Wei & Wong

[2008] FamCA 788

FAMILY COURT OF AUSTRALIA

WEI & WONG [2008] FamCA 788

FAMILY LAW – PROPERTY – Case management issues – Referral by Registrar to make proposed consent orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Wei

RESPONDENT: Mr Wong

FILE NUMBER: MLC 3853 of 2007

DATE DELIVERED: 17 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 17 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ATKINSON

SOLICITOR FOR THE APPLICANT: WESTMINSTER LAWYERS

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT the further hearing of all extant applications be adjourned to the Judicial Duty List on 22 October 2008 at 10.00 a.m.

2. THAT within seven (7) days the wife make, file and serve an amended application specifying orders sought as to child and parenting and property and financial matters together with a Form 13 statement of financial circumstances.

3. THAT within a period of fourteen (14) days thereafter the husband make, file and serve an amended response together with any affidavits upon which he intends to rely and a Form 13 statement of financial circumstances.

4. THAT within twenty-one (21) days:

   (a)the husband make available or cause to be made available to the wife’s solicitors all of the documents and records identified in paragraph 1(a) – (n), inclusive, of her application in a case filed 11 August 2008;  and

   (b)the wife, through her solicitors, make available to the husband all financial, property, income and like documents that she has within her power, possession and control.

5. THAT the parties are to appoint a single valuation expert at their joint expense to value, as at today’s date, the property at S and the husband in all ways co-operate with access to the home for that purpose.

6. THAT the earlier court files MLF 2704 of 2006 and MLM 5786 of 2004 be consolidated with this current file and be kept together and produced to the court on all further hearings.

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

8. THAT the wife’s costs of this day be reserved and the quantum and any payment thereof be determined by the trial Judge.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED

A.THAT the court arrange a Mandarin speaking court interpreter to be present for the wife on the adjourned hearing date.

IT IS NOTED that publication of this judgment under the pseudonym Wei and Wong is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3853 of 2007

MS WEI

Applicant

And

MR WONG

Respondent

REASONS FOR JUDGMENT

1. The matter of Wei & Wong, file number MLC 3853 of 2007, is before me in the judicial duty list.  Mr Atkinson of counsel appears for the wife, the husband appears in person. The wife is in court and with the assistance of a Mandarin‑speaking interpreter.

2. This matter has been before this court or the Federal Magistrates Court on earlier occasions and the current file needs to be consolidated with earlier files MLF 2704 of 2006 and MLM 5786 of 2004.  I request the Registrar to organise the consolidation of the files and physically to have the files together on any further hearing.

3. The application before me was filed by the wife on 5 April 2007 and final orders were sought as to child and parenting matters and as to property settlement.  The orders then sought on property settlement are wholly inadequate but are understandable given the wife's lack of knowledge of the financial circumstances, income and other commercial aspects of the husband and his business.

4. The facts of the marriage are before the court and to some extent remain in dispute.  There is one child of the marriage, a son, born in December 1999, and he currently lives with the wife and spends time with the husband.  I do not traverse the factual matters of and related to the marriage and separation but in due course they will need to be understood by the court.

5. This matter was in the Federal Magistrates Court but for some reason was transferred by an order of Walters FM to this court.  It is hard to understand any reason of complexity as to why it should have been uplifted and certainly not at the stage of then documentation and disclosure to the court.  Nevertheless I will not return the matter to where it should be heard but that decision may be made by another Judge one day.

6. At some time in or about September 2006 there is an alleged agreement between husband and wife on property matters.  The husband presented to the court today a Form 11 application for consent orders that had been filed in one of the earlier court files, and which is not now before me.  It is difficult to understand the nature of the consent orders, although the accompanying document highlights that whatever the settlement was, it was to be final, and allegedly both parties were to share the cost of education for their son until 18, and the husband's property at S and his other personal assets were to be bound to that liability. 

7. Understandably, when that application for consent orders was presented to the court it was rejected. There is a letter dated 14 September 2006 from Registrar Sikiotis explaining to both parties that consent orders were not made. The application before the court was defective and the reasons why the order was not made were clearly explained in that letter. The matter therefore remains before the court and at some future stage orders must be made pursuant to section 79 of the Family Law Act 1975. The basis of those orders pursuant to subsection (2) of the Act are that they be just and equitable.

8. The financial documents and other affidavits before the court are wholly inadequate.  I am not satisfied that there is a meaningful property application and certainly there is no understandable response or other appropriate financial documents filed by the husband.  I intend to make procedural orders today to at least correct that situation and to require appropriate documents to be filed. 

9. I record that the husband does have a good understanding of the English language.  He has had the opportunity today to speak to the duty lawyer.  I have encouraged the husband hereafter to obtain appropriate legal advice.  That ultimately is a matter for him to decide.

10. The primary asset of this marriage is the property at S.  The property is said to be registered in the husband's sole name and there are some encumbrances against title.  I make no further comments upon the asset pool as it is very difficult to understand from the documents filed.  I observe that the wife last filed a Form 13 financial statement on 5 April 2007. 

11. Subsequently, it would seem that the husband caused to be faxed to the court a Form 13 financial statement which he purportedly swore on 7 June 2007.  That document has seemingly not been filed with the court.  The husband sought to refer to that document again and I propose to grant leave for the document to be filed.  There is no objection from the husband or wife.  It was always intended by him to be before the court and that can be now added to the court index of cases.

12. This matter needs some regularity.  It needs documents to be filed, it needs contributions to be disclosed, valuations obtained and presented to the court in a manner that it can proceed to hearing.  I observe that in the normal procedural dealing with this case it has received a financial conciliation conference on 6 December 2007 with Registrar Sikiotis.  That must have been close to a meaningless conference as there are no proper record of assets or liabilities before the court.  I will at this stage not, however, order a further conference.

13. There are also prior orders of the court made 3 September 2007 by Registrar Field requiring documents to be filed and an exchange of documents and proper disclosure.  None of that has seemingly occurred.

14. With that short background the matter comes before me today by way of the wife's application in a case filed 11 August 2008.  She seeks therein disclosure of financial and other documents as described in paragraph 1(a)-(m), inclusive.  I will make that order today.  I will, however, further order that the wife provide to the husband all financial documents in her possession or control and likewise the onus is now upon the wife's solicitor to make full and proper financial disclosure of any document that meaningfully can add to the financial records in this case or underline her contribution or child-related matters.

15. In support of the application today, the wife has filed an affidavit on 11 August 2008.  Exhibit K to that document is a letter from her solicitor written to the husband's solicitor providing documents.  It may or may not be that they are the only documents in the wife's possession.  I make no finding but I am simply going to provide there to be full and proper disclosure by the wife to her solicitors, so that if there are other documents they are now to be disclosed to the husband.

16. The parties will need to obtain an updated valuation of the S property and also ascertain the extent of mortgage or other liabilities.  I will have both parties file an updated Form 13 statement of financial circumstances in the hope and expectation that they will accurately disclose their current income, assets and liabilities.  I will then adjourn the hearing of this matter for a period of approximately one month and the matter will be made returnable in this judicial duty list on 22 October 2008 at 10.00 a.m.

17. I will have these brief extempore reasons transcribed and placed upon the court file.  For completeness I will ask my court officer to photocopy the application for consent orders, Form 11, filed 13 September 2006, the actual consent order document and the letter of the court dated 14 September 2006.  The letter can be returned to the wife's solicitor, although a copy of the letter can also be provided to the husband and that would likely be helpful in the matter, but copies retained and placed on the court file.

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: