview the justice and equity of my assessment of the facts and evidence.  The wife is in a precarious financial situation and I know of no assets or financial resources which she owns or controls.  She has genuine financial needs and hardship.  That said I have no evidence of assets or financial resources within this jurisdiction, or indeed otherwise.  The husband’s contributions, both financial and otherwise towards what assets were formerly held was likely considerable but again that matter needs no further conclusion.  Ultimately the matter is before me on an unopposed basis and I have no further evidence or explanation from the wife save for all of the matters which I have carefully considered.

11. I will make no order for costs for either party and will dismiss any reserved costs orders.  It is appropriate that I discharge all current court orders, and in particular, injunctions made on a consent interim basis as against the husband.  I will require these extempore reasons for judgment when available, and the orders of this day, to be served by Mr Gillard upon the wife within 21 days at her Western Australian post office box address for service.

12. There are various subpoenas that have been subpoenaed to this court, and I intend forthwith to direct the subpoenas clerk, Melbourne Registry, to forthwith return all such subpoenas to the person or organisation who produced them to the court.  I will have these ex tempore reasons for judgment transcribed, placed upon the court file, and made available to both parties.

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

………………………………………………………..
Associate: