Talgos & Kester

[2020] FCCA 3047

FEDERAL CIRCUIT COURT OF AUSTRALIA

Talgos & Kester [2020] FCCA 3047

File number(s):	MLC 7690 of 2019
Judgment of:	JUDGE C. E. KIRTON QC
Date of judgment:	19 October 2020
Catchwords:	FAMILY LAW – Practice and procedure – undefended property proceedings – wife’s application for alteration of property interests pursuant to s.79 of the Family Law Act 1975 (Cth) – where the wife seeks leave to proceed on an undefended basis – husband’s non-compliance with orders – where the husband has repeatedly failed to comply with orders to file material – where the husband has failed to provide financial discovery pursuant to consent orders – where the husband has failed to participate in the proceedings in any meaningful way – where no responding trial documents filed by the husband – leave granted to proceed on an undefended basis – final orders made for adjustment of property interests in accordance with orders sought by the wife.
Number of paragraphs:	10
Date of hearing:	19 October 2020
Place:	Melbourne
Counsel for the Applicant:	Ms Bowen
Counsel for the Respondent:	The Respondent appeared in person

ORDERS

MLC 7690 of 2019

BETWEEN:

MS TALGOS

Applicant

AND:

MR KESTER

Respondent

ORDER MADE BY:	JUDGE C. E. KIRTON QC
DATE OF ORDER:	19 OCTOBER 2020

THE COURT ORDERS THAT:

1.The Applicant Wife (Wife) is granted leave to proceed on an undefended basis.

AND THE COURT ORDERS FURTHER, ON A FINAL BASIS, THAT:

2.The Wife retain the net balance of proceeds of sale of the real property known as and situate at B Street, Suburb C in the State of Victoria (Former Matrimonial Home).

3.The Wife retain her Motor Vehicle 1.

4.The Wife retain her interest in her business, “D”.

5.The Respondent Husband (Husband) retain any interest he has in any business entity, including and not limited to “E Group”.

6.The Husband retain his interest in the Town F Property.

7.Each party retain their bank accounts to the exclusion of the other.

8.Within 21 days of the date of these Orders, the Husband pay or cause to be paid to the Wife the sum of $13,850 to be transferred into a bank account nominated by the Wife.

9.Within 28 days of the date of these orders, the Husband shall pay or cause to be paid to the Wife in the sum of $63,000 to be transferred into a bank account nominated by the Wife.   

10.The Husband be liable for and indemnify and forever hold indemnified the Wife against all personal payments and liabilities and all of his business payments liabilities whether past, present or future, whether in his sole name, or business, or jointly with another.

11.The Husband be liable for and indemnify and forever hold indemnified the Wife against all payments and liabilities whether past, present and future in respect of any sum of money owed to the Australia Taxation Office in relation to any business in the Husband’s name or business name, or jointly with another.

12.Within 14 days of the date of the Orders the Husband makes the following items available to the Wife:

(a)Amp;

(b)CD player;

(c)Tall Thin Speakers (2);

(d)Telephone;

(e)Either the K Poster or the L Poster;

(f)Either the Painting “G” or the Painting “H”; and

(g)Dining room table.

With the Husband to confirm in writing within 7 days when he shall deliver the items to the Wife at her home address or some other location as agreed between the parties.

13.Each party retain their respective superannuation entitlements to the exclusion of the other.

14.The Husband meet the Costs Order made in the Federal Circuit Court dated 6 August 2020 for the Wife’s costs of and incidental to the adjourned Final Hearing in the sum of $6,391.

15.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

(b)Each party forego any claims they may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to or earned by the other;

(c)Insurance policies remain the sole property of the named owner;

(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(e)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

AND THE COURT NOTES THAT:

A.Pursuant to section 90ST of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Talgos & Kester is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
Revised from transcript

1. This proceeding was initially filed on 12 July 2019.  The matter first came before the Court on 30 September 2019.  At that time, orders were made by consent.  On the first return date, Ms Bowen of Counsel appeared on behalf of the Applicant Wife (Applicant) and the Respondent Husband (Respondent) appeared in person. 

