KUCHELS-LEWIS & LEWIS-GRIFFITHS

[2015] FamCA 987

FAMILY COURT OF AUSTRALIA

KUCHELS-LEWIS & LEWIS-GRIFFITHS [2015] FamCA 987

FAMILY LAW – PROPERTY – interim orders – where the parties are in significant dispute – where the applicant seeks further disclosure – where the applicant seeks access to the business premises for the purpose of taking photographs and collecting personal items – where the respondent seeks an order permitting sale of business items in order to pay debts of the business – where the respondent seeks engagement of an accountant to prepare financial statements and tax returns – where each party is retrained from contacting the other but for through solicitors – where further discovery is ordered – where further consideration of the application in a case and response is adjourned to the Registrar – where further consideration of costs is adjourned to the trial.
APPLICANT:	Mr Kuchels-Lewis
RESPONDENT:	Ms Lewis-Griffiths

FILE NUMBER: ADC 1266 of 2014

DATE DELIVERED: 5 November 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 5 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGinn

SOLICITOR FOR THE APPLICANT: Howe Jenkin

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. Each party is restrained and an injunction is granted restraining each of them from contacting the other in any manner directly or indirectly apart from correspondence through and communications through the applicant’s (Ms Lewis-Griffiths) solicitors.

2. Within twenty-one [21] days the respondent provide in writing to the applicant’s solicitors details of and copies of all documents in his possession relating to his income received since April 2013 including rental income received from the Suburb A and Suburb B properties and from solar panels connected to the Suburb B property.

3. Within twenty-one [21] days the applicant deliver through the applicant’s solicitors to the respondent copies of all business documents relating to the C Pty Ltd business in her power, possession or control relating to any period since April 2013.

4. Within twenty-one [21] days the respondent deliver to the applicant’s solicitors copies of all business documents relating to the C Pty Ltd business for any period since April 2013.

5. The application in a case filed by Mr Kuchels-Lewis on 18 September 2015 is dismissed SAVE AND EXCEPT paragraph 11 of the Response filed by Ms Lewis-Griffiths on 14 October 2015 is adjourned for further consideration to the Registrar when preparing the matter for final hearing.

6. Further consideration of the question of costs of the applicant and respondent is adjourned to the determination at the final hearing of the matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kuchels-Lewis & Lewis-Griffiths has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1266 of 2014

Mr Kuchels-Lewis

Applicant

And

Ms Lewis-Griffiths

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The orders sought refer to the Application in a Case filed by the respondent, Mr Kuchels-Lewis, on 18 September 2015 and the Response to the Application in a Case filed by Ms Lewis-Griffiths on 14 October 2015.  In the original proceedings, Ms Lewis-Griffiths is the applicant and Mr Kuchels-Lewis is the respondent.

2. The issues are such that it is inappropriate to refer to the parties as the husband and the wife.  The orders sought by Mr Kuchels-Lewis in the Application in a Case are contained in document 26 and the response orders sought in document 28.  A lot of the orders relate to the specific orders of Judge Kelly made on 17 April 2014 (which were orders made when the proceedings were in that Court) and the orders of Judge Kelly of 5 May 2015 (being the orders made by consent).

3. The orders of 17 April 2014 state:

   THE COURT ORDERS UNTIL FURTHER ORDER THAT:

   1.Each party is restrained from selling, disposing of, or in any way dealing with, assets owned by each of them (or by any entity under that party’s control) SAVE and except where such sale or dealing takes place by agreement between the parties as confirmed in writing by their legal representatives.

   2.The Respondent is restrained from entering upon the business premises known as “The C Pty Ltd”, C Town.

   3.The Respondent is at liberty to attend at the premises of “The C Pty Ltd” to inspect the premises and assets or stock held within the premises at a time and date to be negotiated and confirm in writing between the parties’ legal representatives with each party at liberty to nominate an agent or representative to attend during the Respondent’s visit to the said premises.

   4.Each party is restrained from:

   (a)telephoning, text messaging, emailing, contacting or approaching the other party save and except through their legal representatives;

   (b)abusing, criticising or threatening the other party whether directly or via any third person;

   (c)communicating with the other or discussing the other party or these proceedings via Facebook or by any other electronic or social media website.

   5.On or before 30 May 2014 the Applicant file an Amended Application, Financial Statement and a further Affidavit clarifying the following:

   (a)evidence relevant to jurisdiction and the date of separation;

   (b)evidence clarifying the basis of the injunctive Orders sought;

   (c)further evidence relevant to the Application for property settlement.

   6.The Respondent file and serve his Response, answering Affidavit and Financial Statement on or before 20 June 2014.

   7.The matter is adjourned to 8 July 2014 at 9.30am for further mention.”

1. The orders of 5 May 2015 state:

   UPON NOTING that the respondent:

   A.    Without admission, gives an undertaking that he shall not harass, annoy or approach the applicant whilst in [C Town] and that he shall not remove or move any items unless otherwise agreed in writing between the parties solicitors as provided for in these orders; and

   B.    Shall be at liberty to reside in the [D Street] premises for the purposes of attending at [C Town] pursuant to these orders (it being noted that [D Street] has no electricity or bedding).

   BY CONSENT IT IS ORDERED:-

   1.    That the trial of all matters including property settlement and jurisdictional issues be adjourned to 16, 17, 18 & 19 February 2016 at 10.00am and listed with priority.

   2.    That the parties obtain a joint valuation of:

   2.1.   the [Suburb A] property;

   2.2.   the [Suburb B] property;

   2.3.   the properties in [C Town] being the [C Pty Ltd] premises, the two caravans, the trucks at [C Town], the premises styled [D Street] and [E Street] and the swim spa;

   2.4.   by way of consequential arrangement for the valuation of [C Pty Ltd] premises, the premises styled [D Street] and [E Street] and other assets in [C Town] being done by the provision of the agreed photographs to the valuer;

   2.5.   the … truck;

   2.6.   the [motor vehicle]; and

   2.7.   the box trailer.

   3.    The valuer shall be Mr F or his nominee.

   4.    That the parties do each pay half of the said valuation fees.

   5.    That the parties do all things to authorise Mr G to;

   5.1.   complete the 2015 financial statements and tax returns for [H Pty Ltd], [I Pty Ltd], [Kuchels-Lewis Family Trust], [I Trust] and each of the parties.

   5.2.   to provide an estimate as to the approximate Capital Gains Tax liability that may arise upon the sale of the [Suburb B, Suburb A] and/or the [C Town] premises and how it may be ameliorated.  

   6.    That the parties each pay an equal half share of such calculations by [Mr G].

   7.    That the parties do give discovery on oath within 42 days of the respondent’s visit to [C Town] of all documents relevant to the proceedings.

   8.    That the applicant do give discovery of all documents and account statements relating to the sale of a bulldozer and the receipt and application of its proceeds, and the payment for solar panels on the [Suburb A] and [Suburb B] properties.

   9.    That the respondent do give discovery of all documents and records relating to the purchase, financing and installation of solar panels on the [Suburb A] and [Suburb B] properties.

   10.            That the respondent be at liberty to attend at all [C Town] premises at such time as agreed upon with at least 21 days’ notice to be confirmed in writing between the parties’ legal representatives with each party to be at liberty to nominate an agent or representative to attend during the respondent’s visit for the purposes of:

   10.1.           taking photographs of each of the premises, sheds, vehicles and contents at [C Town]; and

   10.2.           collecting his personal items which items shall have been agreed in writing between the parties legal representatives at least 21 days prior to the respondent’s attendance in [C Town].

   11.            That the respondent file and serve a Financial Statement within 28 days of his visit to [C Town].

   12.            That the matter be adjourned for directions to 9 November 2015 at 9:30am.”

2. The current Application in a Case before me seeks orders in relation to order number 1 “the applicant disclose immediately, provide details of any and all assets sold to date, including but not limited to bulldozer, van, swim spa, fuel tanker, industrial welder, trailer and any sales made of business assets”. 

3. Orders of this Court made on 13 October 2015 dealt with certain of those matters, although there are still issues remaining in relation to ongoing disclosure and what has happened to the proceeds of sale.  While some information has been provided, Mr Kuchels-Lewis does not accept that that is sufficient to explain the final use of the funds. 

4. Order number 2 seeks that the applicant disclose the amount of business debt that remains.  The subsequent orders which were made provided for current bank statements and the bank statements of the debt of the C Pty Ltd to be provided to the applicant in these proceedings and orders were made in relation to provision of the ownership and sale of the bulldozer and associated equipment.

5. There were also orders made in relation to the disclosure of business matters in relation to I Trust Proprietary Limited and a further matter was adjourned.  I have now before me the outstanding issues. 

6. The Application in a Case referred to the disclosure of the business debt that remains.  Currently, the material which is before the Court in the affidavit supplied by the respondent indicates that tax returns have been prepared for the year ended 30 June 2014 for most of the entities, but the actual accounts supporting 2014 are not attached to the affidavit (but the 2013 material is).

7. It is clear from the submissions and the affidavit material before me that the parties are not able to agree the accuracy of any of the assumptions made in relation to the running of the business, nor the disposal of the assets, nor amount of the debts.  The application in relation to the Application in a Case seeks “that the respondent be permitted to attend at [C Town] to take possession of all of his personal items as described in the affidavit supporting this application”. 

8. This issue has been the subject of considerable disagreement between the parties over a considerable period of time.  There were specific orders made which provided for Mr Kuchels-Lewis, on certain conditions, to be able to attend upon the property at C Town.  (This is now paragraph 10 of the order of 5 May 2015):

   10.          That the respondent be at liberty to attend at all [C Town] premises at such time as agreed upon with [sic] at least 21 days notice to be confirmed in writing between the parties’ legal representatives with each party being at liberty to nominate an agent or representative to attend during the respondent’s visits for the purposes of:

   10.1  taking photographs of each of the premises sheds, vehicles and contents of [C Town];

   10.2  collecting his personal items, which items shall have been agreed in writing between the parties’ legal representatives at least 21 days prior to the respondent’s attendance in [C Town].

9. There have been attempts to comply with that order, but the parties have been unable to agree the first step, namely, the list of items to be agreed in writing between the parties.  I stood the matter down for a considerable period of time this morning in an effort to see if the parties could agree upon the list of items to be collected, but that was not possible and that still remains in dispute.  There is no way that the Court can, without more evidence determine which of the items are those which should be collected and retained by Mr Kuchels-Lewis and which should not.

10. The only way of resolving that difficulty would be for the parties to provide material to the Court so that the Court could determine even on an interim basis and (as will obviously be necessary) on a final basis what the material is. 

11. That issue is connected to the response filed in which Ms Lewis-Griffiths is seeking permission to sell items of the business to pay debts of the business which she says is now necessary.  In relation to the items which are retained by either party or sold in relation to the business, there would normally be some sensible agreement able to be reached.  That appears not to be the case in this matter.

12. The parties will have to file appropriate evidence which would allow the Court to make the decision that the parties are unable to make. 

13. The difficulty that has been occurring between the parties and their allegations about each other are such that it is not at this stage appropriate to make any other order to vary the order of paragraph 10 made by consent on 5 May 2015, save and except that Mr Kuchels-Lewis is now unrepresented. 

14. The reference to his legal representatives is not appropriate, so that the arrangements in paragraph 10 are varied to provide for the confirmation to be between the applicant, Ms Lewis-Griffiths’ solicitors and the respondent, Mr Kuchels-Lewis in relation to both the arrangements for the date of attendance upon the C Town property and for the agreement in relation to the personal items to be collected.  To that extent, therefore, the order is varied, but only to that extent.

15. The order at paragraph 6 says that the applicant deliver up forthwith the respondent’s filing cabinet and personal papers.  That order was made.  The allegation of Mr Kuchels-Lewis now is that the filing cabinet was delivered to the front part of the property in the street, according to the photograph he has annexed, not actually to the property at J Street in accordance with the order.  The order also refers to “and enclosures” relating to the request of Mr Kuchels-Lewis for the delivery up of his personal papers.

16. The order was made referring to “the enclosures” and that order remains extant and should be obeyed.  If there are enclosures which were removed and that later transpires to be the case, then there will be significant issues. 

17. In relation to documents in each of the party’s possession, the rules and the law provide for each party to provide the other with all relevant material.  It will be appropriate also to return all personal paper material to the owner of that property.  Therefore it is not necessary for me to make an order in relation to that.  The issues will be dealt with at the final hearing of this matter if orders of the Court have not been obeyed.

18. Paragraph 7 seeks that the applicant provide/release all financials for all partnership businesses including, but not limited to, I Trust Proprietary Limited and itemised credit card statements for the purposes of forwarding to the Tax Department.  In relation to the orders that were made, it was further ordered on 13 October 2015 that within 24 hours Ms Lewis-Griffiths was to authorise Mr G to disclose all business matters as requested, including all information concerning I Trust Proprietary Limited upon noting the issue of costs of the same to be determined at a later date.

19. It was also ordered that all bank statements of the debt of the C Pty Ltd were to be provided within 14 days and copies of all documents in relation to the ownership and the sale and associated equipment were also to be provided.  Therefore, the orders that are sought in relation to paragraph 7 are no longer necessary, orders having been made on 13 October 2015. 

20. Paragraph 8 seeks that the applicant be restrained from accessing private and personal information of the respondent. 

21. That is not the type of order that could be made, being too wide, in general terms, but it is, in any event, covered by the laws which usually relate to accessing private and personal information.  Therefore, such an order is not necessary.

22. Paragraph 9 seeks that the applicant be restrained from contacting the respondent in any matter directly or indirectly apart from through her solicitor.  That is not opposed.

23. In relation to paragraph 10, the order was sought that the paragraph (6) of the orders of 15 May be varied to provide that the applicant bear the sole cost of the accountant fees relating to compliance with paragraph (5) of the orders. 

24. This application, which was opposed, deals with the orders made on 5 May 2015, which provided for Mr G to complete the 2015 financial statements and tax returns for H Proprietary Limited, I Proprietary Limited, Kuchels-Lewis Family Trust, I Trust and each of the parties.

25. Paragraph 5.2 required him to provide an estimate as to the approximate capital gains tax liability that may arise upon the same of the Suburb B, Suburb A and/or C Town premises how it may be ameliorated. 

26. Paragraph 6 was:

    That the parties each pay an equal half share of such calculations by [Mr G].

27. The wording of paragraph 6 is somewhat difficult in that it refers to paying an equal half share of “such calculations” by Mr G and may not, on the face of it, also refer to the completion of the 2015 financial statements and tax returns for the numerous entities and each of the parties, but may relate to the estimate of the approximately capital gains tax that may arise.  The order has been interpreted by the parties to apply to all of the matters referred to in paragraph 5.

28. The basis upon which the application is made by Mr Kuchels-Lewis is that Ms Lewis-Griffiths, has had the control of the business, has sold assets and that he does not have means available to him to meet the cost.  That is not accepted by Ms Lewis-Griffiths, the applicant in the overall proceedings.  She seeks not only to maintain that order but seeks a further order that Mr Kuchels-Lewis meet the costs of previously-prepared returns.  I will deal with that latter application later.

29. The material provided by Mr Kuchels-Lewis in support of the application to alter the order to provide for Ms Lewis-Griffiths to meet all of the payments is set out in the affidavit upon which he relies.  That material is not accepted as sufficient to vary the order which was made on 5 May 2015. 

30. As there is considerable dispute about the assets and liabilities of both of the parties and the entities under which they have had various control over the years and recently, I am not in a position to make a determination which would allow me to say that the interim orders, by way of injunctions or contributions to procedural matters, would be just and equitable in all the circumstances.

31. It will, of course be possible, when all of the evidence has been heard and tested, to adjust various interim orders to ensure that the overall equity and justice is achieved when the final facts are determined.  Therefore, save and except as to the orders that I have made in relation to the injunctions, the Application in a Case is dismissed.

32. The Response to the Application in a Case seeks various orders.  The orders first sought relate to dismissal of the Application in a Case and costs.  I deal with costs later. 

1. Paragraph 3 seeks that the respondent forthwith and within seven days sign the joint correspondence to Mr G, of K Accountants, dated 10 August 2015, previously provided to the respondent requesting “the preparation of the following”.  It then refers to the completion of the 2015 financial statements and tax returns for H Proprietary Limited;  I Proprietary Limited;  the Kuchels-Lewis Family Trust; and I Trust; 

2. It also includes in sub-paragraph 3.2, individual tax returns for the applicant and the respondent;  sub-paragraph 3.3, an estimate as to the approximate capital gains tax that may arise upon the sale of the Suburb B property, the Suburb A property and/or premises at C Town, together with advice as to how those taxation liabilities may be ameliorated.

3. The orders in relation to sub-paragraph 3.3 are very similar to the orders which were previously made.  The difficulty with the orders sought in paragraph 3 is that Mr Kuchels-Lewis does not agree with the material contained in the financial statements and tax returns for the various entities.  He alleges that he has not been supplied with sufficient information to cover the same.  Therefore, ordering him to sign documents which would then be provided to the taxation department at this interim stage is not appropriate, nor just and equitable for the Court so to do.

4. Paragraph 4 seeks that the parties do equally share the fees of Mr G in relation to the preparation of the 2013, 2014 and 2015 financial statements and tax returns for the various entities and to equally share the cost of the work to be completed by Mr G provided for in paragraph 3.  Paragraph 3 relates to the 2015 financial statements and tax returns.  The somewhat convoluted wording of paragraphs 3 and 4 is not helpful. 

5. As I have indicated, requiring the husband to sign documents with which he does not necessarily agree is not something that the Court can do on an interim basis.  Similarly, in relation to the preparation of the accounts for 2013 and 2014, it would appear from the material before the Court that those accounts were prepared by Mr G on the sole instructions of Ms Lewis-Griffiths and without any input from Mr Kuchels-Lewis, and that the 2015 financial statements would be similarly prepared (it having been asserted that the businesses to which they relate and the entities to which they relate have all been under the control of Ms Lewis-Griffiths, most definitely for the 2015 financial year).  I therefore decline to make that order.

6. Paragraph 5 seeks that paragraph (1) of the order, by way of injunction made by Judge Kelly in the Federal Circuit Court on 17 April 2014, be varied to enable the applicant to sell the plant and equipment of the C Pty Ltd business, including D Street and E Street and the proceeds of sale be applied, in the first instance, to the payment of the credit card debt.

7. Paragraph 6 is in the alternative to paragraph 5 and seeks that pursuant to paragraph 2.4 of Judge Kelly on 5 May 2015, the applicant to provide to Mr F or his nominee, photographs of the properties and plant and equipment of the C Pty Ltd business in C Town, together with the 2014 depreciation schedule and balance sheet of I Trust for the purposes of the valuations.

8. In relation to paragraph 5, the difficulty with making such an order on an interim basis which is opposed strongly by Mr Kuchels-Lewis, is that it leaves open to the applicant to sell plant and equipment at a price and in a manner she chooses, including properties described as D Street and E Street without any specific control whatsoever by the respondent, and that the proceeds of sale be applied, in the first instance, to the payment of a credit card debt which was asserted to be in excess of $120,000, but which was alleged by the husband not to have been reduced upon the sale of the equipment for which she received $66,000.  Again this is not an issue which I can determine on this interim basis, bearing in mind the extreme amount of factual material which is disputed.

9. Paragraph 6 relates to Mr F receiving photographs and the balance sheet of the items for the purposes of valuations.  Orders have already been made and on this basis.  Because of the difficulty the parties have agreeing matters, I cannot see the benefit particularly in relation to the issue of the quality of the photographs which have been suggested be provided.

10. Paragraph 7 seeks a variation of the orders made by Judge Kelly on 10 August 2015 to require the date and time for the respondent’s attendance at C Town to be agreed.  It is not likely that the parties will agree the items to be collected and, therefore, it is inappropriate at this stage to make an order in those terms requiring the parties to agree a date and time.  Specifically, there has been an order made that Mr Kuchels-Lewis provide 21 days’ notice of his intention to attend and that would seem to cover the need to be provided notice to the applicant if and when the parties agree on the items to be collected.

11. Paragraph 8 seeks that, within 14 days, the respondent provide in writing to the applicant’s solicitors, details of and all documents in his possession relating to his income received since April 2013, including rental income received from the Suburb A and Suburb B properties and from solar panels connected to the Suburb B property.  This order is merely supplemental to the obligations of both of the parties to provide the other party with all documents relevant to the issues to be determined in this dispute.  Such an order is appropriate.  However, the same should be made over the period of 21 days. 

12. The next order sought was that within three days, the respondent deliver up to the applicant solicitors’ office all business documents relating to C Pty Ltd business removed by him from C Town in or about April 2013.  This order appears to relate to documents which were allegedly removed.  Both parties have an obligation to provide to the other copies of all documents in their power, possession or control in relation to matters concerning this litigation. 

13. The business of C Pty Ltd and the value of it and its debts is a significant factor in this litigation.  It is, however, of note that the applicant has already filed and provided copies of C Pty Ltd financial statements up to and including 30 June 2014, which may indicate some basis upon which further evidence would need to be given when the matter comes before the Court.

14. I will make an order that the applicant, within 21 days, deliver through the applicant’s solicitors to the respondent copies of all business documents relating to C Pty Ltd in her power, possession or control relating to the period from April 2013, and, similarly, that within 21 days, the respondent deliver to the applicant’s solicitors’ office copies of all business documents relating to C Pty Ltd business from any period since April 2013.

15. The further order sought is that within three business days, the respondent do deliver up to the applicant’s solicitors’ office all keys relating to the Hino truck situated at the Suburb A property, and the motor vehicle in the applicant’s possession. 

16. There is no further order sought as to what was to happen to those items, but I was told from the bar table that the wife wanted to use them in relation to C Town business and her proposed winding up of the C Town business and may consider selling them.

17. The respondent in the interim proceedings, Ms Lewis-Griffiths, has retained the truck and motor vehicle.  These are factors which can be taken into account.  Any losses made by the retention of those will be taken into account on hearing all of the evidence.  I am not satisfied that the material before the Court is evidence which justifies the orders sought in paragraph 10 and do not make the same.

18. Paragraph 11 seeks that within 14 days of the receipt of the valuations from Mr F or his nominee pursuant to paragraph 2 of the 5 May order 2015, the applicant forward to the respondent a balance sheet of the parties’ assets, liabilities and resources, and within 14 days of forwarding the balance sheet, the respondent mark up on the balance sheet those items with which he disagrees, either as to an item being included in the balance sheet or its value, and add to the balance sheet or the same form of balance sheet any asset which he says has been omitted and assertions to the values of such (and 11.2.3) he will return the marked up balance sheet and the addition to the applicant’s solicitors.

19. That is an order of an appropriate nature, particularly bearing in mind the difficulties the parties have had in agreeing almost anything in this litigation, but it is an order which should be considered by the Registrar when the matter is being prepared for the listing of the matter for trial.  Therefore, I adjourn paragraph 11 to the Registrar for consideration when directions are being made to prepare the matter for final hearing.

20. In relation to the question of costs of the Response to the Application in a Case, it is correct to say that I have made some of the orders in the matter, but I have not made many of the orders in the response.  It is also difficult at this stage to take into account accurately the financial circumstances of the parties, which is one of the significant matters to consider under section 117.  Therefore, I will not make any order for costs but adjourn further consideration of the question of costs in the application and Response to the determination upon the final hearing of the trial.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 November 2015.

Associate: 

Date:  11 November 2015