Robinson and Shelter (No 3)

[2009] FamCA 1016

FAMILY COURT OF AUSTRALIA

ROBINSON & SHELTER (NO. 3) [2009] FamCA 1016

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Husband still resident in Russia and unable to obtain Australian visa – Property valuations and full and proper disclosure of assets and liabilities – Sale of property and investment of available net proceeds of sale – Third party issues – Costs alleged outstanding to wife’s previous solicitors – Necessity of the husband to be in Australia for hearing at future defended date in March 2010 – Valuation and contribution issues

Family Law Act 1975 (Cth)

APPLICANT: MS ROBINSON

RESPONDENT: MR SHELTER

FILE NUMBER: MLF 2725 of 2006

DATE DELIVERED: 21 OCTOBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 21 OCTOBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ROBINSON

SOLICITOR FOR THE APPLICANT: MARK SHENKEN

COUNSEL FOR THE RESPONDENT: MR SPENDER (amicus curiae)

SOLICITOR FOR THE RESPONDENT: KENNEDY WISEWOULDS

Orders

IT IS ORDERED:

1. THAT paragraph 1 of the orders of this Court pronounced 4 March 2009 be varied to provide that, subject to Orders 2 and 3 herein, the balance of monies remaining from the settlement of the sale of S property (“the Queensland property”) are to now be paid to the trust account of Mr Mark Shenken, Lawyer, Victoria, and that those monies are to be held by him on trust for the parties pending further order of this Court.

2. THAT from the net proceeds of the Queensland property it is requested that the solicitors acting upon the conveyance, Messrs H.W.L. Ebsworth of Brisbane, disburse the net proceeds of sale after payment of all proper liabilities, costs and outgoings as follows:

   (i)in the sum of $30,000 to MacGregor, Barristers & Solicitors, such monies there to be held on trust pending determination and court order on the quantum of costs and disbursements to be paid to that firm by the wife;  and

   (ii)the balance of the net proceeds of sale be paid to the wife’s present solicitor, Mr Shenken, to be held by him on trust for the parties and pending further Court order.

3. THAT from those monies paid to Mr Shenken pursuant to paragraph 2(ii) hereof he be at liberty to access up to a sum of $30,000 thereof as and by way of security for costs and in payment of the wife’s ongoing legal costs and disbursements in these proceedings but all such monies are to be considered by the Court, and then categorised, in the s79 proceedings.

4. IT is requested that MacGregor, Solicitors, serve a sealed copy of this Order upon H.W.L. Ebsworth, Solicitors.

5. THAT liberty be reserved to H.W.L. Ebsworth, Solicitors, to apply, on proper material filed, to this Court in respect of any matter arising out of these Orders that may adversely impact upon them or their client(s).

6. THAT on or before 7 December 2009 the husband make full and proper disclosure to the wife’s solicitors of all of his assets and income and in particular disclose all bank statements, share certificates, real property holdings and other corporate and financial interests, and provide a valuation thereof (and for the purposes of this Order and this obligation is inclusive of any corporate holding or interest of the husband or any assets held on his behalf).

7. THAT the husband, by 7 December 2009, provide all original documents and original transactions that evidence all liabilities or borrowings (as alleged) and co-operate with any required investigation for or on behalf of the wife as to their validity and quantum.

8. THAT on or before 15 January 2010 the wife make, file and serve:

   (a)     an amended application for final orders sought;

   (b)     her trial affidavit;

   (c)the affidavit of any additional witnesses upon whom she intends to rely;

   (d)     an updated financial statement.

9. THAT on or before 22 February 2010 the husband make, file and serve:

   (a)     an amended response as to final orders sought;

   (b)     his trial affidavit;

   (c)the affidavit of any additional witnesses upon whom he intends to rely;

   (d)     an updated financial statement.

10. IT is directed that the husband unless otherwise notified in writing personally attend at the Family Court, Melbourne Registry, at the commencement of the defended hearing fixed for 9 March 2010 (as a three day defended hearing).

11. THAT the husband, or his solicitors on his behalf, be at liberty to serve upon the Department of Foreign Affairs and Trade a sealed copy of this order which is to evidence the requirement of the husband to personally attend at the Family Court of Australia, Melbourne Registry, on 9 March 2010 for the purposes of the defended hearing.

12. THAT the matter be listed for case management on 24 February 2010, at 10.00 a.m. and each of the husband and wife are to be represented at that hearing and each may attend in person.

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

14. THAT if any of the additional witnesses of the wife intend to give evidence from overseas, and with the assistance of an interpreter, then an appropriate application supported by proper affidavit material must be filed and served contemporaneously with the documents identified in Order 8 hereof.

IT IS NOTED:

A.THAT the intention of the Court is that if the husband were to re-engage as solicitors Kennedy Wisewoulds, they may access the extempore reasons for judgment in preparing any submission to the Department of Foreign Affairs and Trade for the husband to be granted a visa to attend at this Court for the defended proceedings commencing 9 March 2010.

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 and Shelter is again before me in a case management and interim hearing list of cases pending its final defended hearing.  Mr Robinson of counsel appears for the wife, though this time he is now briefed by the recently engaged solicitors for the wife, Mr Shenken.  The wife is in court.  There is no appearance by the husband.

2. During the proceedings, however, the former solicitor of the husband, who has not been formally re-engaged, Mr Spender, appeared on an amicus curiae basis to advise that he had received an email from the husband as of yesterday indicating that the purported visa issues preventing the husband from entering into Australia remained a real and live issue.  I have no evidence from the husband in that regard and I accept the observations of Mr Spender as endeavouring to be of assistance to the court.

3. In the course of the proceedings before me, the former solicitors for the wife appeared in court and, without any formal intervention, addressed the court on the quantum of legal fees allegedly owing by the wife to their firm.  That was said to be a sum of $26,655.21 and an itemised statement of those costs and disbursements, covering approximately 40 pages, was said to have been formally served upon the wife on a prior date.  The relevance of those solicitors being at court is that it is provided for in paragraph 1 of my earlier orders pronounced 4 March 2009 that any proceeds of sale of a Queensland property, in excess of the bank liabilities, was to be paid into the trust account of Macgregor, Barristers and Solicitors, to be held pending further order of the court. 

4. By a further order contained in paragraph 1 of my orders of 29 May 2009, it was ordered that a sum of $30,000 be forthwith paid to Macgregor, Barristers and Solicitors, for and on behalf of the wife, in payment of her past and ongoing legal expenses and disbursements.  Thereafter it was additionally ordered that the categorisation of that payment of $30,000 be reserved to the trial judge.  On some date in or about September of this year, and for reasons in respect of which the court does not now make inquiry, the wife changed or was requested to change solicitors and she has engaged her current firm.  The past solicitors have an unpaid bill and through her counsel the wife has indicated some intention to challenge the quantum of that bill.  What I propose to do is to appropriately reflect in orders today that a sum of $30,000 is to be held in trust by Macgregors for and on behalf of their costs and disbursements but not to be paid until those sums are finally agreed or ascertained by taxation or other court proceedings. 

5. Mr Robinson then raised with me the additional issue, not presently identified in any detail before me, that his current solicitor will have no funds for the ongoing preparation of the defended hearing.  I have suggested, and there is no disagreement from counsel or client present in court, that I will set aside, in the trust account of Mr Shenken, an identical sum of $30,000 for future ongoing costs and disbursements, again, subject to categorisation by the trial judge.  That is an issue which may ultimately reduce the available pool of assets and upon which the husband may wish to be heard and it is, therefore, for that fact that I make the appropriate qualification to the order.

6. The husband and wife, or one or either of them, formerly owned three properties in Queensland and they are described in paragraph 1 of my orders dated 4 March 2009.  The understanding of the court is that all properties are now sold and as a result of the further affidavit of the wife filed 15 October 2009, it is known that the last property, S property in Queensland, was sold on 12 September 2009 for $2.7 million.  Settlement is expected on or about 11 December 2009.  Mr Robinson, counsel for the wife, has advised the court that the remaining monies to be paid to the bank are approximately $1.2 million and thus there is a net available for distribution as between the husband and wife in section 79 proceedings of $1.5 million or thereabouts.

7. The court is further advised that the solicitors acting for the bank and settling the sale of that Queensland property is the Brisbane firm, H.W.L. Ebsworth.  They are not represented at court and nor could that have been expected.  I will, however, request that firm to make payments of the net proceeds of sale after all liabilities are paid and all costs, expenses and proper charges have been discharged of the balance of monies pursuant to these orders.  As a matter of courtesy and, if necessary, I would formally reserve leave for them to approach the Court for any variation of the order.  What I intend is that $30,000 be paid to Macgregors, pursuant to the earlier indications in these ex tempore reasons for judgment, those monies to be held on trust that I have previously described; the balance of monies be paid to the wife's current solicitor;  he to be at liberty to have access to $30,000 as a security for costs orders and all of the balance of monies to be held on trust pending further order of the court or the conclusion of section 79 proceedings.

8. As to the substantive facts, the husband lives in Russia and, to the best of the knowledge of the wife, remains in Russia to this day.  It is alleged by him that he has visa difficulties and cannot travel to Australia.  I make no finding in that regard but I will ensure that a copy of the order this day is available to be served on the Department of Foreign Affairs and Trade.  It is important for the proper determination of all aspects of this case that the husband have the facility to attend at Court, and in Australia, and to present any legal or factual argument as to alteration of property interests.  It would be difficult to conduct the proceedings with him on telephone in Russia or by other electronic means as the court may hereafter order.  There is, therefore, a genuine reason for the husband to be in court because I do intend to list his final property proceedings on 9 March 2010 for a three-day defended hearing. 

9. The issue otherwise raised on behalf of the wife is for the husband to make proper disclosure.  The issue raised on behalf of the wife is for the husband to make proper disclosure and production of all financial documents and records including bank statements, shareholders certificates, property ownership documents and corporate documents evidencing assets and income.  There has been a history of past orders and alleged non-disclosure by the husband.  I will pronounce a general order, in the form sought by the wife in her further affidavit filed this day, requiring disclosure and production and, in due course, the husband will be required to file a trial affidavit, affidavits of any other witnesses and a financial statement in full and complete disclosure of his assets, liabilities, financial resources and income. I will allow the husband until 7 December 2009 to make full and proper disclosure and production and afterwards he would understand that if those documents and information are not by then discovered properly and fully then there is a very real likelihood that this case will proceed on the basis of the financial information put before the court by the wife or otherwise accepted by the court on evidence. 

10. The husband has previously engaged a local firm of solicitors, Kennedy Wisewoulds and Mr Spender of that firm has briefly made an unscheduled appearance, as amicus curiae, earlier this day.   I will have a copy of these orders provided to Kennedy Wisewoulds as a matter of courtesy and so that they can also convey the orders of these day and these ex tempore reasons to the husband with the very clear message that his attendance is required at court at the defended hearing.  His obligation is to make disclosure of all of his assets, income and liabilities.  For clarity, where I use the word "his" it includes any corporate asset or asset held by or on behalf of the husband. 

11. I intend that the wife will file her trial affidavit, affidavit of supporting witnesses (if any), and an up to date financial statement by 15 January 2010.  Mr Robinson has foreshadowed that there may be witnesses who reside in Russia and who are unable to attend Australia for the hearing.  I have not, as yet, given any agreement for the evidence to be given by electronic means.  In a property case that will present certain difficulties if documents are involved and if any evidence is to be given through a Russian translator.  If such evidence is to be adduced in the proceedings, an appropriate application for the use of electronic means will have to be prepared and filed pursuant to the family law rules at a later date.  I will require the husband to make, file and serve his trial affidavit, the affidavits of any supporting witnesses and a complete and up to date financial statement on or before 22 February 2010.  If and when all trial affidavits, financial statements and affidavits of supporting witnesses are filed I will then schedule a hearing on 9 March 2010 of three days duration. 

12. As a matter of caution, I will list this matter for mention before me on 24 February 2010 at 10.00 a.m. to ensure that there is compliance with the procedural and case management orders and for the specific purpose of then confirming the defended hearing to commence on Tuesday, 9 March of that year.  Subject to obtaining an Australian visa and being permitted to enter the country I intend to make an order directing the personal attendance of the husband at the hearing on 9 March 2010 and that may carry some weight and be of some assistance with the issuing of a visa for his physical attendance in Australia and at that court hearing.  Otherwise it is appropriate that the recent affidavit of the wife filed 15 October 2009 be served upon the husband and in court this day the counsel engaged by the wife has provided, or will provide, a copy of that affidavit to Mr Spender.

13. The other requirement for case management is that the wife must make, file and serve her amended application for orders sought and the husband must then, in the timetable provided, make, file and serve an amended response to orders sought. 

14. Finally I take this opportunity to record in the ex tempore reasons that the first task of the court in any defended hearing is to ascertain the pool of assets.  That is, to determine what are the assets, financial resources and liabilities of the parties and it is to that issue that their evidence must be directed.  It is only upon the identification of the net pool of assets that the court may then turn to consider the section 79(4) issues and section 75(2) factors in the case and the contribution of the parties and then determine a just and equitable alteration of property interests pursuant to section 79(2) of the Family Law Act.  I say that for clarity so the attention of the husband is clearly focussed upon the production of evidence to the court of assets, including all assets (if any) held in Russia and all liabilities.

15. In paragraph 8 of the wife's affidavit filed today, she has put in issue the requirement to cite original documents and original transactions relating to any borrowed monies or alleged liabilities and, again, I direct the husband's attention to that request of the wife and his obligation to satisfy the court as to the authenticity of any alleged liabilities or borrowings.  I will have these brief ex tempore reasons transcribed, place upon the Court file and made available to the husband and wife and their respective solicitors and, as a matter of courtesy, Mr Spender of Kennedy Wisewoulds will be provided with a copy of these reasons, notwithstanding that his firm currently is not engaged on the record to act for the husband.

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: