Robinson and Shelter

[2010] FamCA 158

FAMILY COURT OF AUSTRALIA

ROBINSON & SHELTER [2010] FamCA 158

FAMILY LAW – PROPERTY PROCEEDINGS – s 79 defended hearing to be listed in near future – Further steps to be undertaken by wife – Undefended hearing – Overseas evidence by electronic communication – Content of affidavits – Update of financial balance sheet – Overseas assets – Procedural orders

Family Law Act 1975 (Cth)

APPLICANT: MS ROBINSON

RESPONDENT: MR SHELTER

FILE NUMBER: MLF 2725 of 2006

DATE DELIVERED: 24 FEBRUARY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 24 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS DELLIDIS

SOLICITOR FOR THE APPLICANT: MARK SHENKEN

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT the time limits imposed upon the wife in paragraph 8 of the earlier Orders of the Court dated 21 October 2009 be extended until 4.00 p.m. Thursday 25 February 2010.

2. THAT on or before Tuesday 2 March 2010 the solicitors for the wife make, file and serve upon the husband, at his last known address for service, and upon the solicitors formerly engaged in these proceedings by the husband sworn copies of all documents filed with this Court, by or on behalf of the wife, and on or after 17 February 2010 together with a letter (from the solicitor on letterhead) confirming the commencement date of the trial to be 9 March 2010 at 10.00 a.m. before Young J.

3. THAT in respect of the affidavits filed by the wife by herself and from her witnesses (her mother, aunt and daughter) the wife’s solicitors are to provide to the Court amended copies thereof with comments, statements or matters upon which they do not intend to rely upon in the trial highlighted in red ink.

4. THAT on or before 4.00 p.m. Thursday 4 March 2010 the wife provide to the Court an updated and accurate statement of assets and liabilities of the parties as will be proved in the evidence to be given by her, or on her behalf or otherwise from documents previously filed with the Court.

5. THAT leave be granted to the wife to make, file and serve an application for evidence to be adduced by electronic communication in the final hearing.

6. THAT evidence by electronic communication (telephone) be given by the witnesses Ms M, Ms A and Ms K, subject to any objections thereto from the husband and upon such evidence being given in Court hours and in a manner hereafter to be determined by the Court and with the assistance of a Russian speaking interpreter.

7. THAT the Registrar, Family Court, Melbourne Registry book and obtain the services of an experienced Russian speaking court interpreter for the three (3) days of the defended hearing commencing 9 March 2010 at 10.00 a.m.

8. THAT the wife’s solicitors have available to the Court the actual updated invested cash sum, including interest, held pursuant to the sale of the properties in Queensland.

9. THAT the solicitors for the wife are to engage in discussion with and obtain an update of the circumstances surrounding payment of the past solicitor for the wife, and particularly any balance of the monies paid pursuant to paragraph 2(i) of the Orders of 21 October 2009.

10. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties or their solicitors and the wife’s solicitors are to forthwith forward by post a copy of such reasons for judgment to the husband and his former solicitors.

11. THAT the wife and her solicitors, on or before 4.00 p.m. Thursday 4 March 2010 file and serve with the Court and provide by e-mail to my legal associate:

    (a)     a list of the affidavits upon which they intend to rely;

    (b)     an updated statement of the specific final orders sought;

    (c)     a brief summary of legal argument;

    (d)     a letter in compliance with Rule 19.04 of the Family Law Rules.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2725 of 2006

MS ROBINSON

Applicant

And

MR SHELTER

Respondent

REASONS FOR JUDGMENT

1. This matter is listed as a defended hearing before me commencing Tuesday, 9 March 2010, and for three days.  Ms Dellidis of counsel appears for the wife this day, though she has advised the court that she will not be counsel on the trial.  The wife is present in court and her solicitor, Mr Shenken, is not in court.  The husband was called out of court and did not appear.  These case management and interim proceedings have therefore been conducted in his absence.  I again made inquiries of the wife’s counsel as to any updated notice of address for service that they may have for the husband.  To the best of their knowledge and belief his address remains as recorded on my orders of 21 October 2009. 

