Gateau and Gateau

[2009] FamCA 325

FAMILY COURT OF AUSTRALIA

GATEAU & GATEAU [2009] FamCA 325

FAMILY LAW – ORDERS – Chattels – Costs

Family Law Act 1975 (Cth)

APPLICANT: MS GATEAU

RESPONDENT: MR GATEAU

FILE NUMBER: MLC 4230 of 2007

DATE DELIVERED: 15 APRIL 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 15 APRIL 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MRS PHELAN

SOLICITOR FOR THE APPLICANT: PLAZA LEGAL

COUNSEL FOR THE RESPONDENT: MR SERGI

SOLICITOR FOR THE RESPONDENT: SOCCIO & ASSOCIATES

Orders

UPON the undertakings given on oath from each of the husband and wife that they do not have in their possession or under their control or otherwise have not unlawfully disposed of the items of furniture or personal possessions identified in these orders

IT IS FURTHER ORDERED:

1. THAT the evidence of the husband and wife given under oath be transcribed and placed upon the court file and made available to the parties.

2. THAT all extant applications be otherwise dismissed and all of the proceedings be finalised and the matter be removed from the list of cases awaiting hearing.

3. THAT there be no order as to costs and any reserved costs orders are discharged (the effect of this order is that each party will pay their own costs of and incidental to the proceedings).

IT IS CERTIFIED

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

IT IS NOTED:

A.THAT the list of personal possessions and chattels which were the subject of the mutual undertakings given on oath are:

(i)any “Eternal Beau” crockery/dinner set pieces or dinnerware;

(ii)an antique pair of silver stud earrings, with either a diamond or crystal stud;

(iii)20 – 24 Italian vinyl records, size 33 LP, formerly comprising part of the collection of the late Mr Gateau Snr.

(iv)a candle stick as identified on page 2 of exhibit “45” of the husband’s affidavit filed 30 March 2009;

(v)two decorative plates again as depicted in the last photograph on page 4 of exhibit “45” of the husband’s said affidavit.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4230 of 2007

MS GATEAU

Applicant

And

MR GATEAU

Respondent

REASONS FOR JUDGMENT

1. The matter of Gateau is before me as a special fixture.  Mr Sergi of counsel appears for the husband, Mrs Phelan of counsel for the wife.  Both parties are in court.  Final orders pursuant to section 79 were pronounced in this matter.  There are some outstanding and continuing issues in relation to the sale and disclosure of the proceeds of sale of shares and the way in which those moneys have been applied, and otherwise as to various items of furniture. 

2. Dealing first with the share proceeds, I am satisfied that the husband has accounted by affidavit to the court as to the sale, date of sale and proceeds of sale of the various publicly listed shares.  There is no dispute that the Woolworths and ANZ shares were divided equally between the parties, pursuant to the order.  The shares in Qantas, Telstra and Coles-Myer were sold in 2007.  The shares in Biota were sold in March 2008 and that sale was largely pursuant to paragraph 4(v) of my orders pronounced ex tempore on 25 February 2008.

3. Ultimately the issue surrounding the proceeds of sale of shares developed into an explanation of where the moneys were paid and whether they were paid into an account pursuant to my order, which was either the managing ANZ account or an interest-bearing account.  There was discussion between the counsel and ultimately those matters resolved with Mrs Phelan having instructions on behalf of her client not to further pursue the matter.  On balance, that was a wise decision.  I refrain from any particular criticism; many, many issues in this case have been ongoing and have caused concern, if not consternation.  Ultimately the explanation is seemingly apparent and acceptable.

4. Furniture is a whole new issue.  There are items of sentimental value to the husband that he maintains that he has not received.  Whilst the complaint relates to many items and the affidavits and annexures of the husband are voluminous in the extreme, ultimately there were five selected items of particular concern.  They were,

   a)an Eternal Beau crockery/dinner set pieces and/or dinner ware;

   b)a pair of antique silver stud earrings;

   c)20 to 24 Italian vinyl records from the collection of his late father;

   d)a candlestick, as identified in exhibit 45 to the husband's most recent affidavit; and

   e)two decorative plates, likewise as identified in exhibit 45 to that affidavit.

