THANNER & THANNER
[2020] FCCA 3161
•20 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THANNER & THANNER | [2020] FCCA 3161 |
| Catchwords: FAMILY LAW – Property – Applicant seeks undefended trial – Applicant seeks summery decision – lack of disclosure – Respondent opposes undefended trial – power to determine a matter undefended or summarily. |
| Legislation: Family Law Act 1975 (Cth), ss.45A, 75 Federal Circuit Court Rules 2001, rr.4.05, 13.07 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Brown & Brown [2004] FamCA 1067 Jacobs & Vale [2008] FMCAfam 641 Kannis & Kannis (2002) 30 Fam LR 83 Lindon v Commonwealth of Australia (No 2) (1996) 70 ALJR 541 |
| Applicant: | MS THANNER |
| Respondent: | MR THANNER |
| File Number: | BRC 9150 of 2018 |
| Judgment of: | Judge Coates |
| Hearing date: | 10 August 2020 |
| Date of Last Submission: | 21 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 20 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Hanlon |
| Solicitors for the Applicant: | Collective Family Law Group |
| Respondent: | Self-represented |
ORDERS
That the Response filed 12 November 2018 by the Respondent, be summarily dismissed.
That the Applicant receive the sum of $20,000 held in the Collective Family Law Group Pty Ltd Trust Account pursuant to Order 29(d)(i) of the Orders dated 19 August 2019.
That each party otherwise retain those assets currently held in their respective name or possession.That the Applicant indemnify the Respondent in respect of any liabilities in her sole name.That the Respondent indemnify the Applicant in respect of any liabilities in his sole name, including but not limited to claims arising from the creditors of the bankrupt estate of the Respondent.That pursuant to s.90XT(1)(b) of the Family Law Act 1975 (Cth):
(a)The Applicant is entitled to be paid the specified percentage out of the Respondent’s interest in the B Superannuation Plan with account number ...53;
(b)The Respondent’s entitlement (or the entitlement of such other person to whom a payment may be made out of the Respondent’s interest) in the B Superannuation Plan, is correspondingly reduced by force of this Order; and
(c)The percentage specified for the purposes of this Order is 100%.
That B Investment Management Ltd as Trustee of the B Superannuation Plan (“the Trustee”) shall do all acts and things and sign all documentation as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Applicant in the immediately preceding clause of this Order; and
(b)Pay the entitlement whenever the Trustee makes a splittable payment from the Respondent’s interest in the B Superannuation Plan.
That this Order has effect from the operative time and the operative time is four (4) business days from the date of service of a sealed copy of this Order upon the Trustee.
That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulation 1994 (“the SIS Regulations”), the Respondent shall do all such things and sign all documents as may be necessary, including but not limited to exercising the Applicant’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Applicant’s choosing in accordance with the SIS Regulation.
That the Court notes:
(a)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)Any payments from the Respondent’s superannuation interest in the B Superannuation Plan made after the Trustee has created a new interest in the Applicant’s name in the B Superannuation Plan are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
That unless otherwise stated in these Orders, the Applicant shall retain the following assets free from any claim of the Respondent:
(a)The Motor Vehicle 1;
(b)Her bank accounts;
(c)Her C business;
(d)Her household contents, personal effects and possessions; and
(e)Any other asset in her name, possession or control as at the date of this Order.
That unless otherwise stated in these Orders, the Respondent shall retain the following assets free from any claim of the Applicant:
(a)The Motor Vehicle 2;
(b)The real property situated at D Street, Suburb E, Northern Territory;
(c)The real property situated at F Street, Suburb G, Queensland;
(d)His bank accounts;
(e)His household contents, personal effects and possessions; and
(f)Any other asset in his name, possession or control as at the date of this Order.
That from the date of this Order the Applicant shall be solely responsible for and shall indemnify and keep indemnified the Respondent in respect of any liabilities in her sole name, including but not limited to tax liabilities, claims or demands.
