Robinson and Shelter (No 4)

[2010] FamCA 633

FAMILY COURT OF AUSTRALIA

ROBINSON & SHELTER (NO. 4) [2010] FamCA 633

FAMILY LAW – PROPERTY – Husband overseas – Visa application to attend at defended hearing – Case management issues

APPLICANT: MS ROBINSON

RESPONDENT: MR SHELTER

FILE NUMBER: MLF 2725 of 2006

DATE DELIVERED: 23 JULY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 23 JULY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: CHIODO MADAFFERI

SOLICITOR FOR THE APPLICANT: Ms Yu

COUNSEL FOR THE RESPONDENT: NO APPERANCE

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT the application of the wife filed 15 September 2006 and the further application in a case filed 24 May 2010 be each adjourned for case management and further hearing before Young J on Monday 2 August 2010.

2. THAT the Form 2 application of the wife filed 17 December 2009 be removed from listing on that 2 August 2010 date and otherwise be directed to a return date of 12 August 2010 before Registrar Lethbridge at 10.00 a.m.

3. THAT the wife’s solicitors serve a sealed copy of this order and the extempore reasons for judgment upon the husband personally and upon his immigration lawyers, Erskine Rodan & Associates.

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

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 again listed for mention before me this day.  Ms Yu, Y-u, solicitor, appears for the wife.  There was no appearance by or on behalf of the husband or his adult daughter.  The husband was called out of court, and there was no appearance.  The wife has now changed solicitors, and there is a notice of her previous solicitor, Mr Shenken, now ceasing to act.  A notice of address for service has now been filed by Chiodo, Madafferi, Solicitors, who represent the wife.

2. The matter has a defended hearing date of 2 August, and I will not interfere with that listing, and the intention of the court is that the matter will be heard and determined on a final basis on that day.  The matter was last before me on 9 March of this year, and at that stage, the adult daughter of the husband appeared in court, and leave was granted for her to be heard.  The court was then advised by her that she has permanently retained as solicitors on behalf of her father the Melbourne firm of Kennedy Wisewoulds, solicitors.  I accepted the assurance of the daughter that this firm had and would continue to be retained, and documents for service could be addressed to those solicitors on behalf of both the husband and the adult daughter.

3. I have been updated by Ms Yu from the bar table with information as to the husband’s family sponsored visa application.  The husband had retained the specialist firm, Erskine Rodan & Associates, Immigration Lawyers, to apply for a 679 visa on his behalf.  By letter dated 31 May 2010 from those solicitors, and as provided to the court this day, it is now known that the application was refused by the Department of Immigration and Citizenship.  Notification of that refusal was given on 31 May, that is, yesterday, and those solicitors are now waiting on instructions from the applicant, that is, the daughter of the husband, as to whether an appeal could or should be lodged.  She is the only person able to lodge that appeal, as she is the proposed sponsor for the family visit of her father. 

4. It would seem that 24 hours is insufficient notice for the court to expect any response as to whether an appeal would be lodged.  It is reasonable to allow a period of up to but not more than seven days for appropriate consideration and instructions to be given by that adult daughter to the immigration lawyers.  That is, therefore, one of the primary reasons why I will further adjourn for mention on 8 June 2010 before me all issues in this matter.  On behalf of the wife, Ms Yu gave notice again of the wife’s intent to apply for the matter to be heard on an undefended basis, should the husband not be in the country or not otherwise comply with requirements to file documents with the court.  That matter is likewise adjourned for further hearing and consideration.

5. The court does not know whether reasons were given for the failure to issue a visa, and it would be helpful if that matter can immediately be followed up by the wife’s solicitors with the immigration lawyers, and if there are any reasons, then they need to be wholly disclosed to this court.  The other matter of concern is the future timetable.  Should any appeal be lodged, when would such an appeal be heard?  Would it interfere with the defended hearing listed for 2 August 2010?  All of these matters are both unknown to the court and are not yet the subject of consideration, and all such matters need be further addressed on the adjourned hearing date.

6. On instructions from her client, Ms Yu has indicated that the focus of the wife’s application before the court is to retain the proceeds of moneys now invested in a Westpac term deposit account.  There was $1.325 million, AUD, but from the bar table it was indicated today that there may be a lesser sum.  That matter must be fully and accurately detailed as to quantum and any expenditure of money from that account and interest credited to that account.  The earlier orders of the court provide for evidence to be given by electronic communication, in particular paragraph 6 of the orders of 24 February 2010, and the content of that evidence relevant to the limited way in which the wife may pursue her final defended orders sought are matters to be given further consideration by her new solicitor.

7. I make no further comment upon the husband’s visa application or any prospects of an appeal being lodged or being successful.  The focus of the court must be upon the conclusion of these proceedings in a just and equitable manner.  From documents filed with the court, and aside from moneys invested in Australia in a secure interest-bearing account, there remains the issue of overseas assets and liabilities, which is already the subject of sworn evidence from both parties.  How those assets and/or liabilities are updated, validated, and led in evidence are for the parties to consider and address.  On the present evidence filed before the court, there is competing evidence as to all aspects of the overseas assets, and these need to be valued, explained to the court, and properly understood if they be relevant.  That is one of the challenges for both parties.

8. When the matter was last before the court on 9 March, it was adjourned to this day.  That was known to the adult daughter of the husband, and I am wholly unimpressed by her failure to appear this day or to have her retained solicitors appear on behalf of her father and/or herself.  That explanation will need to be forthcoming at any adjourned hearing.  I concluded my ex tempore reasons on the last occasion by highlighting the urgency of the husband to diligently proceed with his visa application and to be in Australia well prior to the 2 August hearing date.  It may be that he has done that which he can do, and now the issue of the reasons for the rejection of his visa application and/or the appeal process thereafter now need to be explored and explained, and, again, that is the reason for the initial seven-day adjournment, along with the other matters touched upon in these further ex tempore reasons for judgment.

9. The wife’s solicitor has raised the issue of an ANZ subpoena which was filed 8 April 2010 and was returnable on 21 May.  Documents were then not produced to the court.  I am, however, now advised from the bar table that the wife has spoken to a proper officer of the ANZ Bank, and documents are being produced today or tomorrow to the court. 

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: