Robinson and Shelter

[2009] FamCA 120

FAMILY COURT OF AUSTRALIA

ROBINSON & SHELTER [2009] FamCA 120

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Further affidavits and proper disclosure

Family Law Act 1975 (Cth)

APPLICANT: MS ROBINSON

RESPONDENT: MR SHELTER

FILE NUMBER: MLF 2725 of 2006

DATE DELIVERED: 16 FEBRUARY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 16 FEBRUARY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ROBINSON

SOLICITOR FOR THE APPLICANT: MACGREGORS

COUNSEL FOR THE RESPONDENT: MR SPENDER (AMICUS CURAE)

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT the further hearing of all extant applications be adjourned for case management to Friday 29 May 2009 at 10.00 a.m.

2. THAT within forty-five (45) days the husband comply with the requirements of paragraph 2 of the earlier order dated 29 October 2008 and in particular make, file and serve:

   (i)        a response to the application for final orders of the wife;

   (ii)an updated Form 13 financial statement inclusive of all assets whether located within Australia, Russia or elsewhere;

   (iii)an updated affidavit of evidence in chief;

   (iv)affidavits of any further witnesses upon whom he intends to rely.

3. THAT within twenty-one (21) days the wife make, file and serve:

   (i)an updated Form 13 financial statement disclosing all income assets and investments;  and

   (ii)an updated affidavit of evidence in chief dealing in particular with all relevant circumstances post the date of separation from her former husband.

4. THAT the husband forthwith provide to the wife and to her solicitors a written authority directed to the ANZ Bank whereby they are authorised to discuss and inform the wife and her solicitor of all current matters and facts as to the husband’s ownership of or dealing with the Queensland properties known as:

   (i)S property, Queensland;  and

   (ii)Units 3604 and 4802 Gold Coast;

   (iii)and further the authority extend to authorising the bank to keep the wife updated as to the level of liability and all actions taken by it to recover possession of any one or all of the real property.

5. THAT the husband likewise provide to the wife and to her solicitors a written authority authorising and disclosing to the wife the names and business addresses of all real estate agents who have managed or acted on behalf of the husband or others in respect of each and all of the Queensland properties so as to facilitate proper disclosure of all rental income paid, past expenses and outgoings and any other relevant financial material in respect thereof.

6. THAT it is requested (but not as an order) that Ms B, Chief Government Registrator in charge of the administration of the Federal Registry Service of K Province, Russia to forward to the wife, or to her Australian solicitors, Macgregors, details of any and all changes in ownership including the history of purchase and sale, by or on behalf of the husband of the following properties:

   (a)P Street, …, Russia;

   (b)M Street, …, Russia;

   (c)20 O Street, …, Russia;

   (d)5 O Street, …, Russia.

7. THAT the above request forwarded to Ms B in her official capacity is made in the context of a civil case being conducted in the Family Court of Australia as between the husband and wife and related to a division of matrimonial property and in this context, whilst property is in Australia, both the husband and wife are citizens of Russia and each hold a Russian passport.

8. THAT the solicitors for the wife forthwith serve a sealed copy of this order upon:

   (i)the proper officer, ANZ Bank and its solicitors;  and

   (ii)Ms B

   (iii)and then file appropriate affidavits of service with this court.

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

10. RESERVE liberty to apply upon proper documentation filed and served if any matter of financial urgency, or otherwise, should arise prior to the adjourned case management hearing date.

IT IS NOTED:

A.THAT a copy of this order is to be forwarded to the former solicitors acting for the husband in Melbourne, Kennedy Wisewoulds.

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

MR ROBINSON

Applicant

And

MR SHELTER

Respondent

REASONS FOR JUDGMENT

1. The matter of Shelter & Robinson is again before me in a case management list awaited a defended hearing.  Mr Robinson (no relation to the husband) of counsel appears for the wife who is in court.  Mr Spender, solicitor, has announced an appearance  amicus curiae on the basis that he previously acted for the husband but presently does not have instructions to act.

2. As to the husband's non-appearance here today, Mr Spender has explained that he is now in further email communication with his client, but as yet does not have full and proper instructions and is not funded to appear in this court on his behalf.

3. The husband is, of course, a citizen and resident of Russia and I have been provided with an email which was purportedly prepared and sent by the husband to the Australian Embassy, Moscow, Immigration and Visa Section requesting the issuing of a visa for him to attend court here today or otherwise to be in Australia to oversee his residential property interests and to conclude this case before the Family Court of Australia related to a division of property of the parties pursuant to Section 79 of that Act.

4. I have cited an email, presumably sent after 23 December of last year where the husband inquires as to when a visa will issue.  He sets out the basis of his original entry to Australia as a business immigration person and the fact that his only daughter is now married to an Australian citizen and lives in Australia.  He says he has visited Australia more than 50 times and has never violated any law of this nation.  He has obviously supplied documents and seeks a short-term multiple visa and the return of passport which the Australian Embassy in Moscow is holding and seemingly has held since 23 December when they accompanied the husband's original application for a visa.

5. I am not prepared to entertain any application for an order to be made against the Department of Foreign Affairs and Trade, and more particularly directed to the Australian Embassy, Moscow.  I do, however, take this opportunity of incorporating within this extempore judgment that there are genuine and ongoing property proceedings before this court. 

