Spence and Spence

[2007] FamCA 867

FAMILY COURT OF AUSTRALIA

SPENCE & SPENCE [2007] FamCA 867

FAMILY LAW – PROCEDURAL – Applicant wife seeks leave to file Amended Application for Final Orders at the commencement of a review hearing – Wife unrepresented - Document received in the interests of justice – No trial affidavit filed by wife – Wife seeks inappropriate orders for spousal maintenance
FAMILY LAW – PROCEDURAL – Application by wife to adjourn hearing to seek further documents from superannuation trust as a result of that trust changing its company name – Application dismissed
FAMILY LAW – PROCEDURAL – Respondent husband seeks review of Judicial Registrar’s orders made by consent of both parties – Husband agreed to forego items of personalty to the wife – Husband says agreement was under duress – Husband changed his mind and wants the items returned – Dispute over value of items - Application opposed by wife

APPLICANT: Ms Spence

RESPONDENT: Mr Spence

FILE NUMBER: ADF 3013 of 1999

DATE DELIVERED: 23 July 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That paragraph 1 of the Amended Form 2 Application filed by the wife on 23 July 2007 in so far as it relates to an order for spousal maintenance be dismissed.

2. That paragraphs 8, 11 & 13 of the Amended Form 2 Application filed by the wife on 23 July 2007 be dismissed.

3. That the Application in a Case filed by the wife on 19 July 2007 be dismissed and removed from the active pending cases list.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Spence & Spence.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3013 of 1999

MS SPENCE

Applicant

And

MR SPENCE

Respondent

EX TEMPORE REASONS

1. This matter commenced before me today for hearing.  It is a matter where both parties have filed applications to review exercises of power by the Judicial Registrar.

2. There have been orders made for both parties, but more particularly the wife, to file any further documents that she intends to rely on for the purposes of the hearing of her application for review and there have been orders extending the time for those documents to be filed.

3. The last such order was indeed made by me on 6 July 2007 and I ordered that the time for the wife to file and serve an outline of case document, including summary of argument and list of documents, a Rule 15 Trial Affidavit and any valuations on which she intends to rely, pursuant to paragraph 1 of the order made by Bell J on 8 May 2007, be extended to 4:00pm on Wednesday, 18 July 2007.

4. The wife did not comply with that order, but today she has referred to a list of documents, which was filed on 20 July 2007.  I have indicated to the wife that that is not the list of documents which was the subject of the order.  The wife has simply listed all documents that have been filed in this court, including subpoenas and applications, and there is even reference to orders made, reasons for judgment and the like, and notices of appeal.  In any event, that is the wife’s list of documents and I do not propose to say anything more about that.  If necessary, during the course of the hearing I will refer to that, or the wife or the husband will refer me to it.  I am not concerned about that being two days out of time. 

5. The wife, though, has handed up today an outline of case document.  She says that she was not able to comply with my order of 6 July 2007 because she has been ill.  I am prepared to receive that case outline document because I need it for the purposes of understanding what this case is about and what, in particular, the wife is wanting from this court.

6. The other document the wife has handed up today is an application for final orders in which she sets out the orders that she now seeks.  I will not dwell on what I have already said to the wife about the form of this document but, at the end of the day, she has indicated that this is in effect her amended application for final orders and these are the orders that she wants from this court on her applications for review.

7. I note that this particular document was not the subject of my order of 6 July 2007, nor was it the subject of the order made by Bell J on 8 May 2007, but I do have a recollection, without specifically referring to it, that - and as one would expect - not very long after the applications for review were filed, orders were made by at least a Registrar of this court, and may even be by Dawe J who has had some involvement in this matter, for the wife to file a document setting out the orders that she sought.  She did do that I think but now, out of the blue, she hands up an amended document today without any leave being granted.

8. Again, I will not repeat what I have said to the wife about the inappropriateness of that occurring at this time and how, strictly, it is within my discretion to not receive this document.  However, in the interests of getting on with this matter, I am prepared to receive it.

9. I note that there is no trial affidavit that the wife has filed, and I have indicated to her that the consequence of that is that she is not able to present any further evidence-in-chief in this case beyond what is already before the court by way of affidavit material, either being affidavit material relied upon by her for the trial before Forbes JR or any affidavit filed by her subsequent to her applications for review.

10. I have indicated to the wife that I will allow her to tender any relevant documents that have been produced pursuant to any of the subpoenas that she has issued and that she was specifically given leave to issue this year.  In relation to that I have already received and marked as exhibits certain documentation from Zurich as to the husband's superannuation entitlement.

11. I note that the wife did not include in the document handed up today any of the orders that she seeks in relation to her review of the exercise of power by the Judicial Registrar, which culminated in his order of 27 October 2006.  I have had to waste this court's time and everybody else's time to take the wife to that order and attempt to identify what it is that she complains about, what it is that she is reviewing and what orders that she now seeks.

12. Just so everyone is clear about it, the end result of that discussion with the wife is that, in relation to her review of the exercise of power culminating in the orders made by the Judicial Registrar on 27 October 2006, she seeks in lieu of paragraph 1 an order that she pay one half of the account of Mr B; namely, the sum of $436.00 and that she pay one half of the account of Mr R, being $699.00.  In relation to paragraph 2 she seeks that there be no order made that she pay any moneys to the husband.  She does not seek to review paragraph 3 because that is a consequential order; it provides merely for the time to pay.  Significantly, she does not seek to review paragraph 4 of the order, whereby the Judicial Registrar ordered that each party otherwise pay their own costs.  In relation to paragraphs 5, 6 and 7, they are orders made by the Judicial Registrar whereby he dismissed Form 2 applications filed respectively by the husband and the wife.  The wife has indicated that she does not seek to review the Judicial Registrar's dismissal of any of those applications as long as that still allows for a review to take place of the exercise of power by the Judicial Registrar in relation to the amounts that she is ordered to pay to Mr B, Mr R and to the husband.

13. I next took the wife to her application for final orders, which sets out the orders that she seeks.  It is quite apparent that some of those orders are not orders that can be made.  Firstly, in relation to the issue of spousal maintenance, she has maintained seeking an order in the following terms in paragraph 1:

    “That in full and final settlement of all claims for property settlement and spousal maintenance the husband do pay the wife 65 per cent of the net assets.”

14. Separate to that, though, the wife is also seeking orders in paragraphs 6 and 7 that the husband pay spousal maintenance in the sum of $150.00 per week from 1998 to currently, and for a further two years.

15. I have indicated to the wife that paragraph 1 is not an application that she can make; that is, it was quite clearly adverted to by the Judicial Registrar in his reasons for judgment and also subsequently, when the wife attempted to resurrect the issue of spousal maintenance.  On that basis she has now indicated that the orders that she seeks by way of spousal maintenance are those contained in paragraphs 6 and 7 of the application.  Thus I dismiss that part of paragraph 1 of the orders sought by the wife in her application filed today, whereby she seeks an order for spousal maintenance.

16. In relation to paragraph 8 the wife seeks an order that the restraint order dated 27 July 2000 remain on the daughter for her protection.  It seems she included this because she understood that the husband was pursuing an application to discharge that order.  However, as it turns out, on 2 March 2006, during the course of the trial before the Judicial Registrar, the application by the husband in relation to that order was dismissed.  The wife has not sought to review that exercise of power by the Judicial Registrar, therefore there is nothing before this court in relation to that matter.  I dismiss paragraph 8 on that basis.

17. Next, I turn to paragraph 10 and I will say this about it at this stage.  That seeks an order that the husband be restrained from verbally abusing the wife and through a third party.  That was not an order sought before the Judicial Registrar and the wife confirms that and says it is something that has arisen since.  I have indicated to her that I am not prepared to receive that application unless she can point to me where, in any affidavit filed by her, there is a factual basis for seeking such an order.  The wife will be looking at that during the luncheon adjournment.  If she cannot identify any factual material in an affidavit that is properly before the court then I propose to dismiss that application.

18. Next is paragraph 11.  There the wife seeks an order that the judgment in relation to Ms F be set aside as the counterclaim for negligence in the Magistrates Court is pending a hearing.  Mr Holland, who appears for Ms F today, has indicated to me that, in the last two or three weeks, the proceedings in the Magistrates Court were dismissed as the wife failed to attend.  On that basis the only matter relating to Ms F in this court at least, is Ms F seeking orders for the payment of costs that have previously been assessed.  There is no basis any more, even if there was at some time previously, for the orders as sought by the wife.  Thus I dismiss paragraph 11 of this application.

19. Finally, there is paragraph 13, which reads:

    “That the husband do indemnify the wife, and keep her forever indemnified, with respect to all related property settlement, spousal maintenance and children's matters.”

20. I do not understand that application.  The wife has not been able to explain it to me.  I am not going to allow such an application to delay the finalisation of this matter.  It makes no sense and I dismiss it.

21. On 19 July 2007 the wife filed an application seeking to adjourn these proceedings and she filed a supporting affidavit.  What apparently has happened is that Zurich, which previously held the fund in which the husband had his superannuation interest, has been taken over by another entity called Spectrum Super.  The wife issued a subpoena against Zurich seeking the same documents from Zurich that she has previously sought in earlier subpoenas, obviously, though, seeking updated information about the husband's superannuation interest in Zurich.  That subpoena was responded to by Zurich. 

22. The wife says there are documents that Zurich has not produced.  She wants this trial adjourned until Spectrum Super has completed transferring all the data and established its records so that Spectrum Super can respond, specifically, to the subpoena that she has issued to Zurich.

23. I have indicated to her that I am not prepared to adjourn this matter for that purpose.  The wife has been pursuing this with Zurich for some time now, and Zurich has answered the subpoena.  There is no application by her for leave to issue a subpoena against any officer of Zurich or of Spectrum Super to be questioned as to how they have responded to this subpoena or the subpoenas in the past and there is no evidence before me to indicate that a simple transfer of data from one entity to another would result in the production of further documents in relation to the husband's superannuation. 

24. For those reasons, I propose to dismiss the wife’s application.  I also note that this matter commenced in this court in 1999 and there have been innumerable hearings, judgments and orders, there was a 14 day trial before the Judicial Registrar on the issue of property settlement and the wife now seeks to review that, and we are embarking now on yet another exercise in trying to finalise this matter.  Enough is enough.

25. Recently, when the wife has been before me, I made it quite clear to her that I would be commencing this trial, come hell or high water, on 23 July 2007, namely today.  Nothing has changed.  There is no evidence before me to indicate that there is any reason to adjourn these proceedings.  I earlier put to the wife that I may consider an adjournment of the proceedings if the only issue that she wants to pursue on the application for review is to see whether there should be a different figure substituted for the figure used by the Judicial Registrar in his reasons for judgment delivered last year, or, put another way, if there was no issue about any other findings, factual or otherwise, no issue about how the Judicial Registrar dealt with the law; the only issue being what is the correct amount - if there is an incorrect amount - for the Zurich superannuation.  The wife was not prepared to limit her case to that.  Therefore, to repeat, I am not prepared to adjourn this case to await Spectrum Super being in a position to access the same records which Zurich have had and have used in providing their response to previous subpoenas issued by the wife.

26. In paragraph 4 of the wife’s application she seeks a further order in relation to documents from A.  A is an entity that the wife subpoenaed, pursuant to leave, on 23 April 2007.  They responded to that subpoena and the documents were received by this court on 3 May 2007.  The wife says that the documents are incomplete or they are inconsistent.  I have attempted to establish with her precisely the difficulty that she says exists in relation to these documents.  That exercise has been wholly unsuccessful.  I still have no idea what she is referring to in terms of A allegedly not producing all the documents that they can.

27. The affidavit that she filed in support of this application does not help me either.  However, it is apparent, upon looking at the documents produced by A, that in one respect they did not supply the complete information; I am not referring to any information sought by the wife in the subpoena.  In the covering letter from A they say they have enclosed what is described as salary benefit schedule for period 2000 to 2004.  In fact they have not done that; they have supplied the salary benefits schedule for 1999, 2000 and 2002, so there is 2001, 2003 and 2004.

28. Fortuitously though, the wife filed an affidavit on 28 April 2005 to which she annexed the same documents that A have now produced.  Included in those documents is the 2001 schedule.  Unfortunately, though, there is not the 2003 and 2004 schedule.  To that extent I am concerned that A have not indeed provided the documents which they say in their covering letter they have.

29. The wife now says it is relevant to have those further documents but I still do not understand why.  I am not prepared to delay these proceedings whilst they are chased up.  She suggests that the husband has those benefit schedules in documents that he has available to him and I have requested him to make an attempt to find those documents.

30. A simple way of dealing with this would have been for the wife to telephone the author of the letter and indicate that omission, and presumably A would have then responded appropriately.  However, she has done nothing about this until now.  The documents were received by this court, as I say, at the end of April, early May 2007.  It is only now that she makes any application about this, and, as with the other matter, I am simply not prepared to delay these proceedings to await documents, which may or may not have any relevance to the proceedings at all.  If it was so important to her, she could have (a) contacted A, pointed out the omission and sorted it out that way, or (b) brought an application in this court well before 19 July 2007.

31. At this stage I am not going to do anything more with the application of 19 July 2007.  I have said that I am not prepared to adjourn the case or make any further order against either A or Zurich or anybody else for that matter, and the case simply has to proceed.  Whether there is a need to revisit the topic of this application as the case progresses remains to be seen. 

32. I next refer to the application for review filed by the husband.  That is an application that he filed on 27 October 2006, wherein he sought to review the exercise of power by the Judicial Registrar where the Judicial Registrar in effect accepted the husband’s indication that the husband was not proceeding to seek certain items of personalty.

33. The history in relation to this matter is somewhat confused, but it seems from the documents that what happened was that in his reasons for judgment Forbes JR determined that the husband could obtain certain items of personalty from the former matrimonial home.  Those items were included in a list of documents, which is Annexure A to his Honour's reasons for judgment of 22 September 2006.

34. His Honour proposed to make specific orders about that and those orders are set out in paragraphs 4 and 5, of the orders contained in his Honour's judgment delivered on 22 September 2006.

35. His Honour adjourned the matter generally to 13 October 2006 when he was intending to dispose of all matters and make the final orders after the parties had the opportunity to address him on questions of costs and the like, and various other matters which I do not need to deal with just at the moment.

36. On 13 October 2006 an issue arose about the items of personalty that the husband was seeking.  Indeed, what was pointed out to the Judicial Registrar was that the husband was in fact seeking more items than the Judicial Registrar had included in his Attachment A to his reasons for judgment.  Apparently the husband's application was set out in paragraph 2 of his Amended Form 3 Application which was before the court.  It seems that there were another 20‑odd items that had been valued and included in a valuation which was an exhibit before the Judicial Registrar; namely, Exhibit W35.

37. The value of the extra items - if I can call them that for the moment - was $4,785.00.  The husband's position on 13 October 2006 was that he wanted to have not only the items in Annexure A but also the other items identified in the valuation. 

38. The Judicial Registrar directed the parties to confer with a Registrar of this court to see if they could sort out that particular issue.  That occurred and the matter came back before his Honour.  I do not have a transcript of what was said but, according to his Honour's reasons delivered on 13 October 2006 his Honour appears to have taken the position that the husband was no longer proceeding with his application to have any of the items of personalty, and not even those items identified in paragraph 107 of his reasons for judgment and set out in Annexure A.

1. On that basis his Honour indicated that he did not need to consider that matter any further and his Honour then proceeded to make final orders, not including orders 4 and 5 which had been originally proposed.

2. To repeat, the husband filed an application on 27 October 2006 seeking to review that exercise of power.  I indicated to the husband earlier today that in my view it was arguable that his application was improperly brought before the court.  What is able to be reviewed is an exercise of power by the Judicial Registrar and it is arguable that the Registrar did not exercise any power in relation to this matter. 

3. What happened was that the husband made an application to have these items of personalty.  His Honour duly considered that application and reached a view about it, but then, before he pronounced his orders, the husband indicated he was not proceeding with the application.  Therefore all that the Judicial Registrar did was to make no order about these matters.  To repeat there is an argument - a strong argument in my view - that that is not an exercise of power by the Judicial Registrar and thus it is not reviewable.  Unfortunately though I am not assisted in this by either party, both of whom are in person and cannot be expected to address the law in relation to this issue.

4. If my preliminary view is right then there is still an option for the husband, given that the entire exercise of power by the Judicial Registrar in making the final orders for property settlement and the like is the subject of review by the wife, and that is opposed by the husband.  He can simply commence a fresh application seeking, as part of the finalisation of the property settlement matter those particular items given that the application for review filed by the wife results in a hearing do novo. 

5. To enable this matter to proceed, I invited the husband to indicate whether he wanted the time to file a formal application about this or whether he wanted to make an oral application, which would then allow the matter to be dealt with as part of the review hearing which I have attempted to embark upon today.  The husband said he would like to have the matter resolved with all other matters and if necessary he was prepared to make an oral application.

6. He has now identified the items of personalty that he seeks and they are the items set out in Attachment A to the Judicial Registrar's reasons delivered on 22 September 2006 and some of, but not all of, the items in the separate list from the valuation.

7. The wife has opposed the husband making an oral application if one is necessary.  In my view her opposition is specious and I am prepared to let the husband make an oral application if that is necessary.  Indeed I will still consider, as this matter progresses, whether the husband even needs to make that oral application and I am only taking that course because this matter simply cannot be delayed any further. 

8. My current position is that if I decide, ultimately, that the husband's application for review in this regard is not properly before the court then, at the very least, there will be an oral application which I can proceed on and determine this matter.  As I say, my current inclination is that the application for review is not properly before the court and thus we do need to go to an alternative application by the husband.

9. I propose to allow that matter to be before me and if necessary I receive an oral application from the husband wherein he seeks an order that he be permitted to attend at the former matrimonial home and obtain these items of personalty in return for payment by him to the wife of $2,965.00, being what was, at least before the Judicial Registrar, an agreed valuation for the items in Annexure A.  In relation to the items from the list in the valuation the husband would pay to the wife the value of each item which he is seeking to obtain.

10. I have no qualms about allowing that to proceed on that basis.  The wife knows full well what the husband is seeking and why.  There is no element of surprise or need for the wife to consider her response and deal with it in any other way than she intended to deal with it if the application for review was properly before the court.

11. The further items that the husband seeks, in addition to those items in Annexure A, are a Mazda 13B turbo motor and gearbox with computer, valued at $100.00; a Mazda 10A rotary original motor for RX3, valued at $50.00; a Mazda RX7 dismantled, with spares, partially painted, valued at $500.00; a Mazda 12A rotary motor and gearbox to suit RX7, valued at $150.00; two trolley sack trucks valued at $10.00; one Suzuki trail motorbike valued at $200.00; a quantity of wood, metal fixing, accessories, nails, bolts and screws valued at $50.00; a quantity of electronic components, capacitors, transistors, resistors, valued at $50.00; a quantity of electrical switches, plugs, multi-meters, bearings, fittings, et cetera, valued at $5.00; and one timber boat with 25 horsepower Evinrude motor with accessories, valued at $350.00.

I certify that the preceding
49 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 23^rd day of July 2007.

……………………………………….
Associate