Batstone and Batstone

[2012] FamCA 169

FAMILY COURT OF AUSTRALIA

BATSTONE & BATSTONE [2012] FamCA 169

FAMILY LAW – PROPERTY – Partial property settlement

Family Law Act 1975 (Cth)

APPLICANT: Ms Batstone

RESPONDENT: Mr Batstone

FILE NUMBER: TVC 1309 of 2011

DATE DELIVERED: 6 February 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Murphy J

HEARING DATE: 6 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows

SOLICITOR FOR THE APPLICANT: Boulton Cleary & Kern

SOLICITOR FOR THE RESPONDENT: Mr Bowrey of Wilson Ryan & Grose

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

1. That within (28) days of the date of these Orders, the husband provide to the wife’s solicitors, the following documents if not already provided: -

   1.1A summary of all of the property (not limited to Real Estate) in which the Husband and/or the Wife have an ownership interest, either in their personal names, jointly together, jointly with other persons or via any company/trust or other entity.  This summary should include a description of each item of property; the ownership details; when the property was purchased and the purchase price; how the purchase was funded; the present value (at least the Husband’s estimate) of each item of property and the amount presently secured and/owing with respect to each item of property

   1.2The names and full details of any company, partnership, business, trust or other entity in which the husband or the wife have or have had an interest during the last (5) years (even if only as a beneficiary under a trust and whether in their own right or with any other person or entity), including: -

   (a)The name of each entity;

   (b)The ACN and ABN, if applicable;

   (c)The interest held, e.g. Director, Secretary, Beneficiary, Shareholder etc;

   (d)The assets (including property, cash and shares) owned by each entity including an estimate of their present values;

   (e)Copies of the Tax Returns and Tax Assessments for each entity for the last (5) financial years and up to date Financial Statements;

   (f)Copies of the Profit and Loss, Balance Sheet and cash flow statements for each entity for the last (5) years; and

   (g)Copies of the Trust Binders for any Trusts including the Minutes of Meetings and a copy of each of the Trust Deeds. 

   1.3Full details of all bank accounts, building society accounts or other financial investment accounts in which the husband and/or the wife have or have had an interest during the past (3) financial years, either solely or jointly with any other person or entity and copies of the bank statements for each account for the past (3) financial years.

   1.4Full details of any Trust (including provision of a copy of the Trust Deed or Deeds and any subsequent variations made to that Trust Deed) in which either of the Husband or Wife have an interest including the assets owned by the Trust and the estimate value of those assets and the Financial Statements for the last three financial years.

   1.5Copies of the Income Tax Returns and Tax Returns for the husband and the wife personal for the last (5) financial years and, should the Income Tax Return for the year ending June 2011 not yet be complete, details of the husband’s income, remuneration, drawings and other benefits received during that financial year.

   1.6Full details of any superannuation fund entitlements in which the husband has an interest including the account statements for each fund for the past (3) years; the completed superannuation information forms and, if a self-managed superannuation fund, the Trust Deed and the Financial Statements for the last (3) years.  Include with this is to be all information in relation to the Batstone Superannuation Fund.

   1.7Full details of all and any shares held by the husband and the wife, either solely or with any other person or entity, as at separation in January 2011 and at the present time and provide copies of the present Share Certificates or appropriate Share Portfolio Summaries.

   1.8Copies of any Partnership Agreements entered into between the husband and any other person, including Mr C and relevant to the husband’s current business interests.

   1.9Full details of any other loans or liabilities (including credit card accounts), not already dealt with in paragraph 1.1 above, that are owing by the Husband and/or the Wife or any of the company, trusts or other entities, in which the Husband or Wife have an interest. 

   1.10Copies of any personal insurance policies including life insurance and income protection polices, relevant to the husband and/or the wife.

   1.11Copies of any valuation reports or other valuation evidence of any of the property in which the husband and/or the wife have an interest, including real estate property and business, company, and trust interests.

   1.12With respect to any property or company interests purchased or sold during the last three years, the Husband provide copies of the purchase or sale contracts. This is to include information in relation to buying out Mr H from the partnerships which they held together.

   1.13Full details of the purchase by the husband in 2011, of Lots 7, 8, 9 and 10 on RP… (Address: … M Street, Town W, …), including: -

   (a)The sale price and provision of a copy of the contract for sale;

   (b)The settlement date for the sale and a copy of the sale settlement sheet;

   (c)Full details of all any loan taken to pay for the purchase.

   1.14All and any documents containing evidence regarding: -

   (a)The financial matters mentioned in the parties Financial Statements (Form 13);

   (b)The financial contributions made at the commencement of cohabitation;

   (c)Any inheritances, gifts or compensation payments received during the period of cohabitation;

   (d)Any purchases or disposals of property since separation; and

   (e)Any increase or reduction of liabilities since separation.

2. That within a further (28) days of full disclosure occurring in accordance with paragraph 1 above, both parties exchange correspondence in an attempt to agree upon the value of all of the matrimonial property.

3. In the event that the parties cannot reach an agreement as to the value of any items of matrimonial property: -

   3.1The wife provide the husband with a list of (3) proposed valuers to value any of the real estate in dispute and a list of (3) proposed valuers to value the business, company and trust interests of the parties; and

   3.2The husband choose (1) of the wife’s proposed valuers from each list within a further (3) business days;

   3.3That in appointing the joint experts in accordance with the above sub-paragraphs, the parties undertake the following process within the times stipulated by reference to the date of these Orders: -

   (a)The wife prepare and provide the husband with draft letters of engagement addressed to the chosen experts within a further (5) business days;

   (b)The husband be at liberty to amend the draft letters of engagement and return the amended draft letters to the wife within a further (3) business days; and

   (c)The parties finalise and co-sign the letters of engagement within a further (3) business days.

4. That subject to the wife receiving the interim property order pursuant to paragraph 6, the husband and wife share equally in the costs of each of the joint experts appointed in accordance with the above paragraphs.

5. That the husband and wife fully co-operate and comply with any reasonable request made by the valuers from time to time.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. The remaining half of the proceeds be held in the solicitors trust account pending further application as the husband might make and further order of the Court resulting there from.

2. The wife be paid from the net proceeds of sale of the former matrimonial home the sum of $600,000.00.

3. The classification of the amount so received, that is to say whether it represents a partial property settlement and or spousal maintenance and or a prepayment of any costs be a matter left to be determined by the trial Judge.

4. In respect of that sum, the wife file and serve at the same time of filing any affidavit of evidence in chief in respect to any future trial document setting out the expenditure made by her from the sums so paid by reference to the date that each amount was paid, the amount of each payment, the purposes of each payment and supporting documents of each of those payments.

5. The husband have liberty to apply to make such further application as he might consider as appropriate and or be advised in respect of the balance of net proceeds of the former matrimonial home.

6. The proceeds be held in the trust account of the solicitor for the wife pending further order of this Court.

7. The proceeds to be held in trust by the solicitor for the wife pursuant to these orders be invested in such manner as the solicitor for the wife and the solicitor for the husband shall agree and failing agreement as made be ordered by the Court.

8. Costs be reserved. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Batstone & Batstone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 1309 of 2011

Ms Batstone

Applicant

And

Mr Batstone

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an application filed on 6 December 2011, the wife seeks orders for settlement of property, pursuant to section 79 of the Act, in respect of the breakdown of the 27-year-old relationship with the husband. 

2. In that application, final orders are sought that the property of the parties and their superannuation interests be divided in the proportion 70 per cent to the wife and 30 per cent to the husband.

3. A number of interim orders are also sought by the wife.  They fall into two broad categories, the first described in the application as financial disclosure;  the second falling under the heading Interim Property Order. 

4. The initiating application filed by the wife was amended by an amended application, filed 2 February 2012. 

5. The orders for financial disclosure are effectively not opposed by the husband, save that he seeks a period of 28 days so as to comply with those orders. 

6. On any view of it, whatever might be the other contentions and counter-contentions of each of the parties, the property of the parties, or either of them, within the meaning of section 79 of the Act involves the interrelationship of a number of corporate and trust entities which is likely, in my view, to involve disclosure being a matter of some complexity.

7. It seems to me appropriate that the husband be afforded 28 days in which to make disclosure. 

8. I note in that respect that, during the course of oral submissions this morning, Mr Bowrey, who appears as the solicitor for the husband this morning, indicates that his client had been to see his accountants today, and there exists the possibility of disclosure being made by the provision of a CD disc, or some such, incorporating the financial information sought in that application.

9. The second part of the application, seeking an “interim property order”, has the wife seeking the whole of the net proceeds of sale of the former matrimonial home, which is in her sole name.  The net proceeds are anticipated to exceed $1.3 million. 

10. In respect of that part of the application, Mr Bowrey seeks an adjournment on behalf of his client.  The basis of the adjournment is that, by reference to the chronology of events outlined by Mr Bowrey, the husband has not had the opportunity to properly instruct Mr Bowrey in respect of documents formally served upon him on 13 January 2012.

11. The husband says that at that time he was on holidays, and as a result of that fact and Mr Bowrey’s other commitments, Mr Bowrey was unable to see him until about 5.00pm last Friday afternoon. 

12. Of more moment, as it seems to me, is that the return date of the wife’s application was initially 28 February, that is, in about three weeks time.  As a result of the desire to provide far North Queensland with judicial services, arrangements were made for me to sit in a duty list in Townsville today. With a view to this court dealing with as many interim applications as possible, the wife’s application was listed before me today.

13. Prima facie, then, there is appropriate concern about the husband having the opportunity to provide instructions to his solicitors within a reasonable timeframe, so as to allow him to put material before the court relating to the wife’s application. 

14. However, further examination of the husband’s position makes the case for that adjournment significantly less meritorious.

15. As has been observed, the wife seeks the whole of the net proceeds of sale by way of an interim property settlement.  Her counsel, Mr Fellows, indicates that, in light of the circumstances to which I have just referred, the court might consider an amended application so as to provide the wife with one half of those proceeds, with the remaining balance held in a solicitor’s trust account pending further order of the court, and in particular, pending any application that the husband might bring in respect of those proceeds.

16. With that in mind, the husband indicates, through his solicitor, unsurprisingly, perhaps in the context of this 27-year relationship, that the husband would acknowledge, for the purposes of today’s application, a 50 per cent entitlement of the wife by way of settlement of property. 

17. When the position of each of the parties is considered in that light, the application for adjournment needs to be considered by reference to the respective prejudice likely to be suffered by each of the parties within the context of the overall interests of justice.

18. In my view, the wife makes out a case, by reference to the material filed by her, for her to receive a significant sum, so as to maintain herself, provide appropriate sums to her solicitors for the conduct of the action, and in particular, those aspects of it, pertaining to the disclosure which the husband now says he will make in the manner earlier referred to. 

19. That being so, as Mr Bowrey indicated on behalf of the husband, the potential prejudice to the husband lies not so much by reference to whether the application can proceed today, but rather, the nature of any orders that might be made if the application does proceed.

20. In that respect, Mr Bowrey argues that the husband would seek to put before the court material indicating that the wife has been significantly optimistic in her assessment of the value of the property other than the proceeds of sale of the former matrimonial home to which I have referred. 

21. However, giving full force and effect to that argument, it needs to be observed that the remaining property of the parties, other than the former matrimonial home, would need to be nil before the wife would not be entitled to receive at least one half of the proceeds of the former matrimonial home.

22. In that respect, Mr Bowrey received instructions at the bar table today that the husband’s best estimate of the property, other than the former matrimonial home (consisting of, I gather, shares in corporate entities and other real estate) might be in the region of about 1.5 million.  I place no significant emphasis upon those instructions in these reasons, because the husband has not had the opportunity to put before the court material relating to those other assets.

23. For present purposes, then, it seems to me appropriate, for the moment, to take into account the proceeds of sale of the former matrimonial home as a proper starting point, until such time as the husband has the opportunity to put material before the court relating to the assertions made by the wife, and in particular, those relating to the property of the parties. 

24. If the proceedings are confined in that way, it seems to me that the husband suffers little or no prejudice by permitting an application confined to one half of the proceeds of the former matrimonial home to proceed before me today.

25. I propose to order that the remaining half of the proceeds be held in a solicitor’s trust account, pending such further application as the husband might make, and further order of the court resulting therefrom. 

26. If that course is undertaken, the husband cannot, in my view, be seen to suffer any prejudice by reason of not being able to challenge those aspects of the wife’s material which, through his solicitor, he indicated he would otherwise have challenged, had he been given a better opportunity to file material in relation to the application.

27. The balance of convenience and the interests of justice, and looking at the prejudice to be suffered by each of the parties, point to me entertaining the application by the wife for partial property settlement.  It seems to me that there is a prejudice to her by my failing to do so, by reason of the matters to which I have earlier referred. 

28. That being the case, the issue then becomes what orders ought be made, given that the husband has not put material before the court in the circumstances earlier referred to

29. It seems to me that the appropriate course is to order that the wife be paid from the net proceeds of sale of the former matrimonial home the sum of $600,000.  I propose to also order that the classification of the amount so received – that is to say, whether it represents a partial property settlement and/or spousal maintenance and/or a pre-payment of any costs – be a matter left to be determined by the trial judge.

30. I also propose to order that, in respect of that sum, the wife file and serve, at the same time as filing any affidavit of evidence in chief in respect of any future trial, a document setting out the expenditure made by her from the sum so paid, by reference to the date that each amount was paid, the amount of each payment, the purpose of each payment, and the supporting documents evidencing each of those payments.

31. I will give liberty to the husband to apply to make such further application as he might consider appropriate and/or be advised in respect of the balance of the net proceeds of the former matrimonial home, which I will direct, be held in the trust account of the solicitors for the wife, pending further order of this court.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 February 2012.

Associate: 

Date:  26 March 2012