Gerrard and Henderson

[2009] FamCA 1215

FAMILY COURT OF AUSTRALIA

GERRARD & HENDERSON [2009] FamCA 1215

FAMILY LAW – PRACTICE AND PROCEDURE – property settlement proceedings – discovery and disclosure – injunctions

APPLICANT: Ms Gerrard

RESPONDENT: Mr Henderson

FILE NUMBER: ADC 2244 of 2008

DATE DELIVERED: 31 July 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 31 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr McGinn

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy

Orders

1. That the wife forthwith provide to the husband’s solicitors copies of all correspondence and documents issued or sent by the wife to the Australian Taxation Office in relation to the Henderson Superannuation Fund and D Pty Ltd.

2. That the parties each be restrained and an injunction is granted restraining each of them from corresponding with BW Accountants, the Australian Taxation Office, the Deputy Commissioner of Taxation or any other person or entity in relation to the Henderson Superannuation Fund or D Pty Ltd except where the other party has first been provided with written notice of the terms of any correspondence that a party wishes to send to any such person or entity and the other party has provided his or her written consent to the terms of such correspondence.

3. That within 14 days the wife do provide by way of further and better disclosure to the husband’s solicitors:

   a.   the certificate or certificates of insurance in relation to the home at W and the contents of that home;

   b.   the loan account ledgers of G Pty Ltd from 1 July 2003 to 25 June 2009;

   c.   all ledger books of the said company from 1/7/03 to 30/6/09.

4. That further consideration of the Amended Application in a Case filed by the wife and the Response filed by the husband be adjourned to 10:00am 14 August 2009

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2244 of 2008

MS GERRARD

Applicant

And

MR HENDERSON

Respondent

ex tempore reasons

1. In this matter there are two applications before me today. Firstly, an Amended Application filed by the wife on 30 July 2009 and secondly, a Response filed by the husband on 30 June 2009.  Just to put that into context, the wife had an earlier application on the file which the husband responded to and that is his response that I am dealing with.  The wife, to repeat, has filed an amended application which now sets out the orders that she seeks.  In relation to that application, I have taken the wife and the husband’s counsel through each of the orders sought and sought submissions as to whether the orders are necessary and, more importantly, why I should make the orders sought.

2. In the end result, both the wife and Mr McGinn appear to be comfortable to proceed on the basis of the agreement that seems to have been reached during the course of this afternoon in relation to the issues in dispute.  For example, in relation to the orders sought regarding the family investment company, D Proprietary Limited, I have indicated that I am not prepared to make the orders that the wife seeks.  However, that matter needs to be finalised and the agreement that has been reached is that the wife has made available to the husband’s counsel a copy of the documents sent to the Australian Taxation Office.  Putting aside whether those documents have been provided before, the husband wants to consider them over the next few days.  If he is satisfied that what has been put in those documents covers the issues that he has in relation to these tax returns, then there is no need to take that matter any further and the documents lodged with the ATO can be processed.

3. If, though, the husband still has concerns about the content of the documents, then the husband will need to put to BW, the accountants, his suggestions of how to overcome those concerns.  As I understand it, the issue relates to how certain loans are treated in the financial statements.  Now, as to where that goes if there is no agreement about it, I cannot predict at the moment.  It may be that the parties will see some sense in trying to reach agreement about these matters without spending all afternoon in court.  They are perfectly free and able to reach agreement about these matters, rather than have the minutiae of their financial affairs aired in this court and orders made which perhaps neither party wants, but what they do about this is their choice.

4. In any event, it may be that that matter has to come back, but that is how I understand that issue will initially be dealt with. 

5. After hearing the submissions of the wife and the husband’s counsel, it seems to me that there are no orders that need to be made arising out of the wife’s application.  That is because of the agreements that have been recorded during the hearing on the transcript as to how most, but not all, of the matters that the wife raises will be progressed. 

6. I come then to the response filed by the husband, as particular and as detailed as the wife’s is, but perhaps even more so.  As with the wife’s application, I have taken the wife and Mr McGinn through all the orders sought, up to and including paragraph 5.3.  There are further orders sought, but I have simply run out of time this afternoon to deal with it and I do not know when I can get back to it, but I will do my best in terms of when I can adjourn the matter to to deal with the outstanding issues.  I also invite the parties to confer and try and reach agreement about these nitpicking issues, rather than have them aired further before me, but if they cannot do that, either because they will not or there is simply an impasse which cannot be overcome, then I will make time available to deal with these disputes.

7. One day, the Court might be able to get on and deal with the property settlement applications, which comprise the real issues between these parties, but I cannot see that day occurring in the near future.  In any event, unlike with the wife’s application, in the response there are some issues which need to be the subject of orders.  For example, paragraph 2.2, I propose to make that order.  The reason is that the wife has failed to discover a letter that she sent to the Australian Taxation Office in relation to the superannuation fund, and I deem it appropriate to make an order that she provide copies of all correspondence or documents that she has sent to the Australian Taxation Office.

8. Next, the husband seeks an injunction restraining the wife from corresponding with BW, the accountants, the Australian Taxation Office, the Deputy Commissioner of Taxation, or any other person or entity in relation to the superfund or D Proprietary Limited, except where he has written notice first up of what the wife wants to say in the correspondence and he consents.  I propose to grant that injunction - but make it mutual.  It seems that these parties cannot trust each other and to describe them as trustees of their own superannuation fund is probably a misnomer in those circumstances, but that is the position they find themselves in.  They have to work together and maybe one day, they might realise that that is a better way to go – I keep repeating it, but it needs repeating, given the history of this litigation – than to bring such applications before this court on an ongoing basis.

9. There is a significant dispute between the parties in relation to the financial affairs, or circumstances of a company by the name of G Proprietary Limited.  It is a company that on the face of the financial statements has minimal value, but the husband does not accept that.  He has had a close look at the financial statements and he has raised concerns about the accounting and whether there is anything which has not been disclosed and whether this company is therefore worth far more than the financial statements indicate.

10. I spent a lot of time this afternoon in trying to establish the relevance of the documents that the husband seeks by way of discovery.  At the end of the day he has taken, in my view, a sensible approach to that and to look at it in a staged way.  He has seen the financial statements.  Those financial statements apparently have been prepared from ledger books written up by the wife.  Thus, in a sensible submission, his counsel puts to me, that he should have let us just have access to the ledger books at this stage and see where that takes him.  It may be that that is not the end of the road, but if it is, then well and good, if it is not, obviously that issue will need to be aired before me, presumably, on an adjourned hearing date.  Thus, I propose to make an order about the provision of the ledger books of that company, which, as I understand it, are maintained and retained by the wife.

11. In the circumstances, I am not going to dismiss the application.  I am going to adjourn it to the adjourned date when I deal with the balance of the husband’s application.  That seems to me to be a neater approach and leaves open the ability of the wife to pursue any of the orders that she seeks if what has been agreed does not come to pass. 

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 31 July 2009.

Associate