5. Counsel for the husband have identified and handed photographs of the plates and candlestick to the court.  The husband has been called and has given evidence that he has not received any of the above five items.  The wife was called and has given evidence that she has either delivered some of them to members of the husband's family on his behalf, or otherwise the items were packed by her in sealed boxes in the garage and there collected by a delivery agent engaged by the husband.  The husband has an obligation if any of these items are located by, or under his control - or his extended family and, in particular, the Ballarat cousin - to immediately notify the wife, no doubt with an appropriate apology.  The wife for her part has an obligation to immediately notify the husband, and not just with an apology but with delivery of items in good condition to him, if they turn up in the possession of her extended family, friends, neighbours or herself. 

6. I will have the transcript of evidence of the husband and wife compiled and placed on the court file.  Copies will be made available to both parties.  I am satisfied that each of them wholly understand their obligation to tell the truth.  I have intentionally placed them on their oath to elevate the seriousness of any deliberate or intentional breach.  Otherwise, the court will spend no further time on chattels.  I do identify that in paragraph 74 of his most recent affidavit the husband put a value of $3000, but clearly that is a material value and not a sentimental value and it is very difficult to value the family connections, history, tradition and heritage of particular items.  That probably has an irreplaceable value.

7. I am satisfied that the court is not able to reasonably and properly make a determination as to which of the parties may have intentionally and deliberately lied.  It may be that neither of them are and that the wife, for example did pack, but some other person intervened, or otherwise it may be that the husband's extended family have borrowed without his knowledge items.  I simply am not going to draw conclusions one way or the other.  What I am going to do is to dismiss all extant applications that remain before the court, save for the issue of costs which I will shortly address.  That means that this matter is now wholly and entirely out of the Family Court on all property and like issues.

8. The other matter that Mr Sergi had instructions to foreshadow to the court was an adjustment by way of a payment of $25,000 to be made equally by the parties as to a sum of $12,500 to the education fund.  That application is likely somewhat misguided.  There are final property orders pursuant to section 79.  The period for appeal has long elapsed.  In any event, the parties agreed on many aspects of that final determination.  To set aside orders under section 79, there must be shown to be a miscarriage of justice by reason of fraud, duress, suppression of evidence or like matter.  That is not before the court and it not contemplated.

9. The reality is that these parties will need hereafter to talk to each other about future school fees and any required top up of the education account.  That is a matter upon which the court makes no orders and no orders are now sought.  I therefore have the clearest understanding that any and all contentious matters, property or financial related, enforcement of orders or any such issue, is now completed and this matter will be consigned to archives.  There is however remaining the question of costs.  I have from both counsel extensive submissions as to what orders are in the circumstances applicant and I will hear any further oral submission forthwith in that regard.

COSTS

1. I have before me competing applications for costs. I have two well prepared, detailed submissions from counsel. Each of them seeks costs for differing reasons, but ultimately their applications are directed to the inappropriate and unprofessional, in a commercial sense, conduct of the other or other solicitors. The primary requirement of s117 the Family Law Act is each party pay their own costs. The exception is in circumstances where it is just to make an order for costs. Subsection (2)(A) of section 117 sets out those circumstances and both counsel have identified the Act and relevant case law in their detailed submissions.

2. I have due and detailed regard to the various exceptions within subsection (2)(A), and I know so well the facts of and related to this case, particularly the matters that I have dealt with over the past three hours this morning.  The simple bottom line is I find each party will pay their own costs.  I clearly identify that it would not be just to visit the costs of a party, or any part thereof, upon another party.  I understand that the costs may be considerable.  I well understand that both parties - in particular in recent months, the husband has gone to unrivalled lengths to explain and put before the court voluminous affidavits and exhibits, no doubt with the proper intention that the wife would understand the propriety of his actions.

3. Ultimately this matter settled in June 2008.  The property orders remain.  The implementation has been delayed, but I am not going to place blame on a person.  I conclude that what is just is both parties pay their own.  In any event, I have no quantified claim with precision before me.  An order for costs would involve taxing and further hearings and/or disputes and I will avoid that scenario.  That however is only incidental to the primary conclusion which I reach, and that is that neither party can make out the justice of an order of costs against the other party.  I certainly would not contemplate any indemnity costs and I made that clear at the commencement of argument to counsel.  I intend to dismiss any and all costs, including any reserve costs. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:  Annette King