Daniels and Findlay (No 3)

[2010] FamCA 795

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY (NO. 3) [2010] FamCA 795

FAMILY LAW – ENFORCEMENT

APPLICANT: Mr Daniels

RESPONDENT: Ms Findlay

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 26 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 26 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the husband’s Application in a Case filed 8 July 2010 shall be adjourned before me at 10.00am on 6 August 2010.

2. That the bank withdrawal forms signed by the wife this day shall be held in the Court in a sealed envelope not to be released save by order of a judge of this Court.

3. That the husband’s solicitors shall email to the wife by 5.00pm on 4 August 2010:

   (a)Proof of the accurate names in which the shares referred to in paragraph 5(a) of my orders of 9 March 2010 are held;

   (b)Proof of the names in which the parties or either of them hold shares in IOOF;

   (c)Accurate share transfers signed by the husband pursuant to paragraphs 5 and 6 of my orders of 9 March 2010; and

   (d)Bank print-outs as to the balance of all or any accounts in relation to which Withdrawal of Deposit forms have been signed by the wife this day pursuant to paragraphs 5 and 6 of my orders of 9 March 2010.

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. Final Orders were made by me in this matter on 9 March 2010.  They were very complex Orders, involving the transfer of various assets and shares and the winding-up of various entities following the taxation and other accounting work that needed to be resolved.  At the time, the evidence supported the risk of the wife’s failure to cooperate with those processes.  There was considerable discussion as to how Orders could be effected and, as was clear in my Reasons, the Orders were arrived at by 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.

2. By paragraph 20 of the Orders, he was given liberty to apply for that purpose.  It was doing the best that could be done in circumstances where, in some instances, there could not be any certainty as to the signatory requirements of various banks, institutions and other agencies. 

3. The husband has now filed an Application in a Case, on 8 July 2010.  He seeks that a Registrar of the Court be appointed to sign withdrawal of deposit forms on behalf of the wife to give effect to paragraph 5(b) of the Orders and that the wife pay his costs of the application.

4. His application is supported by his affidavit.  He swore that in accordance with paragraph 5(b) of the Orders, N Accountants prepared withdrawal of deposit forms for the accounts in the name of A Proprietary Limited as trustee for the A Superannuation Fund.  The import is that, pursuant to paragraph 6 of the Orders, the husband is to receive funds contemporaneously with the wife receiving share transfers.  The husband swore that the wife has failed or refused to sign the withdrawal of deposit forms. 

5. The ANZ and Westpac Banks have advised the husband that they require a signature by the wife “or on her behalf”. The CBA, Bendigo Bank and Bankwest banks have not responded.

6. The husband’s solicitor, Donald Ryan, has also sworn an affidavit.  In it he sets out the various endeavours to forward deposit forms and some share transfers to the wife, between 14 May 2010 and 28 June 2010.  He swore that the only response was an email from the wife dated 29 June 2010.  It is 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 proceedings 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 requests that all shares be sold by consent . . . indeed, I’m 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 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 moneys.  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, [the wife].

7. Unfortunately, that email is of a tenor common to many of the previous communications from the wife.  There is no sign that she will cooperate in signing documents.  This conduct is consistent with conduct referred to by me in previous Reasons for Judgment. 

8. This morning in court, several issues were raised on behalf of the husband at the outset. 

9. The first was that, as a matter of prudence and completeness, more detailed orders would be sought to give the wife the opportunity to sign the requisite bank withdrawal of deposit forms today, failing which a Registrar of the Court could then be requested to sign them.

10. A proposed Minute of Amending Orders sought by the husband contained various other proposals to which I shall turn shortly, so that both parties can address me about the detail. 

11. The other issue raised by the husband at the outset today was that on Friday it came 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 never produced by her, at the time the accounts were opened. 

12. 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 my Orders of 4 February 2010.

13. Those Orders related to a period when my capacity to make final orders was being interrupted and undermined by a barrage of new material.  It is fair to observe though that the Order did simply provide:

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

    without limiting its application. 

14. That said, the wife has otherwise, on 6 July 2010, filed a contempt application against the husband, and the husband has otherwise filed this application.  It is hard to accept in those circumstances that the wife genuinely laboured under the belief that she could not file material to respond to the husband’s application.  In any event, 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 the Orders.  I noted that although she has filed an Application for Leave to Appeal out of time, the Orders have not been stayed and must be effected.

15. As has been the case in the past, the wife found it difficult to focus on the issue at hand, choosing instead to go over ground subsumed by the earlier long hearing and the final Orders. 

16. Pertaining to the particulars of this application today, her complaint appeared to relate first to a postal address rather than an email address being used by the husband’s solicitor to contact her.  That really is an argument with little substance.  In any event, there is no question that she became perfectly well aware that she was to sign these documents, but she failed to do so.

17. Secondly, her argument was that the husband had also failed to comply with paragraph 6 of the Orders in that he had failed to sign the share transfers forthwith as required.  She said he had been “obstructive” and had “deliberately delayed” so that the transfer of shares and funds could occur at a time most advantageous to him. 

18. There was absolutely nothing in the material to support that claim, but it is clear that he should have signed the share transfers in accordance with paragraph 6 of the Orders and an email handed up by her from the husband’s solicitors to Mr I at N Accountants made it clear that his advisers had, at least by 17 June 2010, realised that it should have but had not occurred.

19. In any event, it seems clear as to what had transpired, and how that part of the Order, which should have been complied with, was in fact overlooked.  No settlement could be effected until the shares could be transferred to the wife and the equivalent funds could be transferred to the husband in a contemporaneous transaction.  The orders were 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, therefore the settlement was not possible until she signed the bank documents.  She has not signed them.

20. I do not propose entering a debate now as to the best date to ascribe the value to shares.  The Orders provide for the wife to receive shares and for the husband to receive funds, to the same value.  The date for ascribing the value was set out in the Orders, being the day the husband signed the transfers envisaged as a date up to 42 days after the Orders.  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 not having signed the documents the bank required.

21. The wife’s argument that the husband has refused to comply with the Orders, or has manipulated things to his advantage, does not sit with the efforts being made on his behalf to have the transfer of funds effected, including this Application that he brought to the Court.  Her arguments as to the rise or fall in the share market is also of little import once examined.  Each party shall receive the same value in shares or in cash and shall then share in any cash balance. 

22. This morning I gave the husband the opportunity to sign the share transfers.  He did so.  I also gave the wife the opportunity to attend to the signing of the bank withdrawal forms, and to go to the relevant banks with her points of identification, to avoid further delay in that regard. 

23. The wife says she has now completed the bank ID requirements, although I do not know if there is objective proof of that.  However, she has not signed the bank documents or the share transfers.  She says she has not had the opportunity to look at the bank documents in detail.  That is surprising given that they have been sent to her previously.  So far as the share transfers are concerned, she says that some are not accurate.  She refers in particular to an IOOF transfer saying that the husband owns some IOOF shares.  She wants him to retain those and for her to retain IOOF shares in her name.  In my view, the Orders are clear, that shares owned jointly by the husband and the wife are to be included in the transaction to which I have been referring today. 

24. Now, I need submissions as to how to formulate the Orders.  As I said, counsel for the husband has prepared a Minute of Orders.  It goes beyond the orders sought in the application brought by the husband.  I am not critical of that in the sense that, as often happens, the situation has evolved.  The husband’s late discovery that several banks still required the wife’s points of identification, could only have served to alarm him further that it would be difficult to effect what needs to be effected to get these transactions completed.

25. I will hear submissions about that.  I note otherwise that the wife still has her outstanding contempt application.  This morning I offered what I thought was a proposal whereby that was no longer needed.  She still wants to proceed with it and, as I understand it, it is listed in the future in front of another judge and the husband’s side can answer it or put in whatever material they choose.

LENGTHY DISCUSSION ABOUT ORDERS

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  26 July 2010