2. In those orders I made various case management orders to prepare the defended hearing for the 9 March commencement date.  Specifically in respect of the husband, there were orders made in paragraphs 6, 7, 9, 10, and 11 thereof.  The husband has filed no further documents with the court.  It does not appear that he has made, at least to the knowledge of the wife and her solicitors, any application for a visa to attend in Australia for the hearing.  Certainly discovery and production of documents has not occurred and this court has no updated knowledge or information as to the assets and liabilities of the husband or his dealings with any other alleged joint property.

3. As to the wife, she has personally been busy and proactive in her filing of documents before the court.  On 22 February, that is only two days ago, a further amended initiating application was filed.  I have read that document and communicated to her counsel this day that the orders therein are somewhat unhelpful.  As to order 3 and the production of further history of documents and acquisition of properties, it would be unlikely that any such order would be made on a final hearing.  Of course the order must ultimately conclude a just and equitable settlement of property, but whether the wife receives 55 per cent of the matrimonial property pool, as she asks for in paragraph 2 thereof, is wholly uncertain for many reasons including because of what that net pool of assets may contain.  I read that order in the context of the summary of assets and liabilities which the wife has attached to her amended financial statement filed 17 February this year, and there very clearly are items of great uncertainty as to either valuation, identity, location, or currency, and that applies as much to liabilities as it does to assets.

4. In my discussions with counsel for the wife this day I have invited a further document to be considered by solicitor and counsel appearing, and be filed in a manner seeking orders that are more understandable and relevant to the basis of the current evidence and disclosures.  As to order 4 thereof, it may or may not be appropriate for the husband to be liable for all of those expenses, but that can be a matter for trial.  As part of that further amended application the wife, and I am advised that she drew the document herself notwithstanding it was filed with her current solicitor’s name and address for service on the document, but that said I am not being unduly critical of anyone in the preparation of documents as this matter has many hurdles to overcome in obtaining and distilling information and evidence.

5. The interim orders, however, relate to an authority to the ANZ Bank and a determining of interest to be paid on monies, and they are not orders likely to be made at a defended hearing as to case management and interim proceedings.  It may be that the wife would have her solicitors issue a subpoena to ascertain those matters.  Otherwise it may be that the argument of an applicable interest payable on any judgment sum or other quantum can be a matter for argument in trial.  I simply record that, on the basis of the actual information before the court and that which may remain as admissible evidence and which may form part of the pool of assets, then urgent and immediate consideration should be given to drafting what is the final order that the wife seeks, particularly in regard to the invested moneys within Australia. 

6. In addition to that application, the wife has filed a very substantial affidavit by herself of 17 February with voluminous exhibits thereto.  Otherwise I have already identified the financial statement filed 17 February by the wife and there are further affidavits from her daughter, her aunt, and her mother, all filed in the period 17 February-22 February of this year.  I am advised that a further affidavit will be filed this day, and that is from a person resident in the United States of America who intends to give evidence as to an alleged forgery by the husband of her name and notary seal, and to be filed for the purpose of casting significant doubt upon an alleged debt which the husband provided to the court some years ago in an earlier document filed on his behalf.  I have not yet sighted that affidavit.

7. One of the matters of overwhelming concern is that the wife is now approximately one month out of time for filing documents.  The husband is entitled to have all documents served on him.  The court has only his last known address for service in Russia and his former Melbourne solicitors.  All documents should be re-served by post as a matter of urgency upon both the husband and his former solicitor.  I do not have any expectation that those solicitors would appear in court, but it is only by way of completeness that they may have all documents in this matter if the husband were to contact them, as he has in the past.

8. I have taken the opportunity with counsel briefed for the wife this day of highlighting the contents of the affidavits, in particular her primary affidavit and that of her mother as to issues of admissible material, hearsay and opinion, and past valuations.  There may be many other matters of objection or concern.  One aspect of this case that is clear is that over the last three or four years the wife has little financial knowledge of the dealings of the husband, of what became of certain assets, or why certain debts are alleged.  Clearly there is an obligation upon the husband should he seek to contest the availability of a property settlement in Australia or seek part of the invested funds from the sale of the Queensland properties to be present, and to present argument and evidence to the court.  That is his choice, and currently I am satisfied that he well and truly should know of the defended hearing date fixed for 9 March of this year.

9. The court, however, and perhaps more so in an undefended property hearing, must carefully analyse the evidence, ascertain the pool of assets and liabilities, and give reasons for inclusion or exclusion of assets or liabilities there from.  There are many assets that the wife has identified in her current statement of assets and liabilities, under the heading of The Husband’s Other Assets and Liabilities, in D thereof that raise concern as to relevance, currency, and accuracy.  I have again read the material recently filed by the wife and earlier before the court.  There certainly remains some level of contest as to the real property in Russia, its existence or sale price, or moneys to be included in any pool of asset there from.  Otherwise those questions remain as to moneys allegedly retained by the husband and very significant questions as to the ownership, value, and relevance of and what the wife can prove as to the Mercedes Benz motor vehicle, jewellery, paintings, sale of shares, valuation of the two vessels, and other shareholdings. 

10. As an overview, the wife would have the court understand there is an asset pool of $5.4 million or thereabouts.  The wife’s 55 per cent of that asset pool, which presumably includes her modest assets in Russia, the whole of the proceeds of the Queensland properties in Australia, and a payment of other moneys or assets from sources unknown and largely unidentified.  It is in that context that a re-assessment of the evidence and a measure of common sense need urgently be brought by her solicitors and counsel engaged to her claim.  I will give leave to the wife to file that further affidavit from the American-based witness.  I do require service of all documents as earlier indicated.  I do require immediate consideration to be given to what are the proven assets and liabilities of the parties and for an updated statement of assets and liabilities to be filed forthwith. 

11. As to the affidavit of the witnesses, and in particular the wife’s mother, there does need to be some legal vetting of what is admissible within the document and what is to be relied upon.  What I expect from counsel appearing is to have an amended form of that document (preferably by red underline in the usual form) as to what parts will not be relied upon.  This is a matter to be taken up on the first day of the hearing, but clearly it is only those matters that are relevant and admissible in a matter which may be unopposed that can and should be before the court in evidence less they lead to further issues of contest and grounds for appeal.  The same can be said of material in the wife’s affidavit, and it is in that context that I invite some legal input into the preparation of the appropriate evidence and pool of assets, net of liabilities, that are proven and proper.

12. No doubt to minimise legal expense it does seem as if the wife has had some carte blanche in the preparation of documents.  She has made significant inquiries and, as I understand from her counsel, has largely drawn the documents herself from her own inquiries.  If so, they more properly should have been filed by her under her own name rather than highlighting the solicitor, but I do not make that as a strong criticism as the wife clearly has a very high level of industry and ability to work and search for documents and has the benefit of language and cultural understanding of the husband.  Nevertheless, there is a real obligation on the legal practitioners to distil from her documentation that which is evidence, that which goes to the core of the legal and valuation issues before the court, and that which ultimately can be proved, can be relied upon by the court, and then can withstand any appeal. 

13. I intend to make an order for the electronic provision of evidence by witnesses in Russia and America, though that will be at the convenience of the court and during court hours.  I will have my court officer book a Russian interpreter for the three days of the hearing.  I do not underestimate the difficulties that might arise in the giving of appropriate evidence, but I again stress that any evidence to be given must be culled, relevant, and germane to the issues before the court.  I require the wife’s solicitor to forward these ex tempore reasons to the husband and his former solicitors, and to reinform them of the hearing date and specifically of any and all orders sought against the investment moneys held in trust from the sale of the Queensland properties, and all other orders generally.

14. I will have these reasons transcribed and placed upon the court file and appropriately served.

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: