Robinson and Shelter

[2008] FamCA 554

FAMILY COURT OF AUSTRALIA

ROBINSON & SHELTER [2008] FamCA 554

FAMILY LAW - PROCEDURAL AND CASE MANAGEMENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT: MS ROBINSON

RESPONDENT: MR SHELTER

FILE NUMBER: MLF 2725 of 2006

DATE DELIVERED: 15 JULY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 15 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS JENKINSON

SOLICITOR FOR THE APPLICANT: MAGREGORS

COUNSEL FOR THE RESPONDENT: MR KENNEDY

SOLICITOR FOR THE RESPONDENT: KENNEDY WISEWOULDS

ORDERS

IT IS ORDERED:

1. THAT all extant applications be listed for mention, and as part of the docket of Young J, on Thursday 2 October 2008 at 10.00 a.m.

2. THAT the matter be assigned to a defended listing in the docket of Young J on Monday 24 November 2008, for a three (3) day defended hearing but only on the basis that all affidavits are filed and otherwise the matter is ready to proceed by the 2 October 2008 case management date.

3. THAT the wife make, file and serve her trial affidavit and any further affidavit of witnesses upon whom she intends to rely by 1 September 2008.

4. THAT the husband make, file and serve his trial affidavit, together with any further affidavits of witnesses upon which he intends to rely by 26 September 2008.

5. THAT both parties, by the required filing date, make, file and serve an updated Form 13 statement of financial circumstances disclosing all of their income, assets and liabilities and annexing all relevant supporting documents thereto.

6. THAT by each of the required filing dates the husband and wife are to update their application and response and state with precision the specific property, financial and spousal maintenance orders sought.

7. THAT if it is able to be so organised by the Melbourne Registry of the Family Court then a Financial Conciliation Conference be appointed for Friday 21 November 2008, at 9.15 a.m. before Registrar Sikiotis and both parties are to attend and there make a bona fide endeavour to resolve all financial and property matters in dispute.

8. THAT leave be granted to the wife to make, file and serve any further subpoenas upon which she intends to rely and they are to be made returnable before the Subpoenas Clerk on Tuesday 19 August 2008.

9. THAT leave be granted to the husband to make, file and serve any further subpoenas upon which she intends to rely and they are to be made returnable before the Subpoenas Clerk on Tuesday 16 September 2008.

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

    IT IS CERTIFIED

11. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Solicitors appearing as Counsel for each of the husband and wife.

    IT IS NOTED

A.THAT the husband will require a Russian interpreter for the Financial Conciliation Conference and the trial.

B.THAT the solicitors have estimated to the court that the trial, even allowing for an interpreter, will be between 2 – 3 days, and no more.

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. In the matter of Robinson & Shelter, MLF 2725 of 2006, the matter has been listed before me this morning for case management and procedural orders leading up to an intended defended day.  Ms Jenkinson, solicitor, appears for the wife; Mr Kennedy, solicitor, appears for the husband.

2. The initial application in this matter was filed 15 September 2006 by the wife, who then sought a lump sum property settlement and spousal maintenance, though it was not specified whether that was to be periodic or lump sum.  Thereafter, the husband filed a response effectively seeking the dismissal of the wife's application before the court. 

3. There have otherwise been various applications in a case and responses thereto filed and these interim matters all came before a Registrar of the court on 25 June 2007.  At that stage it was agreed and legal practitioners today confirm that the interim issues were resolved on the basis that the defended hearing of the matter remains in Melbourne and that there was to be appropriate documentation filed to enable that matter to proceed. 

4. I was provided this morning with a draft summary of assets, resources and liabilities as at March 2008.  The document is not yet consented to by the parties but it forms the basis of the identification of assets and liabilities before the court. 

5. In simple terms the parties own three properties in Queensland and a unit in Russia with a total valuation (in Australian dollar terms) of $4.825 million.  There are significant liabilities to the ANZ Bank encumbering the Queensland properties of approximately $2.6 million.  Otherwise, the assets are moneys had and received by one or both parties, personal items, or the proceeds of sale of apartments in Russia.  The liabilities are significant and there are three alleged loans identified in subparagraphs D.3, D.4 and D.5 of the document.  They are yet to be wholly investigated but in the manner in which the proceedings have been outlined to me this morning, there is no conflict with the corporate trading loan of $467,000 approximately but otherwise documents need to be updated to the two alleged personal loans.

6. The husband is a public figure in Russia.  He lives in the east of Russia, indeed off the mainland of Russia, and issues of his income and/or other assets have been flagged as being likely to occupy the wife's attention and take some time of the court.  If so, all of these matters need to be the subject of proper and admissible evidence. 

7. I have flagged with the solicitor appearing for the wife the issue of a pension or superannuation of the husband and if there is any evidence to be provided, then that matter needs to receive attention, though I was advised today that those matters were either not known to the wife or of little or no concern to the wife in preparation of this case.  Again, I leave that matter to solicitors.

8. The wife is a resident of Australia on an interim bridging visa.  She does not have permanent residence but seeks in her continuing application that outcome.  The husband was originally a business migrant to Australia with his wife but he has now returned to Russia and there permanently works and resides.  He will be applying for a visa, which may or may not cause some difficulty, to come to Australia, but at this stage the court is not asked to make any order to facilitate the issuing of a visa for that purpose and that is a matter that Mr Kennedy may, or may not, address the court on the adjourned case mention date.

9. I have made some inquiries as to the witnesses and length of case.  It seems as if the primary witnesses will be the husband and the wife.  Valuations are largely agreed.  Ms Jenkinson foreshadowed that the wife may delve into issues of alleged domestic violence and other levels of violence within the marriage on the basis that they have some relevance both to spousal maintenance and to property division.  I carefully make no finding, but Mr Kennedy has foreshadowed that if that were to be so, there would be between six and eight witnesses, from Queensland and Victoria, to file affidavits on behalf of the husband.  I merely urge both parties to have care and attention to detail in the evidence that they put before the court, both as to admissibility and as to relevance.

10. The husband will require a Russian interpreter and that is a matter that I will highlight in further case management and I would not intend to currently book any interpreter for the defended hearing.

11. I will have the document produced by the solicitors as to the summary of assets, resources and liabilities marked as an exhibit and retained on the court file.  I well understand that is not a consent document and it does not bind either party at this stage.  I will otherwise make orders today to facilitate the return and issue of subpoenas and to deal with case management matters.  I observe that the last affidavit in this matter was filed some 15 months ago and all of the court material must be properly updated on the basis of a trial hearing.  The estimate that I have received from solicitors is between two and three days, even allowing for the required interpreter but subject to the additional witnesses that may or may not be required to establish or rebut evidence of violence between the parties during the marriage.

12. The purpose of having recorded these observations is not as by way of judgment but to generally and, subject to further affidavits, identify some of the issues before the court and appoint a hearing date in November of this year.  I will make appropriate case management orders and bring this matter back before myself on 2 October to confirm the filing of required affidavits and to facilitate any interim hearing.  In that regard, Ms Jenkinson has foreshadowed that the wife may need to bring a security for costs application - she nominated $12,000 as the required sum - but also indicated that the wife has no income and no ability to work and must therefore live of capital.  Again, I make no finding whatsoever but it would be unfortunate if this matter were to proceed on an interim hearing, particularly if the wife is unable to prepare and file documentation until moneys are lodged in her solicitor's trust account.  That would have the unfortunate effect of frustrating the case management orders and negating the hearing date in November that I make available now to the parties.

13. I emphasise that that hearing date is provided on the basis that these orders will be complied with, documents will be filed and the matter will be ready to proceed. 

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

Associate:  …

Date:  18 July, 2008