That from the date of this Order the Respondent shall be solely responsible for and shall indemnify and keep indemnified the Applicant in respect of any liabilities in his sole name, including but not limited to tax liabilities, claims or demands, and including but not limited to claims arising from the following creditors of the bankrupt estate of the Respondent:
(a)H Bank;
(b)J Law Firm;
(c)K Company;
(d)L Company;
(e)Region M Council;
(f)N Company;
(g)O Financial Services;
(h)National Australia Bank;
(i)P Group;
(j)Q Company; and
(k)R Company.
That:
(a)Each party shall do all acts and things, sign all documents and give all consents, including the signing or execution of documents, as are necessary to give effect to the terms of these Orders within 14 days of being requested to do so;
(b)If either party refuses or neglects to sign or execute and return a document within fourteen (14) days of a written request to do so then the Registrar of the Brisbane Registry of the Federal Circuit Court of Australia is hereby appointed under s.106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of the defaulting party upon lodgement of such document and the filing of an Affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal; and
(c)The requesting party be at liberty to apply for costs when submitting such documents and Affidavit to the Registrar.
That:
(a)Orders 6 and 6A of the Orders made 10 December 2018;
(b)Orders 10 to 12 inclusive and 40 to 43 inclusive of the Orders made 19 August 2019; and
(c)Orders 11 to 25 inclusive of the Orders made 9 December 2019,
be discharged.
That all outstanding Applications of the Applicant and of the Respondent be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Thanner & Thanner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 9150 of 2018
| MS THANNER |
Applicant
And
| MR THANNER |
Respondent
REASONS FOR JUDGMENT
The court is asked by the Applicant wife to determine this property matter, filed under the Family Law Act 1975 (“the Act”), on an undefended basis.
The court may exercise such a discretion upon an application of the law, stated in both the Act and the Federal Circuit Court Rules2001 (“the Rules”), to the facts of the matter.
The Act empowers the court pursuant to s.45A of the Act, which states:
“45A Summary decrees
No reasonable prospect of successfully defending proceedings
(1) The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.
Costs
(6) If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.
Action by court on its own initiative or on application
(7) The court may take action under this section on its own initiative or on application by a party to the proceedings.
This section does not limit other powers
(8) This section does not limit any powers that the court has apart from this section.
Note: Part XIB also gives courts powers relating to vexatious proceedings.”
The Rules reflects this power at r.13.07, which states:
“Disposal by summary judgment
(1) This rule applies if, in a proceeding:
(a) in relation to the whole or part of a party’s claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or
(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.
(2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.
(3) If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim.”
The provisions confirm what would otherwise be called an inherent power of the court, exercisable in defined circumstances.
Various cases explain the use of the power.
In Jacobs & Vale [2008] FMCAfam 641, Federal Magistrate Jarrett, when referring to a similarly worded provision applicable to general federal law matters, stated:
“14. The nature of the power conferred by s.17A of the Federal Magistrates Act has been comprehensively considered by Driver FM in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157. In that case his Honour considered the numerous decisions of the Federal Court in which the meaning of the identically worded s.31A of the Federal Court Act were considered. His Honour concluded:
29. I agree with French J that s.17A, like s.31A, has nothing to do with striking out pleadings. The section, and the Court rules which amplify it, deal with summary judgment and summary dismissal. Pleadings may be relevant in order to determine whether a party should receive summary judgment or suffer summary dismissal but the section, and the rules, are not vehicles for dealing with deficient pleadings. That is, if anything, more clear in this Court, which is not a court of pleadings. Further, in considering whether an apparently hopeless case can be saved by amendment, or further evidence, it may be necessary to consider the conduct of the party who would benefit from that indulgence, and the other circumstances of the proceedings, and determine whether that party is entitled to it, or whether the party should be denied that indulgence.
30. Otherwise, in the absence of guidance from the Full Federal Court on the interpretation of s.31A, I will follow the cautious approach of Rares J and Jacobson J. In particular, I agree with and will apply the principles summarised by Jacobson J, in the following slightly amended terms:
· In assessing whether there are reasonable prospects of success on an application or a response, the Court must be cautious not to do an injustice by summary judgment or summary dismissal.
· There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment or summary dismissal is sought to succeed at the final hearing.
· Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
· Unless only one conclusion can be said to be reasonable, the discretion under s.17A cannot be enlivened.
· The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant.”
In Lindon v Commonwealth of Australia (No 2 ) (1996) 70 ALJR 541 the court stated:
“1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided. [General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128f; Dyson v Attorney-General (1911) 1 KB 410 at 418]
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171f per Dawson J; [1994] HCA 65; 118 ALR 385 at 388f] or is advancing a claim that is clearly frivolous or vexatious. [Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91]
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. [Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; 24 ALR 118; Wickstead v Browne (1992) 30 NSWLR 1 at 5-7] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. [Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 409; [1979] HCA 68; 24 ALR 118 at 132] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79] A question has arisen as to whether O 26, r 18 applies to part only of a pleading. [Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8] However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim.
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”
RELATIONSHIP BACKGROUND
The Applicant wife is aged 45.
The Respondent husband is aged 58.
They commenced cohabitation in or around 1999 and were married in 2003.
They separated 23 August 2012 and the divorce orders was made 22 July 2016.
There are two children of the relationship aged 17 and 18, who have lived with the wife since separation and who have spent minimal time with the husband. Both parties were employed at the time the proceeding was filed, the wife earning about $15,000 a year as a tradesperson and the husband just under $300,000 a year as a ‘Manager’, as he described his position, for a primary industry.
COURT HISTORY
On 13 August 2018 the wife filed her Initiating Application.
On 24 September 2018:
a)The wife was given leave to proceed out of time, to occupy the marital property at S Street, Suburb T on the Region M (“the S Street, Suburb T property”) and to retain use of a Motor Vehicle 1, and
b)The husband was ordered to file a Response, meet the mortgage repayments, insurance, rates and water costs for the S Street, Suburb T property, and was restrained from selling, transferring or disposing or further encumbering the S Street, Suburb T property.
When she filed her application in 2018, the alteration of interests the wife sought was imprecise – as she did not then know the structure of the pool.
She sought to retain the S Street, Suburb T property, the Motor Vehicle 1 and that there be a further cash adjustment based on the contributions by each party.
She then listed the pool which she believed existed, being:
a)The S Street, Suburb T property then estimated to be worth $1,100,000;
b)A real property at D Street, Suburb E in the Northern Territory worth $849,00;
c)A unit at F Street, Suburb G worth $650,000;
d)A Motor Vehicle 1 worth $8,000;
e)A Motor Vehicle 2 worth $40,000;
f)Her household contents worth $10,000, and
g)Unknown values of foreign and Australian bank accounts and superannuation in the husband’s name.
She listed liabilities as being:
a)$565,000 owning on the D Street, Suburb E property;
b)$280,000 owing on the S Street, Suburb T property, and
c)$600,000 owing on the F Street, Suburb G property.
Her initial estimate was that there was $1,213,200 net value in the property.
On 14 September 2018 she filed an Amended Initiating Application which maintained the substantive orders with regard to the S Street, Suburb T property and the Motor Vehicle 2. In addition, instead of seeking a cash adjustment, she sought that property interests be altered 60 percent in her favour.
On 24 September 2018, as well as being ordered to file a Response, both parties were given case management orders for disclosure, valuations and mediation. The husband was given 14 days to file and serve his material.
On 12 November 2018 the husband filed his Response, although there is no acceptable excuse of why it was late. The husband stated, in his Financial Statement filed, that he held assets valued at $2,412,000, superannuation of $80,000 and liabilities of $2,111,000.
The husband sought that the S Street, Suburb T property be sold and that the net proceeds of the sale be utilised by him to purchase a home for the two children of the relationship and the wife, but that the children live with him between the sale of the S Street, Suburb T house and the purchase of the new house. The rationale for these orders was not explained in his affidavit of evidence supporting the Response.
Despite the late filing of the Response, the case management orders should have resulted in the orderly progression of the matter to have it resolved by way of negotiation or decision at trial.
However, the matter dragged on, and gives rise to the following considerations as to whether the matter ought to be dealt with on an undefended basis, giving summary judgment.
HUSBAND’S ACTIONS
Given that the court is asked to deal with the matter summarily, it is the state of the husband’s case which is to be considered as to whether the matter can be determined summarily, not the small amount in the pool, which as at 10 August 2020, contained $20,000 held in trust from joint property sale and the husband’s superannuation of about $70,000.
The first relevant issue is the husband’s state of evidence. He has filed six affidavits, on 12 November 2018, 10 December 2018, 9 January 2019, 17 July 2019, 6 August 2019 and 13 January 2020.
None of them carry a schedule of assets and liabilities, although there are statements made as to some of the assets and some liabilities. The affidavits were prepared by the husband’s solicitor, and he makes no complaint that the material contained in them have not followed his instructions.
The court cannot proceed on a trial of issues unless there is a settled statement of assets and liabilities, even if there are disagreements as to the pool, and the assets and liabilities, or knowledge of them, have been in the husband’s control.
I will add that a statement of valuations of property is also essential in most cases – otherwise the parties and the court cannot know values.
The rules of filing material to support an Application or Response require a statement of evidence to support the orders sought (r.4.05 of the Rules).
Even though at early stages of a proceeding not all of the evidence could be stated with precision, as time goes on such evidence can be assembled and stated, yet nearly three years down the track, the husband had not stated what was in the pool at the beginning of the proceeding, even though he accepts that the pool now consists of only a sum of money, about $20,000, and his superannuation of about $70,000.
Various affidavits contain, from the very first one filed, complaints about the wife and her solicitors, allegations the wife may be hiding assets and allegations that she may be engaged in fraudulent behaviour with regard to these proceedings. They are querulous, but without clearly and unequivocally stating the evidence which the husband relies on relevant to the proceeding and the case he presented.
The second relevant issue to be considered is the state of the husband’s material and compliance with management orders.
Directions were given to file and serve material, disclose and obtain valuations early, yet appearances were required on further occasions for case management orders. The file reveals nine appearances, which is too many. That indicates that there was non-compliance with case management directions and orders.
It was the husband’s attitude to the proceedings which required so many appearances. That was because case management orders were not being followed and on perusal of the material, not being followed by the husband.
That was an indication that the husband was not attending diligently to his participation in the proceeding.
The relevant consideration about mention dates is that so many were needed because the husband was not adhering to case management orders, which was unfair to the wife and costing her money for appearances when she complied with case management orders.
A matter cannot proceed without case management – such identifies the actual issues to be determined, manages essential acts such as disclosure and valuations and puts in place the structure for the filing of material.
The husband has been tardy in the filing of material.
His material has also been disjointed and incomplete.
The six affidavits he has filed complain a great deal about the proceedings and the wife and her solicitors, with very little relevant material to allow the court to reach resolution on the conflict.
His affidavit of 10 December 2018 stated:
a)He worked in the Northern Territory;
b)A denial that he was refusing to comply with various consent orders made;
c)A denial of allegations that he was being untruthful in relation to disclosure, claiming that it was the wife who failed to provide disclosure on many of occasions about a bank account which “contains over $50,000”;
d)A claim that the wife continued to refuse to disclose the full name of her de facto husband and the “fruits” of that relationship, and
e)That he had no overseas bank accounts.
The affidavit of 9 January 2019 stated that he was disclosing documents as required by the wife’s solicitors and that the solicitors were “engaged in nothing more than time wasting and costs blow-outs”. He then gave some further disclosure.
The husband always claimed that he was in a perilous financial position, but few details as to how this occurred were given and there was no indication from him that there may be an application by a business partner to intervene, claiming an interest in some of the property subject of the proceedings.
On 19 August 2019 a business associate was given leave to intervene as he was a co-director with the husband in a business which owned two commercial buildings. That isolated matter was determined and is not relevant to this part of the proceeding, other than from the aspect of a lack of disclosure. The husband must have known that such a claim was likely, but did not disclose what steps he was taking in order to resolve the issue.
On 9 December 2019 a second intervener, as trustee for the sale of properties (appointed after the wife sought to sell property), came before the court and the husband was ordered to provide information to him.
On 15 June 2020 the husband’s solicitor withdrew and he became self-represented, but given the material he filed when represented, there was no improvement in the relevancy of material being filed.
On 31 July 2020 I indicated that I may consider dealing with the matter on an undefended basis.
The husband appeared on 10 August 2020, the date I indicated that I may consider dealing with the matter on an undefended basis, but he had filed no further material or sought to file such.
He did object to dealing with the matter summarily.
In fact, his objection was akin to seeking further adjournment.
Adjournments have to be given for the specific reason of furthering a matter for resolution.
As was stated in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 the High Court set a more rigid path with regard to adjournments. At paragraph 5 of his judgment the Chief Justice said, and I will quote:
“5. In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.”
On the state of the husband’s material, I cannot see that an adjournment would improve the situation by giving him better prospects of success.
The third relevant issue to consider is the state of disclosure.
Orders for disclosure, valuations and a mediation were made on four occasions, being;
a)Consent order made 24 September 2018;
b)Consent order made 10 December 2018;
c)Consent order made 19 August 2019, and
d)Consent order made 9 December 2019.
That each subsequent order was made by consent after it was alleged the husband had not complied with his disclosure obligations. The time line discloses the need to continually make orders to manage the matter.
In Kannis & Kannis (2002) 30 Fam LR 83 there was lengthy discussion about the duty to disclose in property proceedings, and the often quoted passage was developed that:
“Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour. This is the course the trial Judge adopted. It was a course clearly open to him and one that does not merit appellate interference.”
It was the claimed lack of disclosure that led the Applicant to file an Application in a Case on 1 April 2019 to be appointed trustee for sale of real properties and other items.
On 19 August 2019 a solicitor, Mr U was appointed as trustee for sale of all real properties held by the husband, being S Street, Suburb T in Queensland, F Street, Suburb G in Queensland, D Street, Suburb E in the Northern Territory and for coins and gold bullion held by the husband.
One of the properties, S Street, Suburb T was sold on 19 December 2019, the remainder of the proceeds being held in trust.
On 3 June 2020 the trustee filed an Application in a Case to be discharged because the remainder of the trust property was not viable, with the F Street, Suburb G property and the D Street, Suburb E property re-vesting in the husband. No evidence has been filed by the husband as to how he came to be in such a financial situation or of actions by the mortgagee since June 2020.
That application was adjourned on 15 June 2020 as the husband advised of bankruptcy proceedings he instigated and the Trustee in Bankruptcy had to be heard.
The Official Trustee in Bankruptcy advised that there was no intention to be heard or make a submission in these proceedings.
And this is where a fundamental failing of the husband’s case lies – he has filed no material and evidence of his bankruptcy or the steps leading to his bankruptcy. As I stated above, even though he sought adjournment to have a trial, there was just no material of relevance with regard to financial issues, essential in these proceedings, being filed by him.
Such would have covered all of the evidence to explain his financial position, how it was that an intervener was involved, why business payments were not being paid and why he entered bankruptcy on 9 June 2020.
On 10 August 2020 the husband orally stated that his Trustee in Bankruptcy advised him that there was no intention of taking any money he received from this proceeding.
That is most certainly a statement which needed to be supported by evidence, because the Trustee has a duty to creditors, who have an interest in any monies coming into the hands of the husband, particularly an amount of $20,000 should the husband receive that.
While the husband is entitled to pursue these proceedings personally, and entitled to pursue a case as he sees fit, he is also required to disclose all evidence in relation to his case, all evidence in relation to marital property, all evidence in relation to his means and all evidence in relation to his bankruptcy, and his statement that the Trustee was not interested in any property received is one made without compliance of obligations to disclose.
Disclosure is not only a duty, but numerous orders have been made to disclose, as stated above, yet the court has been met with his periodic engagement and not much else.
At some stage in proceedings, the court has to make decisions. In Brown & Brown [2004] FamCA 1067, O’Ryan J stated at paragraph 156:
“156. What is very clear from the case law and the provisions of the 2004 Rules is that it is fundamental that the rules of Court and/or procedural orders must be obeyed and the Court should not be reticent about exercising the powers … In my view, it is not necessary that the circumstances be “exceptional”. No litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court’s processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.”
The state of disclosure leaves the wife in an unenviable position of not knowing how the husband has arrived at the financial position which sees an amount of about $20,000 in a trust account and a superannuation holding of about $70,000.
The wife cannot test this at trial because there is no basis stated by the husband for testing his statements.
Although a submission was put that the husband has demonstrated an ongoing inability to accept the wife is entitled to a property adjustment, which seems to be his position from the filing of his Response on 12 November 2018, that is not the measure for summary judgment on an undefended basis.
The measure is whether the husband has demonstrated a willingness and ability to file all that is necessary to determine the issues either in his favour or the wife’s favour.
He simply has not done so, despite the court time and again giving him opportunity.
During the hearing, rather than address financial issues, the husband proceeded to rely on oral and further written submissions where he referred to matters never sworn in evidence.
His written submissions reflect the case described above, including:
a)That the wife should have accepted his offers and then the pool would not have been reduced to its current level;
b)That (at paragraph 29) “The Respondent submits that the conduct of the Applicant and her lawyers were unreasonable, vexatious, and oppressive in dwindling the matrimonial pool. Time and time again the Applicant made false allegations that the Respondent had not complied with disclosure. The Respondent was forced to provide the same materials again and again, the last time being in January 2020 [ Affidavit 13/1/20].”;
c)That had the wife dealt with the matter in a different way, then he would not have been in this position;
d)That (paragraph 32) he had no control over his property since he was forced into bankruptcy, and
e)That the Applicant spent money on legal fees.
At paragraph 44 of his submissions he continues with what I regard as abuse which, had they been made orally, would have been stopped immediately because the court is not the vehicle for abuse to be stated by one party against the other. That paragraph claimed his children had been robbed of their home by the mother and her lawyers profited in fees exceeding $200,000.
The husband goes on to talk about the disgrace for the legal profession to utilise court procedures in bad faith and to seek to blame litigants for delays, that “the legal profession ought not be allowed to get away with such murder” and that he “can only hope that feedback from this case will lead to real change in the way family court proceedings are conducted and allowed to be conducted” and then he alleges that the wife and her lawyers have engaged in fraudulent conduct with the sale of the S Street, Suburb T property and lists what he says are aspects of such fraud.
Alleging fraud has always been a serious issue for courts and common sense policies have been developed over the years which require such allegations to be supported by prima facie evidence so as to prevent abuse of process when allegations can be easily made for reasons not associated with the decision to be determined.
The husband has been represented and he has had access to legal advice capable of informing him of what needed to be done with regard to getting this matter ready for trial, so that he could run the case he said ought to be considered by the court and the court would consider that case. That he was in the Northern Territory and his solicitors in New South Wales was not an excuse to not comply with directions.
What has occurred is that the husband for whatever reason decided to represent himself and has decided to run the case in the manner I am referring to which appears to be full of abuse and assertion without actually putting evidence to the court.
