Drury and Drury (No. 3)

[2008] FamCA 1167

FAMILY COURT OF AUSTRALIA

DRURY & DRURY (NO. 3) [2008] FamCA 1167

FAMILY LAW – PROPERTY – Orders for valuation of real property

APPLICANT: Mr Drury

RESPONDENT: Ms Drury

FILE NUMBER: MLC 3298 of 2008

DATE DELIVERED: 17 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 17 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms L. Colla

SOLICITOR FOR THE APPLICANT: Holt & McDonald

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the husband and wife forthwith make arrangements to undertake joint appraisals (at the joint expense of the parties, if any) of the properties at:-

(a)     B;

(b)     G;

(c)     S;

(d)     Z;

(e)     H;

(f)   M;

(g)     E;

(h)     R (vacant land)

(“the properties”) AND IT IS REQUESTED that such appraisals be released to each party on or before 27 January, 2009.

1. (a)      That on or before 19 December, 2008 the husband do all acts and things and sign all documents necessary to arrange immediate insurance in relation to each of the properties and provide the wife (via her lawyers) with written evidence of his compliance with this order including providing the wife’s solicitors with Certificates of Insurances; and

(b)      The husband shall thereafter keep the properties fully insured until further order; and

(c)      The husband shall refund to the wife any sum she has paid to insure M property on or before 19 December, 2008.

1. That on or before 14 January, 2009 the husband and wife do all things and sign all documents necessary to effect the orderly transfer of all bills in relation to the former matrimonial home at E into the husband’s name alone.

1. That the husband and wife forthwith (and in any event no later than 19 December, 2008) do all things necessary to release to the wife the sum of $50,000.00 (via her lawyers) from the monies held by L Pty Ltd in Sandhurst Trustees Limited and the characterisation of this payment shall be reserved to the Trial Judge.

1. That by 14 January, 2009 the husband provide to the wife (via her lawyers) a full and proper accounting by him of all withdrawals from the Sandhurst Trustees Account No:  … as and from 1 January, 2008, and thereafter on a quarterly basis, commencing 14 April, 2009.

1. That the husband pay or cause to be paid at his sole expense the costs order in favour of the wife made 22 August, 2008 together with interest thereon as set out in the Family Law Rules and such payment be made on or before 14 January, 2009 (via the wife’s lawyers).

7A.     That the husband and wife attend a full day mediation in March, 2009, the mediator’s fees being paid upon demand at their joint and equal expense.

7B.     That the husband and wife co-operate with any reasonable request made of them by the other in respect of preparation for the mediation including:-

(a)       A request in respect of discovery or inspection of documents;

(b)       The calculation of Capital Gains Tax on each piece of the properties to be assessed by the parties’ accountant as a single expert at the joint and equal expense of the parties paid from the proceeds of sale of S property;

7C.     That 35 days prior to the mediation the parties shall exchange the following documents if relevant and if not already exchanged:-

(a)       The party’s three most recent taxation returns and assessments;

(b)       Any superannuation documents for each superannuation interest of the party, including:-

a.   The completed Superannuation Information Form; and

b.   For a self-managed superannuation fund, the trust deed and the last three financial statements;

(c)       For a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:-

a.   Financial Statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

(d)       For the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:-

a.   Any Business Activity Statement for the 12 months ending immediately before the first Court date;

(e)       For any corporation, its most recent annual return, listing directors and shareholders, and the corporation’s constitution;

(f)       For any trust, the trust deed;

(g)       For any partnership, the partnership agreement;

(h)       A market appraisal of any item of property in which a party has an interest;

(i)        All documents containing evidence about:-

a.   The financial matters mentioned in the party’s Financial Statement (Form 13) and the Conciliation Conference Document completed by the party for the conference;

b.   Financial contributions made at the commencement of cohabitation;

c.   Any inheritances, gifts, or compensation payments received during cohabitation;

d.   Any purchase or disposal of property in the 12 months prior to and since separation;

e.   Any increase or reduction of liabilities since separation; and

f.   The value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value.

(j)        Each party’s bank accounts for the last 12 months;

(k)       Each party’s ANZ bank accounts for the last 12 months;

(l)        Each party’s documents in respect of the purchase or disposal of commodities including gold; and

(m)      Each party’s E-Bay accounts for the last 12 months.

7D.     That the mediator be appointed by the parties with the wife providing three names of proposed mediators on or before 14 January, 2009 to the husband and the husband choosing one name from the list of three on or before 30 January, 2009 failing which the Chairman of the Victorian Bar Council shall nominate the mediator who shall be a specialist in family law matters and an experienced mediator and it is requested that such nomination be made on or before 14 February, 2009.

7E.     That in default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to section 106A to execute all such documents in the name of the party in default and do all such acts and things necessary to give validity and operation to the said Orders and the party in default pay to the other party that party’s costs and disbursements on an indemnity basis.

1. Certify for Counsel for the applicant wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3298 of 2008

MR DRURY

Applicant

And

MS DRURY

Respondent

REASONS FOR JUDGMENT

1. This case came before me in the Judicial Duty List on 3 June this year.  I set out a brief history in the reasons for judgment I gave that day.  I made various orders.  Unfortunately, there was then a failed conciliation conference.  It could not achieve anything because the valuations that I had ordered had not taken place.  The Registrar ordered the husband to pay the wife's costs of $2214.  Today the husband has put a number of issues before the court. 

2. The first relates to the valuations.  They have still not occurred.  Despite my previous order, the husband says that he does not want to have to pay for sworn valuations.  In his view the eight properties that the parties own should be sold.  He argues that, particularly in this uncertain market, that is the only certain way to understand the value of the properties.

3. It had also been ordered for the capital gains tax implications to be ascertained.  Unfortunately that also has not occurred, because the funds were not forthcoming.

4. I would normally proceed on the basis that having made the orders to secure sworn valuations and the CGT implications, that is the end of it.  I cannot sit as an appeal court from my own orders.  However, in light of the financial crisis that has developed since June of this year, I had a discussion with Ms Colla for the wife along the lines of looking at an approach that might be more beneficial to her client as well as to the husband in the current circumstances.  There has been a consensus - I think I can put it as highly as that - whereby at this stage the parties will obtain market appraisals.  They still need an indication of the CGT implications, to be well armed for a mediation upon which they have now agreed.

5. I hope for the parties that they will reach a full agreement in mediation.  If not, then the sworn valuations must proceed.  At least they will then proceed when there is no other choice, and closer to the trial date, so that they do not need to be repeated in this uncertain market. 

6. I shall make orders in accordance with the wife's application for the funds to be made available for the sworn valuations if they are needed, and for the CGT assessment in the meantime.  The husband has given some indication that he does not agree.

7. The orders will be made nevertheless.  The funds must be made available.  It is the only way what needs to occur can occur.

8. The wife raised the issue of having the various properties insured. The husband gave me the answer that it was up to him whether he insured them or not.  I do not regard that as a satisfactory answer.  It is imperative at this stage to ensure that all relevant property pending the property settlement, is adequately protected.  So I will make an order that the properties all be insured and that the money also come from the funds that are held in the account that has been referred to in the application. 

9. There has been an issue about at least one bill referrable to the former matrimonial home, in which the husband is living.  Again, there now appears to be some consensus to the effect that the husband will continue to be responsible for the bills in relation to the property where he is living.  At the moment there is a fairly contorted arrangement whereby the mail continues to go to the wife, then gets passed on to the husband.  The appropriate order is that the parties both do all acts and things necessary to have the bills transferred into the husband's name by a certain date. 

10. The next issue that was raised was in relation to money held in a Sandhurst account.  The wife, quite reasonably, raises the fact that there has been several very large withdrawals.  The husband, it appears equally reasonably, refers to the fact that he has been paying very substantial business expenses such as taxation.  However, he has also made a gift to himself, in relation to the management of the business.  I have made it clear that the only fair and proper course, particularly to promote the mediation proceed successfully, is for there to be proper accounting by the husband to the wife as to how those sums have been expended and how any other sums withdrawn are expended.  The parties will need to add time frames for all of this.  It might be that a couple of weeks is appropriate at this time of year.

11. I am asked to make an order that if either party refuses to sign a document under my orders, there should be the capacity in a Registrar of the Court to sign the documents.  I propose making that order, given the history.

12. I have been asked to make an order that the Registrar's order for the husband to pay the wife’s costs of $2214 for the failed Conciliation Conference, now be specified to include interest in accordance with the interest provisions in the family law rules or regulations.  The husband has made it clear that he is refusing to pay the costs.  In that context it is appropriate that I re-state the order and order interest to run.  I hope he might take a different view when he contemplates the fact that the interest is mounting, is likely to come from his share of the property, and it is a waste.

13. Otherwise there is an agreement that there shall be a joint mediation paid for from joint funds.  To choose a mediator, wife's solicitor will put three names to the husband, within a short time.  He should then have a short time to choose one name.  In the event that he does not, the Chairman of an independent professional body, such as the Bar Council, should choose a family law specialist who is also experienced in mediation, to conduct the mediation.  That way the parties have the choice to agree, or they have the certainty that it is someone external to them who has chosen.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  17 December 2008