6. There are property assets in Australia comprising a residential home at S in Queensland, which is a valuable property, and otherwise two residential units in a substantial property development on the Gold Coast, Queensland.  These properties are encumbered by mortgage liabilities to the Australian and New Zealand Bank and there are other procedures or court hearings by that bank as against the husband and/or wife seeking recovery, possession and payment of debt.

7. One could well understand that a person who has heavily invested in Australia would like to present in this country to discuss or negotiate with that bank or otherwise oversee the realisation of assets.  There is likely to be some equity remaining from those three properties, subject to sale price costs and all other such issues.  Ultimately, any money will be an issue for division between the husband and wife by this court.  I therefore record it would be extremely helpful for the husband to obtain a visa, on proper grounds and information supplied, and for him to be in Australia on the adjourned hearing date which I will fix for 29 May 2009.

8. I have determined to mark as Exhibit “1” in the proceedings the documents that Mr Spender has provided to me this day in respect of the email transmissions between the husband and the Australian Embassy at Moscow. 

9. The husband was previously ordered to file financial documents and affidavits of evidence before the court before 19 November of last year.  He has failed to serve and file those documents and I will make a further order today giving him 45 days in which to make, file and serve all such documents.

10. I have taken the opportunity today to read the material that the wife has filed with the court and, in the context of any defended hearing, that is somewhat deficient in disclosing what her counsel have advised me as to her recent marriage to an Australian citizen and national and her updated financial circumstances.  Accordingly, and because they are discrete matters, within 21 days the wife must file an updated affidavit and Form 13 financial statement properly disclosing her current circumstances and income and dealing with the issue of her application for an extension of her current temporary visa or otherwise the granting of a permanent visa, and the basis upon which she indicates she is and remains in Australia and thus satisfies the necessary jurisdictional issues that otherwise may arise for consideration before this court.

11. I have been advised by Mr Robinson of counsel that the ANZ bank has now taken possession of the two Gold Coast units, being Unit 3604 and Unit 4802, … Building, Queensland.  Indeed, one of the units is currently being actively marketed for sale.  The other significant property owned by or on behalf of the husband or the parties to this marriage is a residential property at S, Queensland.  That is a valuable property and has previously been deposed in these proceedings to have a value that formerly was in excess of $3 million.  Its current value is unknown.  It is said that the husband's daughter by a prior marriage, L, now resides in that property.  She has recently married to an Australian citizen (March 2007) and lives permanently in Australia.  That matter is identified in the most recent affidavit of the wife filed 17 October 2008.

12. L and others currently live in that S home and I make no further comment or observation in respect of any proceedings which the ANZ Bank may be taking to recover possession and/or to sell that property to discharge the mortgage debt of the husband and/or wife.  Again, I have been advised by Mr Robinson of counsel through his client that the total debt said to be owing to the ANZ Bank may exceed $2,500,000, but all of those issues await full proof.

13. With that limited background, the issues before this court are endeavouring to have evidence so as the value of assets, net of liabilities, can be determined so that there ultimately can be orders made dividing up the property of the parties in a just and equitable manned as prescribed by Section79(2) of the Family Law Act 1975.

14. Part of this case is the identification and valuation of assets and liabilities in Russia.  That presents some practical difficulties.  The court was earlier persuaded to pronounce an order requesting an appropriate government department within the province of K to provide information to the court.  Again, not on affidavit, but by way of submission from the bar table, Mr Robinson has advised the court that there are some level of ongoing discussions and a request has been made from the proper officer of that Russian government department for a redrafted order, emphasising that it is the civil jurisdiction of this court by way of family divisions of assets that seeks to ascertain further particulars in respect of the changes in ownership, history of acquisition and disposal and related financial interests concerning five identified properties within that Russian province.

15. Whilst this court well understands the limits of its jurisdiction and influence, I will make the request on the basis that it might provide meaningful information, and the husband will also then be aware of that request when proper service is effected upon him of this order.  I will accordingly hereafter pronounce in a form close to that requested by the wife's counsel such a formal request to be made to the chief government registrar in charge of the regulations and service of land and dealings in that province.

16. I am also asked to direct the husband to provide an authority in writing in favour of the wife so that she and her solicitors can be updated by the ANZ Bank on its recovery process and on total liability owed by or on behalf of the parties to that bank.  Whilst I have raised the issue of appropriate service on the ANZ Bank and giving them the invitation to be in court if that order is directed to the husband to provide the authority, it is seemingly appropriate and should not in any way frustrate the bank in its civil recovery actions.

17. I have a further request on behalf of the wife for the husband to identify real estate agents who manage the three Gold Coast properties.  Given that two of them have already been recovered and marketed and the tenants removed, that request would seem to now relate only to the S property.  I will request the husband to provide that information, but presumably the rent went towards the total mortgage liability and was not likely diverted by the husband to personal requirements.  All of that can stand future investigation and scrutiny.

18. I will have these appropriate orders and requests served by the wife's solicitors upon all interested or associated parties including, most importantly, the ANZ Bank and its commercial solicitors who have been identified to the court by the wife's counsel and who, in any event, I am told have been correspondence with the wife's solicitors.

19. For those very brief extempore reasons, I will order as follows.

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: