Loomis & Anor and Thurston
[2016] FamCA 975
•17 November 2016
FAMILY COURT OF AUSTRALIA
| LOOMIS AND ANOR & THURSTON | [2016] FamCA 975 |
| FAMILY LAW – PROPERTY – Whether an Order made 5 May 2016 restraining the husband from refinancing a loan such that is has the effect of increasing the debt on UK property should be discharged – Whether the Order should be stayed pending the hearing of an appeal – Where the Order was the subject of an appeal filed by the husband – Where the appeal was deemed abandoned due to the husband’s failure to file the appropriate material – Where there was no evidence as to the merits of the appeal nor as to the merits of reinstating the appeal – Application dismissed. FAMILY LAW – INJUNCTION – Whether the wife should be restrained from contacting tenants of the UK property – Where it was asserted the wife was in contempt by contacting tenants of the property – Where the Orders made 5 May 2016 did not restrain the wife from contacting the tenants – Where there is insufficient evidence to establish the wife should be restrained from contacting the tenants – Application dismissed. FAMILY LAW – INJUNCTION – Whether the husband should be restrained from filing material with this Court in relation to the wife’s mental health – Where such assertions in the context of these property proceedings are emotionally abusive toward the wife – Application granted. |
| Family Law Act 1975 (Cth) ss 4AB and 90SS(5) Domestic and Family Violence Protection Act 2012 (QLD) s 8 |
| Gollings & Scott [2007] FamCA 397 Marker & Marker [1998] FamCA 42 Martin & Newton [2011] FamCAFC 233 |
| FIRST APPLICANT: | Mr Loomis |
| SECOND APPLICANT: | L Ltd |
| RESPONDENT: | Ms Thurston |
| FILE NUMBER: | BRC | 1010 | of | 2012 |
| DATE DELIVERED: | 17 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 14 November 2016 |
REPRESENTATION
| THE FIRST AND SECOND APPLICANTS: | Mr Loomis in Person |
| THE RESPONDENT: | Ms Thurston in Person |
Orders
The Application in a Case filed 8 September 2016 by Mr Loomis and L Ltd is dismissed.
That until further order, Mr Loomis is restrained from asserting that Ms Thurston is mentally ill or unwell in any further affidavits he might file or seek leave to file before the conclusion by final judgment of these proceedings and from exhibiting to any such affidavits, in an attempt to support assertions he makes about her mental health, any articles written about mental health.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & Thurston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1010 of 2012
| Mr Loomis |
First Applicant
And
| L Ltd |
Second Applicant
And
| Ms Thurston |
Respondent
REASONS FOR JUDGMENT
Contested property adjustment proceedings between the parties in this matter were heard over several days in December 2015 and my judgment was reserved at the end of the trial. I have not been able to make final orders and deliver reasons in the matter to this point in time. On 9 May, 2016, I made some interim orders and delivered reasons for them. Those orders appointed an independent expert to take some significant steps in respect of the Self-Managed Superannuation Fund of the applicant and first respondent that I considered absolutely essential before final property adjustment orders could be determined and pronounced. The Self-Managed Superannuation Fund had not been compliant with superannuation regulatory provisions and that needed to be addressed before final orders could be made. Those significant steps have not yet been concluded.
On 5 May, 2016, I also made some other interim orders pending finalisation of the property adjustment proceedings and delivered reasons for those orders. Relevantly, those orders included the following:
1.That until further order, [Mr Loomis] and [L Ltd] shall, as provided for in the order of Judge Howard of the Federal Magistrates Court (as the Federal Circuit Court was then called) of 25 June 2012, be permitted to renegotiate and/or refinance the debt secured by mortgage over the real property situated at [I Street, Town J, County K, UK]. (“the [County K] property”) if necessary to obtain more favourable terms, but, to be clear, the debt owed by [L Ltd] to the mortgagee shall not be increased beyond the amount of the debt actually owing at the time of any such future refinancing.
2. That until further order, [Mr Loomis] and [L Ltd] shall provide [Ms Thurston] with at least three clear weeks’ notice in writing of any intention to enter into any new lease with any of the existing tenants of the [County K] property or with any proposed new tenants of that property with such written notice to include the name or names of the proposed lessees and the proposed terms as to the rental period and rental charges to be provided for in the new lease and [L Ltd] is restrained from entering into any such new lease if that three clear weeks’ notice in writing has not been given to [Ms Thurston].
There is also an order in place, previously made by me, that neither party shall file any further applications in the proceedings without first obtaining my leave. Sometime prior to 8 September 2016, I gave Mr Loomis leave to file an Application in a Case in the proceedings. That Application in a Case was listed for hearing by me on Monday afternoon, 14 November 2016.
In that Application in a Case, Mr Loomis, in his personal capacity, and in his capacity as a Director of L Ltd (a UK registered company) seeks the following orders:
2.That the Orders number 1 and 2 of the Honourable Justice Forrest of the 5th May 2016 are discharged
3.That the Applicant wife is Held in Contempt of the Orders of the Honourable Justice Forrest of the 5th May 2016.
4.In the alternative to Order 2 Sought above that the Orders number 1 and 2 of the Honourable Justice Forrest of the 5th May 2016 are stayed pending the appeal Number NA 34/2016
5.That an injunction is issued compelling the Applicant Wife to inform the tenants of [I Street, Town J, County K, UK] that she acted in error an/or (sic) in contempt of the orders of the Honourable Justice Forrest with such injunction ordered to be in writing forthwith
6.That an injunction is issued and the Applicant Wife is restrained from contacting the tenants of [I Street, Town J, County K, UK]
7.That the second respondent be given leave to file an application for compensatory, examplary and aggravated damages.
(Errors in original)
Ms Thurston opposed the making of any of those orders. In addition to an order dismissing the Application in a Case, she seeks to have the Application in a Case declared an abuse of process and for Mr Loomis to be declared a vexatious litigant. She also seeks an order that restrains Mr Loomis from “making threatening intimidating allegations to or about [her] including but not limited to saying she is a Physco” (sic). Ms Thurston’s Response also included a lot of other orders sought but, at the hearing, she informed the Court she did not press those at this time. Consequently, I will not set those out.
At this point, I observe that both Mr Loomis and Ms Thurston appeared without legal representation, as they have many times before on interim applications in these proceedings.
Mr Loomis’s case
Mr Loomis (and L Ltd through him) read and relied upon three affidavits of evidence sworn and filed by him. Those affidavits were quite lengthy and attached a lot of documents as exhibits. With respect to Mr Loomis, much of the content of the affidavits was irrelevant to the determination of the orders sought by Mr Loomis and L Ltd. Indeed, much of that evidence could readily be described as offensive and was actually inadmissible. As I said when hearing submissions from Ms Thurston, if she had been legally represented she might very well have had a sustainable argument for Mr Loomis to pay her costs in relation to reading and responding to much of that evidence. It should not have been included in the affidavits Mr Loomis prepared and filed.
It became clear fairly quickly when Mr Loomis began making oral submissions to the Court that there were two real issues causing him concern. Firstly, he was troubled by the restraint imposed upon him by the latter part of paragraph 1 of my orders of 5 May, 2016 preventing L Ltd from being able to renegotiate existing loan finance secured by mortgage granted over real property in the UK in a way that allows it to increase the actual liability or, in other words, borrow more funds against the existing equity the company has in the real property such that the equity is reduced. Secondly, he is quite troubled by the fact, admitted by Ms Thurston, that she has contacted tenants of L Ltd’s UK property and the mortgagee of that property and informed them of the existence of the orders I made on 5 May 2016 and that she is seeking final orders from the Court that L Ltd transfer its UK property to her.
Mr Loomis complains that paragraph 1 of my orders of 5 May, 2016 prevents him from borrowing more money, using the equity the company has in that property as security for those further borrowings. In that complaint, he is correct. That is precisely what my first order made on 5 May 2016 was intended to prevent. I gave reasons for that order when I made it. I specifically dealt with this issue and made it clear that my orders were intended to prevent L Ltd accessing more equity in the property in any refinancing of the existing debt.
I am now aware, from the evidence adduced and confirmed orally by Mr Loomis, that he filed an appeal against that order and the order contained in the second paragraph of the orders made on 5 May 2016. That, of course, was his right. It is also clear that his appeal was deemed abandoned when he failed to file the required appeal books. Now, Mr Loomis tells the Court that he is considering making application to reinstate the appeal but that his decision to do so or not will depend upon the outcome of this Application in a Case.
