HURST & WERNER

[2012] FamCA 469

FAMILY COURT OF AUSTRALIA

HURST & WERNER [2012] FamCA 469

FAMILY LAW – PROPERTY SETTLEMENT – Where parties contributions are considered to be equal – Where the Wife’s family aided the purchase of the former matrimonial home – Where the Wife’s Initiating Application has been subject to a series of adjournment due to the Wife ’s own failure to comply with trial directions – Final Orders made in accordance with the Husband’s draft orders – Execution of these Orders delayed for six weeks to allow the Wife the opportunity to apply for the setting aside of these Orders.

APPLICANT:

Ms C Hurst

RESPONDENT: Mr R Werner

FILE NUMBER: CSC 119 of 2009

DATE DELIVERED: 14 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 15 March 2012, 13 April 2012 and 13 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Mylne, Solicitor of Mylne Lawyers appearing for the Applicant Wife

COUNSEL FOR THE RESPONDENT: Mr Burridge of Counsel appearing for the Respondent Husband

SOLICITOR FOR THE RESPONDENT: MacDonnells Law-Cairns

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Wife make any application to set aside these Orders on or before

   
   

   10 August 2012 and pending any application, execution of these Orders be stayed until that time.

IT IS ORDERED THAT:

1. The Wife retain and the Husband transfer to the Wife all his right, title or interest and relinquish any claim in relation to the real property situate at … T Street, Suburb S, in the State of Queensland, more properly described as Lot … on RP …, County …, Parish …, Certificate of Title … .

1. The Husband retain all his right, title and interest in the real property at … J Street, Suburb E, more properly described as Lot … on RP …, County …, Parish …, Certificate of Title … (“the Suburb E property”) and the Wife relinquishes all her right, title and interest, whether legal or equitable, in the Suburb E property.

1. The Husband and Wife are:

(a)solely entitled to the exclusion of the other, to all other property of whatsoever nature and kind, including choses in action, held by such party as at the date of these Orders, and for that purpose:

(i)bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof;

(ii)insurance policies are deemed to be in the possession of the beneficiary thereof;

(iii)superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlement;

(b)solely liable for, and will indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order; and

(c)      solely liable for all debts held in the name of that party.

1. All other outstanding applications be dismissed.

IT IS FURTHER ORDERED THAT:

1. Any application for costs proceed by the filing of written submissions on or before 17 September 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst & Werner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC 119 of 2009

Ms C Hurst

Applicant

And

Mr R Werner

Respondent

REASONS FOR JUDGMENT

1. In this matter, I have to indicate that the application was initiated by one Ms C Hurst, who was married for a comparatively short period.  I am saying married, but who resided with the respondent, Mr R Werner, for a considerable period.  But I must indicate that, subsequent thereto, the applicant has filed no documents at all in support of her application.  Mr Mylne, a solicitor who appears on behalf of the applicant, has said everything he possibly can in favour of his client in opposition to the application of the respondent that the matter be heard, in effect on an undefended hearing –

RECORDED  :  NOT TRANSCRIBED

But he appears to have been unable to get specific instructions to put matters before this court in relation to the initiating application.

1. I have had put before me by counsel on behalf of the respondent husband a document known as Chronology of Adjournments, and I indicate that I accept that chronology, having checked through the orders, save that, insofar as the order of 26 October 2011 by Murphy J is concerned, that an undefended hearing was not foreshadowed; an undefended hearing was ordered should she not comply with the matters, and that was adjourned to 15 and 16 March 2012.

2. All of these adjournments, as far as I can see, have been engendered by the wife being unable to put adequate instructions to her legal advisers, which have varied, since 24 May 2010, which eventually culminated in Mr Mylne, who came into this matter –

RECORDED  :  NOT TRANSCRIBED

14 March 2012, put before the court two matters which I have to consider, he says, in not proceeding with the hearing, that is, (1) that his client appeared to him to be not very well and that he thought it was necessary for a psychiatric examination to take place, he being afeared that it may be necessary for him to seek the appointment of a case guardian, and secondly, if in fact that was not accepted, that he was of the opinion and submitted that the matter was not ready to proceed because, as he says, insufficient discovery had taken place, particularly on the part of the respondent husband, and in particular in relation to a trust in which the husband is a discretionary beneficiary.

1. The matter was adjourned again, and was adjourned to 13 June 2012.  The psychiatric report was sought and was filed before the matter came on for hearing on 13 June 2012.  I have read the report –

RECORDED  :  NOT TRANSCRIBED

and in particular at page 8 of the report, at paragraph 4, he says:

At the time I examined [Ms C Hurst], she was fit to provide instructions to her legal representative and in comprehending the advice given.

1. For a considerable period, the wife has put forward that her psychiatric health or medical health is such that she is unable to proceed with the hearing of the application, which she instituted over two years ago.  Since the concerns quite properly expressed by Mr Mylne, who was acting on behalf of the applicant, have not come to fruition, I can, with the greatest respect to him and notwithstanding his impassioned pleas to me, consider that her medical health does not preclude her from giving instructions to her legal advisers.

2. The second point is the question of the discovery.  Orders were made in which the applicant wife was given leave to, in effect, request further amended discovery, and it is alleged that such further amended discovery has been complied with by a bundle of correspondence which, if my memory serves me correctly, is exhibit 1.  The discovery sought by the applicant is, with great respect to the applicant, extensive in the extreme.  I think one of them requests all letters.  That, in itself, I thought is intrusive and fishing, and I would not have allowed it.  However, an enormous amount of material has been supplied to the applicant, and I consider that that was more than adequate to overcome the question of lack of discovery.

3. The matter is comparatively short in history, and I refer to the chronology set out in the summary of argument of the respondent husband filed 8 March 2012.  I have also considered the husband’s balance sheet, and also the wife’s financial statement.

4. The applicant is about 37 years of age.  The respondent is about 51.  They commenced a relationship in Papua New Guinea in or about 1995/1996.  The respondent husband was at that time working in a company known as M Proprietary Limited in Papua New Guinea.  He was a manager in a department of the company.  They moved to Australia in 1996.  The wife, studied toward a degree in discipline X in Cairns, but the husband remained in Papua New Guinea and, as I understand, he worked fly-in fly-out, and he did that approximately a couple of times per month.  The wife then changed her studies to childcare, and she became an Australian citizen in 1997.

5. In 1998 – I think this is of some importance – the applicant and her parents, Mr B Hurst and Ms A Hurst, purchased a property at T Street, Suburb S.  This property is still in existence and looms reasonably large in the property capable of distribution.  They paid a deposit, that is, the wife’s parents paid a deposit, and the balance was borrowed, jointly by the wife and her parents in the sum of about $106,000.  The wife moved into the Suburb S property, and subsequent thereto, in about August 1998, the wife’s parents gave the parties $11,000-odd, which they applied to the home loan.

6. The husband moved from Papua New Guinea in 1999 to Cairns and moved into the Suburb S property with the wife.  He became a manager with D Pty Ltd.  Thereafter, he received income from his position.  This D Pty Ltd, was either controlled by his father and subsequently particularly by his mother.  It seems to have done reasonably well.  In 2000, the husband’s taxable income was about $40,000.

7. Another $1,500 was received from the wife’s parents in 2000, and the wife commenced studying toward a degree in discipline Y.  His income in 2006 went up to about $85,000, and it was at around about this time or just before – no, it was in about – I am terribly sorry.  I have missed one important point, and that was that, in 2001, the wife’s parents paid off the Suburb S home, as I understand, in the joint names of the wife and her parents, and requested that the $87,000 which they paid off be paid by monthly payments of $700.  So this, as I said, looms large, because the husband has indicated, or the respondent has indicated, that he paid off this amount over a period of years by the instalments of $350 per fortnight, which, of course, is more than a monthly payment of $700.

8. In May 2002, the Werner Family Trust was established by way of deed.  One solicitor, Mr O, is the settlor.  The Werner Family Trust is the trustee company.  The first appointor is Ms P Werner, the husband’s mother, and Mr G Werner is the second appointor, the husband’s brother.  He is a beneficiary, as, in fact, was the applicant wife under the trust deed.  Subsequent thereto, not only did the husband receive some distributions from the trust, but as did the wife.  For instance, in 2003, he received $17-odd thousand and the wife received $24,000.  His income was about $76,000 that year.  In 2004, income about $58,000; he did not receive any distribution from the Werner Family Trust; the wife received about $25,000.  His income increased marginally in 2005, where once again he did not receive any distribution, but the wife did in the sum of $17,400.  There is no evidence he has control over the trust, therefore it is a financial resource not an asset (see: Kennon v Spry (2008) 238 CLR 366).

9. The wife completed her degree in discipline Y and was accepted to study toward a degree in discipline Z.  They married in 2006, and the husband continued to live in the Suburb S property while the wife lived in Brisbane, obviously for the purposes of her study.  In 2008, the husband received about $120,000 from the Werner Family Trust; the wife did not receive anything.  In 2009, he became unemployed by H Company or in any other capacity.  Since that time, as I understand, the husband has not sought or been in gainful employment and has been relying upon an amount of approximately $5000 per fortnight paid to him by his mother, the aforesaid Ms P Werner.

10. The applicant’s application was filed on 24 May 2010, in which she sought, inter alia, $700 per week spousal maintenance until she remarried;  the property be divided 60 per cent to the wife and 40 per cent;  and a payment of

    
    

    $2 million.  From there on, there has been one continuous difficulty on the part of the respondent to this application to get the matter on for hearing.  I have referred to the chronology of adjournments, and a lot of them have been late in coming before the court, and on two occasions this year in which the matter came before me for the purposes of trial, the respondent husband has in fact flown from Cairns to have the matter determined, and it was adjourned as a result of the wife’s applications.

11. The property consists of the former matrimonial home at Suburb S.  I say matrimonial home notwithstanding that it was owned by the wife and her parents.  The husband has bought a subsequent house, which is at Suburb E.  He borrowed some $600-odd thousand dollars from his mother for the purchase of that property.  He still owes that amount, having paid little or nothing as by way of diminution in the mortgage.  The mortgage is, as I understand on the evidence before me, at arm’s length, and there is no suggestion at this stage that he will other than have to repay that amount to his mother.  She has, in fact, indicated that.  Other than for matters of a comparatively small ambit, these are the prime assets of the parties.

12. The wife would allege, as I understand, if, in fact, she had given any evidence, which she has not done so, that she has contributed to the acquisition of the properties of the parties or either of them by the distributions of money from her parents to them –  I say “them”, being the applicant and the respondent – particularly insofar as the moneys for the purchase of the Suburb S property, which has not increased to any great extent because, as is said, it has not been adequately maintained.  She would further say that her general assistance to the husband would enable her to look at at least fifty-fifty during the period of cohabitation.  May I say that, in the affidavit of Professor W, in her discussions with him, she says to him at page 3, in the last paragraph:

    …

    She only realised after she separated from her husband just how much he supported her financially and the extent to which her lack of practical living skills compromised her ability to live independently.  She had difficulty with finances.  For example she forgot to pay the motor vehicle insurance and she has been involved in three motor vehicle accidents since she has been separated.

    …

13. I must say that I had overlooked the fact that, subsequent to separation, the respondent was paying the wife something in excess of $200 per week as by way of maintenance. 

RECORDED  :  NOT TRANSCRIBED

I am informed from the bar table that such amount, in effect, of maintenance has ceased.  It is clear to me that there have been some contributions by the applicant to the maintenance of the parties’ estate, but I must say I could not in any way suggest that it would be more than fifty-fifty.

1. What, then, should I look at to say about the applicant’s 75(2) factors?  Subsequent to separation, she was being assisted by the respondent.  He no longer is in employment, and, in effect, has been supporting her with some moneys, which I assume he has been getting from his mother’s largesse of some $2500 per week, and been paying her the amount to which I have here and before referred.  He himself is not in a good position financially notwithstanding he can have the fallback insofar as his family is concerned, and I take that into consideration.  I would think, if anything, notwithstanding the fact she has a degree, I understand, in discipline Y, and she has other educational qualifications, she does not seem to be able to hold down any form of job.  She does refer to, being dispensed with on some occasions, although she has indicated to Professor W that she is now in a more stable situation and is getting on better in her job –

RECORDED  :  NOT TRANSCRIBED

at a supermarket chain.  And she does have some employment.  I have noticed in her financial statement that she has indicated that she is receiving some moneys, albeit that financial statement is getting a little bit tired.

1. The respondent has put forward a draft order in which, in effect, any interest he may have in the Suburb S property be transferred to the wife and any interest she has in the property which he purchased subsequent to separation be transferred to him.  He indicates in his summary that this would work out at around about 80/20 in favour of the wife.  Obviously he takes into consideration the fact that he still owes his mother some $640,000 for the purchase of the Suburb E property.  I discount that to an extent.  But nevertheless, taking into consideration the facts that I have touched upon before, I consider that the draft orders as put forward by the respondent are fit and proper and just and equitable in all the circumstances.

2. However, because of the submissions made by Mr Mylne, I will give the wife a further opportunity, and only one.  That is, I will delay the execution of this order for a period of six weeks and give to her leave to file an application to either set aside the order or to delay the execution of the order subject to her filing in this Court satisfactory evidence.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 14 June 2012.

Associate: 

Date:  14 June 2012