Sigley and De Santis

[2016] FamCA 184

FAMILY COURT OF AUSTRALIA

SIGLEY & DE SANTIS [2016] FamCA 184

FAMILY LAW – Consent adjournment in the judicial duty list.

APPLICANT: Ms Sigley

RESPONDENT: Mr De Santis

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9296 of 2015

DATE DELIVERED: 2 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Bennett J

HEARING DATE: 2 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Szarbo

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Croxford

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1. The Application in a Case filed by the Applicant Wife on 15 February 2016 be, and is hereby, dismissed.

BY CONSENT IT IS ORDERED THAT:

1. The Respondent, Mr De Santis by himself, his servants or agents be restrained from doing any act or thing, or attempting to do any act or thing, to place himself into bankruptcy or to otherwise seek relief pursuant to the Bankruptcy Act1966 (Cth) unless he gives 21 days notice in writing to the Applicant or her solicitors.

2. Within 14 days of this date, the Respondent comply with paragraphs 1 & 3 of the Orders made 2 December 2015, including the production of documents requested in the letter from the Applicants Solicitors to the Respondents solicitors dated 25 February 2016.

3. The Husband forthwith instruct Messrs B Accountants to promptly provide all documents and/or information requested by Mr C, accountant of Messrs D, in relation to his financial affairs, including but not limited to his interest in E Pty Ltd, the De Santis Family Trust and associated companies and trusts.

4. The parties direct the accountants to provide a joint statement prior to 5 April 2016 as to what is agreed to and what is not agreed to, with a list of documents that remain outstanding.

5. The Application filed 1 October 2015 and the Response to Initiating Application filed 5 November 2015 be listed in the Judicial Duty list before Justice Cronin on 5 April 2016.

6. That the hearing date of 11 March 2016 in the Registrar’s Duty List be vacated.

7. That all questions of the Applicant’s costs of and incidental to her Applications filed 3 February 2016 and 15 February 2016 be reserved.

8. There be liberty to apply on short notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sigley & De Santis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9296 of 2015

Ms Sigley

Applicant

And

Mr De Santis

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me in the judicial duty list with the parties having agreed to certain relief, which they say is appropriate today and purporting to adjourn proceedings to a further duty list on 5 April 2016. 

2. I have made known that the use of the duty list is for applications which require determination by a judge, and matters are not to be listed into that list as a matter of course thereby precluding other matters that do require determination by a judge not being able to be listed.  However, in this case, the practitioners inform me that there is a raft of applications already listed to the judicial duty list on 5 April 2016.  On checking, that appears to be correct.

3. I have asked for some details of the matter and been advised that the applicant wife is in her late forties.  She has one adult child of a relationship.  She is in part-time employment.  The husband is in his fifties.  He suffers from muscular dystrophy, is confined to a wheelchair, and he also has an adult child from another relationship. 

4. In or about October 2013, the parties entered into a binding financial agreement.  The agreement bore a certificate on behalf of the husband by a practitioner in F Town, and Ms G, Solicitor, provided the certificate for the wife.  By applications initiating proceedings and in a case filed on 1 October 2015, the wife sought enforcement of the binding financial agreement, in particular, that the husband pay some or $600,000 or $700,000 in reduction of a mortgage affecting the real property in which she resides, which she estimates has a value of about $1.2 million (gross).  She otherwise has a car.

5. Mr De Santis, as the respondent, filed a response to the application initiating proceedings on 5 November 2015.  In his response, he seeks that the binding financial agreement be set aside or “be declared unenforceable or, alternatively, not binding” and a dismissal of other applications.  Mr Croxford, from the bar table, says that Mr De Santis contends that the binding financial agreement is a sham and a fraud.  It was entered into by his client under duress and by reason of inducements of a sexual and other nature by Ms Sigley to Mr De Santis.

6. Mr De Santis also denies that there ever was a de facto relationship. 

7. A payment is due under the binding financial agreement, and Mr Croxford also puts in issue Mr De Santis’ ability to make good his obligations under the binding financial agreement.  Mr De Santis is an owner of one half of the shares in an entity called E Pty Ltd.  The other one half shareholder of that entity is Mr De Santis’ father.  At one stage, apparently, it was a good business but is no longer operating or is operating under a much reduced capacity.

8. Mr De Santis is also a beneficiary under the De Santis Family Trust, which Mr Croxford believes is a discretionary, rather than unit, trust. 

9. The orders which the parties have asked me to make today are all by consent.  I note that paragraph 3 provides that the husband forthwith instruct his accountant, Ms B, to provide documentation to the wife’s accountant, Mr C of D.  My concern is that when the matter comes back to the duty list, it comes back in a way that it can be productively moved forward or otherwise determined.  It should not be churned.

10. The application is already in the duty list for 5 April 2016 are the wife’s application initiating proceedings filed on 1 October 2015, the wife’s application in a case filed on 1 October 2015 and two further applications in a case filed by Ms Sigley, respectively, on 3 February 2016 and 15 February 2016. 

11. Paragraph 1 of the orders sought by consent, which provides that the respondent be restrained from doing any act, or thing, or attempting to do any act, or thing, to place himself into bankruptcy, or otherwise seek relief pursuant to the Bankruptcy Act, disposes of the wife’s application in a case on 15 February 2016.  I will dismiss the application of 15 February 2016. 

12. The practitioners characterise the orders today as orders in aid of enforcement of a binding financial agreement.  Unless or until the agreement is set aside it can be enforced.

13. It seems to me appropriate that the accountants prepare some memorandum of the exchange of information and any outstanding matters in advance of the hearing in the judicial duty list, and I will make an order to that effect.  It is not opposed by either of the parties. In requiring this memorandum, I am not countenancing anything other than evidence by a single expert witness appropriately put before the court, if need be.  It is Mr De Santis’ case, communicated through Mr Croxford, that by the time the wife’s accountants receive the documents from the husband’s practitioners and accountants and have an ability to peruse them, there will be a consensus that there is no money which Mr De Santis can access to make the payment sought by Ms Sigley on enforcement or otherwise.

14. I make the order sought, by consent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 2 March 2016.

Legal Associate:

Date:  29 March 2016