2. At that time, consent orders were made that the Respondent file a response, an affidavit, and a financial statement within 28 days; and that the Respondent provide pursuant to Order 2, various documents, which are detailed in paragraphs (a) to (k), by way of discovery.  That was to be done within at least three weeks prior to the Conciliation Conference.  Those documents are extremely detailed in what was to be provided.  The Respondent was then to provide, pursuant to Order 3, a full inventory of all the chattels belonging to J Company and E Group, within 28 days of those Orders. 

3. The first Conciliation Conference took place on 15 November 2019.  The Applicant was again represented by Ms Bowen of Counsel.  On that occasion, there was no appearance by the Respondent.  On that occasion, the Registrar ordered the Respondent to pay $2,070.00 in costs thrown away.

4. The next occasion, this matter came before the Court was by way of Final Hearing on 6 August 2020.  On that occasion, both the Applicant and Respondent were self-represented.  The Respondent had still not filed a response, an affidavit, or a financial statement that had been ordered some 11 months earlier.  Orders were made on that day, on 6 August 2020, relisting the matter for Final Hearing today, being the second Final Hearing. 

5. Order 4 of the Orders of 6 August 2020 provided that the Respondent file and serve a response, affidavit, and financial statement within 28 days. Order 5 provided that the Respondent make discovery within 28 days;  Order 6 provided that the Respondent pay the Applicant’s costs of and incidental to the adjourned Final Hearing of 6 August 2020.  Relevantly, for today’s application, Order 7 provided that, in the event the Respondent failed to comply with all of those Orders, the Applicant may have leave to proceed on an undefended basis at the Final Hearing.

6. It was then ordered that the parties and, if represented, their legal representatives, attend a Conciliation Conference with the Registrar of the Federal Circuit Court of the Melbourne Registry on 17 September 2020 at 11.00 am.  There were then further orders in relation to what was to be filed in advance of the Conciliation Conference.  Further orders were made in relation to the filing of trial affidavits.  The parties did attend the Conciliation Conference on 17 September 2020, and I am advised that, immediately prior to the conciliation conference, still the Respondent had not filed a response or an affidavit. 

7. Immediately prior to the conciliation conference, the Respondent did file a financial statement and a Minute of Proposed Orders on 9 October 2020.  I am informed by Counsel for the Applicant that discovery has still been woefully deficient. The Respondent has only filed a superannuation statement dated 16 October 2020, individual tax returns for 2014 to 2017, and three payslips, which is a far cry from the documents that he was ordered to provide by consent in the consent orders that were made on 30 September 2019 in paragraphs 2(a) to (k).

8. This is the second trial date and the Respondent has still not filed an affidavit in support of his application, and the Respondent has still not filed a response.  In the circumstances, I propose to proceed with leave to proceed undefended in accordance with the Orders made on 6 August 2020.  On that last occasion, I was very clear with the Respondent that he had better get his house in order.  He has not done so.  So this matter will be proceeding undefended.

9. After hearing the submissions from Counsel on behalf of the Applicant, I am satisfied that, in circumstances where an order has been made that this proceeding proceed on an undefended basis; where the Respondent has failed to participate in these proceedings and has materially failed to provide discovery in any meaningful manner, the minute of proposed orders and the orders proposed by the Applicant are just and equitable in the circumstances. 

10. I will note that in coming to that conclusion, I have not accepted the evaluation of the Applicant of $200,000 of the chattels, but prefer to take a mean valuation between the two as is filed by the Respondent in such document that he did file, and take an average between the two amounts.  It would leave, as Counsel has suggested, a net pool inclusive of superannuation of $335,925, which is a balance of 57 per cent in the Applicant’s favour and 43 per cent in the Respondent’s favour, which is within the range of a relationship of this nature. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge C. E. Kirton QC.

Associate:

Dated:       17 November 2020