Robinson and Shelter (No 2)

[2010] FamCA 202

FAMILY COURT OF AUSTRALIA

ROBINSON & SHELTER (NO. 2) [2010] FamCA 202

FAMILY LAW – CASE MANAGEMENT – Property and financial proceedings – Husband a citizen and resident of Russia – Request to travel to Australia for the proceedings – Grant of visa – Necessity for hearing of proceedings – Finality

APPLICANT: MS ROBINSON

RESPONDENT: MR SHELTER

FILE NUMBER: MLF 2725 of 2006

DATE DELIVERED: 9 MARCH 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 9 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ROBINSON

SOLICITOR FOR THE APPLICANT: MARK SHENKEN

COUNSEL FOR THE RESPONDENT:

FOR THE RESPONDENT: MS L SHELTER (DAUGHTER) BY LEAVE FOR HER FATHER

Orders

IT IS ORDERED:

1. THAT within ten (10) days the solicitors for the wife:

   (a)make, file and serve a further amended application for final orders upon the husband’s solicitors, Kennedy Wisewoulds;

   (b)provide to Kennedy Wisewoulds, solicitors, updated copies, as underlined in red ink, of the affidavits as amended, to be relied upon by the wife and her witnesses, and as have been provided to the Court this day.

2. THAT on or before 8 April 2010 the husband instruct his solicitors, Kennedy Wisewoulds, to provide to the wife all updated information upon the progress or granting of his sponsored family visa, or any subsequent visa applied for by him, and disclose any issues arising which may have an impact upon the attendance of the husband at Court for the adjourned hearing of this matter on 2 August 2010.

3. THAT on or before 15 April 2010 each of the solicitors for the husband and wife confer as to all disclosed documents and required financial information in an endeavour to ensure compliance by the husband with paragraphs 6 and 7 of the Orders made 21 October 2009 and for the purposes of drafting a joint balance sheet of all assets, financial resources and liabilities.

4. THAT the husband instruct Kennedy Wisewoulds on or before 14 May 2010 to make, file and serve the following documents:

   (a)     an amended response to the final orders now sought by the wife;

   (b)     his trial affidavit;

   (c)     affidavits of any other witnesses upon whom he intends to rely;

   (d)     an updated statement of financial circumstances.

5. THAT on or before 14 May 2010 the husband instruct Kennedy Wisewoulds to make, file and serve an affidavit of documents, for the period 1 January 2005 until the date of filing thereof and such affidavit is to set out, in detail, all of the documents which are or have been within the power, possession or control of the husband or his servants or agents and without limiting the scope thereof to include:

   (a)documents relating to the construction, ownership or sale of any real property;

   (b)documents evidencing ownership or interest in any company or corporate entity, partnership or business and the records and valuations thereof;

   (c)documents evidencing all assets owned by or which have been disposed by or on behalf of the husband whether during or post the date of separation;

   (d)documents evidencing all of the bank accounts of the husband or loans made from banks or financial institutions or other individuals or corporate entities;

   (e)documents evidencing any and all income from salaries, employment or other corporate or business activities in which the husband has an entitlement, interest or otherwise has been engaged.

6. THAT otherwise liberty is reserved to the wife’s solicitors upon reasonable and proper written notice to seek like documents from the husband for any other, and earlier, business venture, borrowings or commercial activity.

7. THAT the husband (and where applicable the wife) do all acts and things, give all instructions and make all necessary requests and applications to obtain documents and records of acquisition and/or disposal of the following properties:

   (a)the apartment (Number unknown) at M Street, Russia;

   (b)the apartment at 20 O Street, Russia;

   (c)5 O Street, Russia;

   (d)82 G Street, Russia;

   (e)apartment 14 G Street, Russia.

   and all such documents, or true copies thereof are to be provided to the solicitors for the other party on or before 14 May 2010.

8. THAT in the event that the husband through his solicitors fails to comply with Orders 2, 4, 5 and 7 hereof on or before 14 May 2010 then the wife and her solicitors have liberty, upon proper written documentation filed, to make application to this Court for the matter to be heard and determined on an undefended basis.

9. THAT the final hearing of all extant applications be listed for a four (4) day hearing commencing 2 August 2010 before Young J.

10. THAT for case management purposes the matter be listed before Young J on 1 June 2010 at 10.00 a.m.

11. THAT the solicitors for the wife have leave to inspect and copy the file of the Department of Immigration and Multicultural Affairs, now before this Court pursuant to subpoena, but all such documents are to be used only for the purposes of the s.79 proceedings in this Court.

12. THAT the evidence of Ms Keat Mun Low and Ms Lena Hung given this day be transcribed and placed upon the Court file and be made available to all parties.

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

14. THAT liberty be reserved to each of the solicitors for the husband and wife to apply to the Court upon proper written documentation in respect of any issues arising in these proceedings or from the Orders made this day.

15. THAT the husband pay the wife’s costs of and incidental to the court appearance and hearing on 24 February 2010 and the hearing this day, fixed in the sum of $8,000 and that such costs are to be paid from the monies currently invested by or on behalf of the parties in the Westpac Banking Corporation Term Deposit (and to be paid by arrangement either at maturity of the current investment term or as the wife otherwise instructs her solicitors).

16. THAT leave be granted to the wife’s solicitors to file the affidavit of Mark Shenken, solicitor (and that affidavit is forthwith to be served upon the husband’s solicitors).

17. THAT in respect of any copy document or record supplied by or on behalf of the husband to his solicitors and produced to the wife’s solicitors prior to hearing then the husband is to hereafter supply the original of such document or record at or prior to the Court listing this matter on 1 June 2010.

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

A.THAT the husband’s daughter travelled from Sydney for the purposes of the hearing this day and, upon her application and by agreement she has represented her father’s interests in Court this day.  She has confirmed to the Court her instructions from her father to re-engage Kennedy Wisewoulds solicitors and hereafter that firm will be recorded as the solicitors on the record for the husband and any and all documents may be properly served upon the husband by service upon those solicitors.

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. The matter of Robinson & Shelter was listed as a defended matter before me this day.  Mr Robinson of counsel appears for the wife together with his instructing solicitor.  His client has been in court throughout the proceedings.  The husband remains in Russia, but his daughter, Ms L Shelter, has travelled from Sydney to advise the court of matters on behalf of her father.  The husband retains Kennedy Wisewoulds, Solicitors, in these matrimonial proceedings.  They have previously appeared, though on various occasions have appeared on an amicus curiae basis. 

2. The Court has been advised by the daughter that they are now to be permanently retained as solicitors in the proceedings before this Court.  She has confirmed the authority of her father given to her to file a Notice of Address for Service whereby Kennedy Wisewoulds, Solicitors, of Melbourne, are recorded as hereafter being reinstated in the proceedings and acting for the husband.  I accept the assurances of his daughter in that regard and Casetrack will be updated to show that firm now acting.  To support that situation, Ms Shelter has confirmed that she has an appointment tomorrow at 11 am with Mr Spender, solicitor of that firm, to discuss all aspects of this case and to update and confirm his reinstatement as solicitor for the husband.

3. When the matter was called this morning the issue immediately arose as to the whereabouts of the husband and the fact that he has now engaged a separate firm of solicitors to obtain a sponsored family visa from the Federal Department of Immigration so as to enable him to travel to Australia for this hearing.  The background to that application is that previously he had applied for a tourist visa and that seemingly had been rejected.  He now applies for a visa sponsored by his daughter who resides permanently in Australia.  That application has only recently been filed, on or about 5 March 2010, and it would seem that it was only then that the documents in support from the daughter were obtained and all other documents obtained from the husband.

4. The solicitor and an article clerk from the firm Erskine Rodan have given evidence as to that application and its lodgement.  It seems that there will be at least three weeks or thereabouts before an allocation is made to an official of the Department as a case officer on that particular application.  Thereafter a decision will be made as to whether a visa be granted. 

5. I have in earlier ex tempore judgments highlighted the need for the husband to be in Australia and in this court for the purposes of a hearing if he is to fairly and best present his legal argument to the court.  From what was said by each of the solicitors, Ms Low, and Ms Hung, it is clear that that information is part of the covering letter attached to the application for the family sponsored visa.  I will have the evidence of both Ms Low and Ms Hung transcribed and placed upon the court file and made available to these solicitors for both parties.

6. At the outset of proceedings today I received an outline of the wife’s case which incorporates the current pool of assets within Australia and other assets and liabilities of the husband.  That document is perhaps drawn on a somewhat limited basis in that it excludes ownership or interest that the husband may currently have in overseas businesses or enterprises or other real property holdings.  The wife’s counsel encapsulated those additional assets, such as may be able to be proved, under the umbrella of other financial resources.  It may however be that such a statement of assets and liabilities will need to be redrawn on the basis of any further documents disclosed or facts known to the wife through further investigations or disclosures.

7. The other aspect of that outline of case document is that the wife would seek to amend her application before the court so that she now retains the proceeds of sale of the various properties in Queensland which moneys are now invested in a Westpac term deposit account and which total approximately $1.325 million, AUD. 

8. Pursuant to the most recent order that I pronounced in February the wife’s solicitor has also highlighted in the affidavit of his client and in the various witness affidavits those parts of the documents which are not to be relied upon on the basis that they are either inadmissible or hearsay or otherwise will not be the subject of available proofs.  Accordingly, it would be appropriate for copies of those underlined documents to be forthwith provided to Kennedy Wisewoulds so that, in their representation of the husband, they have a very clear and up-to-date understanding of the actual evidence to be relied upon by and on behalf of the wife in her various documents.

9. Additionally and by way of leave of the court, a further affidavit of the wife’s solicitor, Mr Shenken was filed this day and likewise a copy of that affidavit must be served upon Kennedy Wisewoulds hereafter acting for the husband.  I am satisfied that the matter should not proceed to hearing this day. 

10. Finally it would seem that the husband is giving some level of priority to this case and seeking to obtain a just and equitable property settlement from this court. There is at least a Westpac bank account with approximately $1,325,000 within Australia and/or other assets which the wife may have. In due course it is necessary to balance those Australian assets against all of the available net assets of or controlled by or on behalf of the husband in overseas countries, principally in Russia. The obligation of the husband is to make fair and proper disclosure of those assets and any genuine liabilities there so that all assets and liabilities of the marriage can be identified and a division of assets be made pursuant to section 79 of the Family Law Act.

11. Throughout this case the concern of the wife has been as to proper and full disclosure.  There are many orders of the court that have been made either in the presence of the solicitor for the husband or on an undefended basis requiring production of documents and disclosure of financial information.  Many of those matters remain outstanding and again I have been urged by counsel for the wife to make comprehensive orders this day so that the husband and his solicitors are under no misunderstanding that full and proper disclosure of assets, financial resources, liabilities and all other matters and facts are wholly before the court and known to the wife and her legal practitioners. 

12. I have received a memorandum of orders drafted by the wife’s counsel.  The husband’s daughter does not agree with many or indeed all of those orders.  I intend to make orders that I regard as appropriate and which are somewhat of a balance of the orders sought and with extended timeframes for compliance.  It is again appropriate to emphasise that this matter must be heard and concluded.  Finality is needed sometime in this matter lest the legal fees become substantial and there be less and less moneys available to be distributed between the parties. 

13. I again take this opportunity to reiterate that it would be of assistance to the court and meaningful in the proper determination of this case which is rightly issue out of an Australian court for the husband to be granted a sponsored family visa to attend for the hearing and there to present his submission to the court through solicitors and for the matter to be able to be conducted in a proper and face-to-face manner, rather than by some form of electronic or telephone hearing involving overseas participants.  I will have these brief reasons transcribed, placed upon the court file and made available to both parties.

14. As part of the orders sought Mr Robinson requests the wife’s costs of this day and of the earlier hearing of 24 February 2010 before me be awarded and the sum sought is $10,170.  That sum is comprised of the brief fee of counsel this day of $3,300 and counsel appearing on the earlier mention day in the sum of $1,320 and otherwise costs of preparation and attendance of instructing solicitor, preparation of brief, conferences of counsel and solicitor and other matters that are said to be part of preparation for both the 24 February hearing and this day but in part including preparation for hearing of the issues, albeit on what could have been anticipated to be an undefended basis.

15. I have carefully considered the provisions of section 117 of the Family Law Act.  The principle therein contained is that the parties pay their own costs.  The exception is that there are circumstances where it is just for a costs order to be made.  Those circumstances and the matters to be evaluated are set forth in subsection (2A) thereof and I have carefully considered each of those matters.  I do conclude that it is just for a costs order to be made.  I intend to exercise my reasonable discretion in determining a costs order balancing preparation that can and will be available for a defended hearing notwithstanding that it may be six months hereafter.  I intend to allow $8,000 in costs as all costs of and associated with the previous hearing of 24 February and of this day.  I will order that sum of money to be forthwith withdrawn from the Westpac term deposit account which currently is invested for six months and it may be that the wife’s solicitors prudently wait for the maturity of that investment before deducting $8,000 to meet or contribute towards the wife’s costs for each of the hearings which I have identified.

16. There are some issues before the court as to the extent to which the wife’s solicitors should have the ability to inspect court documents from the Department of Immigration and Multicultural Affairs and for the wife’s solicitors to have leave to both inspect and more particularly to copy documents produced under subpoena from the Department.  That file is currently with the court and given that it relates to an earlier visa application and/or matters which may have occurred during the marriage, I intend to make such an order and see no disadvantage or breach of privilege whatsoever to the husband.

17. I have also been met with a request for an order for the husband to provide an ongoing and irrevocable authority to enable the wife’s solicitors to have discussions with the Department of Immigration and Multicultural Affairs in relation to any current application.  That is a more contentious matter and it may or may not have some impact upon the successful obtaining of a visa.  It is a current matter and I would approach that matter on the basis that as there are independent migration solicitors engaged, Erskine Rodan and Associates, any inquiries should reasonably be made through them as they are the solicitors who have made application on behalf of the husband and at the request of the husband’s family lawyers.

18. I clearly state the intent and purpose of the court is for the husband to diligently proceed with that visa application and be in Australia on or well prior to 2 August 2010 for this matter to commence and be heard.  In the clearest, and indeed bluntest terms I record in these reasons to be read by all that I intend this matter either with or without the presence of the husband will start on that day and then be concluded.

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: