Daniels and Findlay (No 2)

[2010] FamCA 688

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY (NO. 2) [2010] FamCA 688

FAMILY LAW – ENFORCEMENT

APPLICANT: Mr Daniels

RESPONDENT: Ms Findlay

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 6 AUGUST 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: DESSAU J

HEARING DATE: 6  August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A Combes

SOLICITOR FOR THE APPLICANT: Hold & McDonald

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the wife is granted leave to withdraw her contempt application filed 6 July 2010 and the hearing date of 14 September 2009 shall be vacated.

2. That until further order there shall be a stay of the final orders of 9 March 2010, save that upon the written request by the husband’s solicitors forwarded to the wife by email, asking her to sign all or any documents and/or do any acts required to obtain Security Reference Numbers in relation to any shares referred to in paragraph 5 of the final orders of 9 March 2010, she shall comply within 7 days.

3. That the husband’s application filed 8 July 2010 and the wife’s stay application filed 4 August 2010 shall otherwise be adjourned before me for a telephone mention after the determination of the wife’s application for leave to appeal out of time, and the parties shall be advised of the date and time for that telephone mention.

4. That the reasons given by me this day shall be expedited and transcribed and retained on the court file.

5. That the husband’s costs of this day shall be reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1996 of 2008

MR DANIELS

Applicant

And

MS FINDLAY

Respondent

REASONS FOR JUDGMENT

1. I made final orders in this matter on 9 March 2010.  They were very complex orders.  They involved the transfer of assets, including shares, and the winding up of various entities following taxation and other accounting work being resolved.  At the time, the evidence supported the risk of the wife’s very probable failure to cooperate with orders and the execution of orders.  There was considerable discussion as to how orders could be effected, and, as was clear on my reasons, the orders were arrived at giving the husband as much responsibility as possible to oversee and effect the steps required for the matter to be finalised in accordance with the orders.  He was also given liberty to apply for that purpose in paragraph 20 of the orders. 

2. It was doing the best that could be done in circumstances where there could not be any certainty as to the signatory requirements of various banks and agencies, and where, as I said, accounting work was necessary before the final winding up some of the entities. 

3. On 8 July 2010, the husband filed an Application in a Case.  In it, he sought that a Registrar be appointed to sign various withdrawal of deposit forms on behalf of the wife to give effect to paragraph 5(b) of the orders, and he also sought that the wife pay his costs. 

4. His application was supported by his affidavit.  He swore that, in accordance with paragraph 5(b) of the orders, N Accountants had prepared bank Withdrawal of Deposit forms for accounts in the name of A Proprietary Limited as trustee for the A Superannuation Fund.  The import was that, pursuant to paragraph 6 of the orders, the husband was to receive bank funds contemporaneously with the wife receiving share transfers.  The husband swore that the wife had failed or refused to sign the Withdrawal of Deposit forms.  The ANZ and Westpac Banks had advised the husband that they required the wife’s signature, or a signature “on her behalf,” whilst the CBA, Bendigo Bank and Bankwest banks had not responded. 

5. The husband’s solicitor, Donald Ryan, also swore an affidavit.  He set out the various endeavours to forward Withdrawal of Deposit forms and some share transfers to the wife between 14 May and 28 June 2010.  He swore that the only response was an email from the wife dated 29 June 2010.  it was as follows:

   Sirs,

   You have it on record with the Court that my address for all service of documents is my email address.  You have ignored this AND ALL COMMUNICATIONS TO YOU!.

   I lodged Contempt of Court documents yesterday.  Do not waste my time.  You are (I hope) sufficiently intelligent to know that the share transfer forms should have been dealt with weeks ago.  The same situation applies regarding the redemption of deposits.  The Orders are quite specific.

   Quite Frankly, I am disgusted at your attempts to delay the proceeding in this matter.  I trust that you have NOT renewed deposit terms for more than an appropriate period.  DO YOU INTEND TO CONSULT WITH ME REGARDING ANY TERMS OF THESE DEPOSITS?

   You have ignored my request that all shares be sold by CONSENT…..indeed, I am now extracting all of the emails that you have ignored over 2.5 years.

   My request for a Late lodgement appeal against the Orders of 9^th March has been lodged with the Family Court; there is an Application for a Writ of Mandamus to be considered; I have reported Perjury allegations against both Ryan and your client (duly evidenced for prosecution by the police).  In these circumstances I cordially request that you cease wasting more of your client’s monies. 

   I trust that you DID advise your client that […] has a conviction in 2007 regarding her behaviour and Conviction…..?  If you failed to do so, I trust that he will hold you liable for failing to fully disclose the background of this highly suspect character. 

   Sincerely,

   [Ms Findlay]

6. It is of a tenor common to numerous previous communications by the wife.  There was no sign that she would cooperate in signing documents and, unfortunately, that conduct was consistent with conduct referred to by me in previous reasons for judgment. 

7. The husband’s application came on before me on 26 July 2010, just over two weeks ago.  At the start of the morning in court, several issues were raised on behalf of the husband. 

8. The first was that, as a matter of prudence and completeness, more detailed orders would be sought, first, to give the wife the opportunity to sign the requisite bank Withdrawal of Deposit forms that day, failing which a Registrar of the court could sign.

9. The other issue raised for him at the outset that day was that on the Friday before court, it had come to his attention that Term Deposits held in the ANZ and Westpac Banks would not be released until the wife rectified a technical problem of producing the 100 points of identification required, but not produced, at the time the accounts were opened. 

10. The wife had not filed any responding material to the husband’s application.  She said it was because she was not permitted to do so without leave of the court, referring to an order made by me at paragraph 5 of orders made on 4 February 2010.  Those orders related to a period when my capacity to make final orders was being seriously undermined by a barrage of new material.  It is fair to observe though that, without limiting its application, the order did provide simply:

    That no party shall be permitted to file any further documents in these proceedings without first obtaining my leave.

11. That said, the husband filed his Application of 8 July 2010 as permitted specifically by the liberty to apply that he was given in the final orders.  It is hard to accept that the wife did genuinely, at that point, labour under the misbelief that she could not file material to respond to the husband’s application.  In any event, she had already filed a contempt application of her own on 6 July 2010.  (That application was returnable later in front of another judge, but she has, today, said that she will withdraw that application, and I will make that order shortly.)

12. In any event, on 26 July, when the matter was before me, I offered the wife the opportunity to say what she wanted in response to the husband’s Application that she should sign the bank forms to give effect to my orders.  I noted that, although she had filed an application for leave to appeal out of time, my orders had not been stayed and should be effected.  As has been the case in the past, she did not entirely focus on the issue at hand, choosing to go over ground subsumed by the hearing and the final orders. 

13. Pertaining to the particulars though of the husband’s Application, the wife’s complaint appeared to relate, first, to the fact that the husband’s solicitor had sent letters to her postal address rather than via email, as she prefers.  Secondly, that the husband had also failed to comply with paragraph 6 of the final orders, in that he had not signed the share transfers as required.  She said he had been obstructive and had delayed deliberately so that the transfer of shares and funds could occur at a time more advantageous to him. 

14. There was no evidence to support her claim, although it was clear that he should have signed the share transfers in accordance with paragraph 6 of the orders.  However, it seems clear enough as to what had transpired.  No settlement could be effected until the bank funds could go to the husband, and the shares to the wife, in a contemporaneous transaction.  The orders were, as I have noted, predicated on the husband retaining control over the settlement.  In the event, he ascertained that he could not close off the accounts without the wife’s signature and, therefore, the settlement was simply not possible until she signed, but also attended the bank in relation to the 100 points of identification. 

15. I ultimately made it clear that day that I did not propose entering a debate as to the best date to ascribe the value to shares.  The orders provided for the wife to receive shares and for the husband to receive funds, all to the same value.  The date for the ascribing of value was set out in the orders as the day the husband signed the transfers, envisaged as a date up to 42 days after the order.  As noted, although he technically should have signed the transfers, his failure to do so was in the context of his failure to be able to effect the transfer in accordance with paragraph 6, the wife having failed to sign the bank documents as requested. 

16. The wife’s argument that the husband refused to comply, or that he manipulated things to his advantage, simply did not sit with the efforts made on his behalf to have the transfer of funds effected, and it did not sit with his Application that is before the court.   Her arguments as to the rise or fall on the share market was of little weight.  Each party shall receive the same value in shares or in cash, and each shall share then in any cash balance.

17. On that last court hearing day I gave the wife the opportunity to sign the bank withdrawal forms, and to attend the relevant banks with her points of identification, to avoid further delay. 

18. The wife attended the banks that day in the presence of Mr Ryan, the husband’s solicitor and produced the necessary points of identification so that, at least upon the proper signing of withdrawal forms, the banks would be in a position to release funds. 

19. I was then advised that the wife had signed all relevant bank Withdrawal of Deposit forms, and that the husband had signed all relevant share transfers.  It appeared that, finally, the parties were getting towards being able to effect the orders.  

20. At that point, however, the wife raised the issue as to whether the share transfers were, in fact, in the correct name, as well as an issue as to some IOOF shares and whether they were owned by the parties together or individually.  Unfortunately, the husband’s solicitor could not obtain the necessary information to resolve those issues that day. 

21. In an effort to resolve the enforcement of orders in the most expeditious manner, I adjourned the case to return before me today.  I ordered that the bank Withdrawal of Deposit forms signed by the wife were to be held in a sealed envelope not to be released, except by order of a Judge.  I made orders for the husband’s solicitors to send to the wife proof of the accurate names in relation to pertinent shares and the proof of ownership in relation to IOOF shares, and to forward accurate share transfers to her.  I also provided that bank printouts as to the balance of all or any bank accounts should be forwarded to the wife as she had requested, a request that I regarded as reasonable. 

22. On that last court date, both parties were asking me for various other orders about which neither side had any notice.  I took the view that the case needed to be harnessed and the orders needed to be finite.  I determined that I would not hear other oral applications that day. 

23. This week, it came to my attention that, via an error in my chambers, the orders prepared, as the orders made by me on 26 July 2010 and sent to the parties, were quite simply wrong.  It was an unfortunate error, particularly in a case that certainly will not profit from any further complications. 

24. On 4 August 2010, I had an order prepared under the slip rule to reflect the orders properly pronounced by me in court on 26 July, and had them forwarded to the parties with a letter explaining the error.  The wife’s copy, I add, was forwarded by email as she has requested.  Fortunately, I am satisfied that the wrong set of orders does not seem to have caused too much confusion.  The husband had already set about doing what he was obliged to do under the orders pronounced in court, and the wife, in documents sent to the court within days, accurately set out what had been pronounced.

25. In a way that is familiar in this case, since the last day in court each party has filed further material.  Two affidavits were filed for the husband on 3 August 2010, one by him and one by his solicitor, Mr Ryan.  In short, the husband set out that in relation to some of the shares, the subject of the final orders, have Security Reference Numbers that are not known to him.  Without them, he cannot further comply with my orders to obtain accurate details for transfers to be signed by him and exchanged with the wife’s signed Withdrawal of Deposit forms. 

26. Mr Ryan’s affidavit showed the efforts on his firm’s part to obtain those SRN numbers from the wife, with an explanation to her that the numbers were required in order for him to comply with the orders.  Unfortunately, the request was met with an email from the wife dated 30 July 2010 which, although it contained various snide comments, requests and claims, largely traversing matters already traversed in the hearing, it did not contain the simple SRN numbers that could have completed these transfers. 

27. In the meantime, the wife sought to file an Application in a Case which, after several days in the registry, was ultimately accepted for filing on 4 August 2010.  It is an application for the stay of the final property orders made on 9 March 2010.  She also sought an order for an interim financial distribution of $100,000 to both the parties, and that the husband place $450,000 to be held in trust pending the finalisation of all legal proceedings in this matter. 

28. Her Application was supported by an affidavit affirmed on 29 July 2010.  She deposed that the husband had already received $383,781 in cash from the Holden McDonald trust account.  She asserted that he had married his defacto partner, and set out a claim that he intends to depart Australia before the wife’s appeal in this case is determined.  She said that she “fears that” if the bank transfer documents and share transfers are exchanged he will immediately depart Australia.

29. She claimed the additional $450,000 from the pool of assets:

    Which total in excess of $2,400,000 (of which both the husband and the wife have each received $459,371,) and if the husband leaves Australia before the appeal process is concluded, she will loose [sic] any ability to recover any moneys which may be awarded.

    She went on to swear that she needed money and she sought $100,000 to finance her appeal process, and said that she willingly agreed to the same amount being distributed to the husband. 

30. She also filed an affidavit from a friend, Ms H, largely directed towards bad-mouthing the husband’s new partner.  That was an approach in keeping with the wife’s consistent approach and fixation against that person.  Ms H’s affidavit, for example, refered to the fact that the husband’s partner had told her that she had been diagnosed with genital herpes.  That was a theme running through the wife’s evidence.  It was apropos absolutely nothing to do with the financial hearing, and is apropos absolutely nothing to do with any hearing at this point.  Of a similar flavour were claims in Ms H’s affidavit that the woman’s former lover had been in jail.  These are matters that are unsubstantiated and irrelevant.  The affidavit purported to set out various reasons why Ms H anticipates that the husband’s partner would like to return to England.  The only vaguely relevant part was an assertion that she had, in the past, told Ms H that she preferred the climate in England. 

31. In the last few days there has been some trading of these new documents.  As I understand it, the wife, probably very late in the piece, did receive the new documents to be relied upon by the husband.  Unfortunately, the husband’s side only received the new Application relied upon by the wife for a stay, and these other matters, this morning. 

32. In any event, a very practical approach has been agreed upon.  This morning I told the parties what I proposed, and each agreed.  I proposed to grant the stay sought by the wife at least until the conclusion of her Application for Leave to Appeal out of Time, because it is so very proximate, due to be heard on 26 August 2010. I proposed a telephone hearing before me thereafter, to determine what should occur next. 

33. I reached that view because there was no undue prejudice in the circumstances to wait for that very short period.  Obviously, if leave is not granted, then the stay application will be irrelevant.  If leave is granted, the stay application will require further attention, but I have expressed the concern that the wife’s Notice of Appeal, as currently drawn, does not disclose comprehensible grounds of appeal and it is hard to determine any potential merits of the appeal.  That is something that may or may not be attended to in the course of the hearing on 26 August, or in any orders arising from that. 

34. If leave is not granted, then all the parties will be able to move forward with the settlement.  To that end, without being able to pre-empt what will occur, I made it clear to the parties that I will order the wife to supply the relevant SRNs in relation to the various companies, and she indicated her agreement to that. 

    DISCUSSION:   NOT TRANSCRIBED

35. There is absolutely nothing in it for the husband to have taken any steps to delay the settlement that he was so dearly trying to effect under the orders.  He simply needs those numbers.  The stay I have granted shall still permit the supply of those numbers to that they are available if and when they are required.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  6 August 2010