In my view the number of appearances and the orders made time and again for disclosure indicate that the husband will never put before the court relevant material going to contributions, relevant material going to expenditure, relevant material as to what diminished the pool originally worth about $2,412,000 (gross) and relevant material as to the justice and equity of the orders he would seek.
That he has not disclosed very important evidence leading to bankruptcy means nothing can be tested on an informed basis through cross-examination, and the court cannot know just what he may own.
On that basis, the husband has no reasonable prospect of success.
The wife has given her evidence as to contributions.
The wife was born in 1974 and appears to be in good health.
The husband was born in 1962 and appears to be in good health.
When I say they appear to be in good health – that is from the original materials which both parties filed.
The evidence of the wife is that she made most of the contributions in raising the two children of the relationship, Ms V born in 2001 and X born in 2003, although she did recognise that the husband contributed as well.
The wife said since separation the children spent very little time with their father.
Despite claims of child support being paid or not being paid, the fact is that raising those children was a major contribution and very costly for the wife.
The wife states that she had no assets at the time the relationship began and the husband had two units with mortgages attached to them.
The parties met in Country Y and moved to Darwin and purchased a property at D Street, Suburb E in the husband’s name and they lived there for two and half years before moving to the Region M.
The parties acquired the S Street, Suburb T property since 2008.
The husband was a fly-in/fly-out worker and was employed overseas in places like Country Z and Country AA, although he has given no particulars of wages over the period and over the relevant period that this matter has been before the court.
The wife was unable to undertake a great deal of employment because she was looking after the children with the husband away for much of the time.
The wife said she was not involved in the financial side of the relationship and the husband would not provide her with information and that can be understood because of the significant orders made time after time requiring him to disclose material.
While the husband paid the mortgage, rates and power bills for the children at the S Street, Suburb T property, the wife said that at one stage he complained the telephones the children owned were too expensive for him and the children were not communicating with him.
She said the husband relocated in mid 2017 to Darwin and prior to that he had provided financial assistance to the children, however that was significantly reduced upon him moving and he then only provided limited assistance.
She said her future needs are the care and control of the children although they are obviously getting older and her business at the time of filing her affidavit in 2018 was only earning $15,000 a year or $280 a week.
The husband’s material simply did not give a great deal about his contributions and again that is of concern because of the cost and complaints about disclosure.
The husband’s relevant material stated he made all the financial contributions, which included payments for housing the wife – as well as the children.
After separation, the wife allowed the husband to stay for periods at the house so he could have time with the children, but when he relocated to Darwin time decreased.
The wife says separation was amicable at first, but the relations deteriorated.
If those were the explanations of contributions given by the parties, a decision could be made reducing contributions to a percentage figure, however, the husband’s material is quite abusive, to the effect that the wife would not work and to the effect that she had a lot more property than she made out, including access to valuable property. There is no independent evidence of this.
There is little evidence about the needs of the parties pursuant to considerations stated in s.75(2) of the Act, but the husband says he is now unemployed, but without any evidence of his prospects.
As to superannuation, the husband states he earned the superannuation, but that was while the wife looked after the children.
In my view, the alleged secretiveness of the husband as to finances extended to the manner in which he failed to make disclosures in this matter, particularly about his decision to put himself into bankruptcy.
Despite some disclosure, in my view his lack of total disclosure is to be treated as a significant factor, as should the abuse he has directed towards the wife in such claims that she and her solicitors engaged in fraud and extravagant expenditure.
The husband has not given the wife or the court explanation for the small amount of money left in the pool, and although orders are not easily made by way of summary judgment when there has been some material filed, the husband’s case, in terms of both s.45A of the Act and r.13.07 of the Rules, shows no reasonable prospect of success based on his filed material and non-compliance with orders. On that basis, it is just and equitable to alter the interests in property and superannuation in the wife’s favour, so that she takes what is left in the trust account and a splitting order for 100 percent of the superannuation fund.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 20 November 2020
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