In his oral submissions, Mr Loomis informed the Court that he only wanted the words “but, to be clear, the debt owed by L Ltd to the mortgagee shall not be increased beyond the amount of the debt actually owing at the time of any such future refinancing” to be excised from paragraph 1 of the May 5 orders. Although he did not make much reference to the evidence that he relies upon to support such an argument, he did point to some documents that he exhibited to his affidavit filed on 9 November, 2016. Exhibited and marked KJL-10 is a bundle of documents. The documents in that bundle are emails, letters and invoices that all pre-date my May 5, 2016 orders. They reflect liability asserted by an organisation called JN Trust to be owed to it by L Ltd. Mr Loomis says in his affidavit of 9 November that the “debt to JN Trust is growing exponentially” and points to their letters and emails as evidence of an expressed intention on the part of the JN Trust to “invoke their powers to replace the Directors of L Ltd and administer the business themselves”.
I understood Mr Loomis as saying that he now wants L Ltd to be able to borrow further funds against the equity in the property to pay out the debt owing to JN Trust. That is what I understand to be his reason for wanting the Court to discharge the last words of paragraph 1 of the order of 5 May 2016.
However, I observe that when I determined Ms Thurston’s application for interim orders on 5 May 2016, I refused to issue an injunction that she sought restraining L Ltd from paying its creditors, including JN Trust, in the ordinary course of its business. I noted in my reasons at [42]-[43] that Mr Loomis submitted that L Ltd ought to be able to continue to make payments to its creditors in the ordinary course of its business and I accepted that submission.
Mr Loomis’s appeal against my orders was deemed abandoned. Now he informs the Court that he wants the Court to discharge that part of the order that he is now unhappy with or he will seek to have his appeal reinstated. In support of the submission that the Court should discharge that part of the order that he is now unhappy with, he referred to some Full Court decisions. He submitted that they were “authority” for the proposition that the Court should discharge the order as he seeks.
Mr Loomis referred the Court to Gollings & Scott [2007] FamCA 397, in particular paragraph [46]; Martin & Newton [2011] FamCAFC 233, in particular paragraph [218]; and Marker & Marker [1998] FamCA 42, in particular at paragraph [79]. With respect to Mr Loomis, I could find no paragraph [79] in Marker. Nevertheless, Mr Loomis quoted the often cited passage found at paragraph 2.11 in Marker, namely:
Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once the marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial judge.
I understood his submission to be that the principles pronounced in those cases support a position that L Ltd should now be permitted to freely go about its business, without restraint, using its assets as security to increase its liability for recurrent debt in order to pay out creditors.
With respect to Mr Loomis, I do not accept his submission. I consider that cited passage and those cases he referred the Court to, to pronounce principles applying to the determination of the question of whether or not notional amounts ought to be “added back” to a pool of property that is being considered for property adjustment to justly and equitably deal with post-separation/pre-determination expenditure by one or both parties.
The restraint imposed upon L Ltd by Judge Howard in 2014, confirmed and clearly restated by me in May this year, is intended, as far as possible, to preserve equity in the real property in the UK that L Ltd owns, pending final determination of the property adjustment proceedings between Mr Loomis and Ms Thurston. It is about asset preservation in circumstances where, (1) I am quite satisfied (as I am reasonably sure Judge Howard was, too) that L Ltd is truly controlled by Mr Loomis and treated as his entity, regardless of what ownership and control structures it presents to the world, and (2) Mr Loomis has demonstrated that, left unrestrained, there is real risk that he would dissipate the equity in the property, seriously impacting upon the Court’s ability to be able to make property adjustment orders in these proceedings that are just and equitable.
With respect to Mr Loomis, I consider his reliance upon the cited authorities and the principles contained in them to be misguided. Nothing Mr Loomis submitted to the Court or referred to in his evidence persuaded me to the view that the particular restraint imposed upon L Ltd ought not remain in place. I will not discharge paragraph 1 of the order of 5 May 2016 or any part of it.
In the Application in a Case, Mr Loomis and L Ltd sought, as an alternative to the discharge sought, that paragraphs 1 and 2 of the May 5 orders be stayed pending appeal. In dealing with this, I observe, firstly, that Mr Loomis quickly conceded that he actually has no objection to paragraph 2 of the orders remaining in place. Secondly, as I have pointed out, the appeal that Mr Loomis and L Ltd previously filed has been deemed abandoned. It is no longer extant. I will not consider an application to stay orders that I have previously made pending an appeal that has been deemed abandoned and is not extant. In any event, Mr Loomis did not take me to a Notice of Appeal and he made no submissions referencing the merits of the appeal or the merits of any prospective application for reinstatement of his appeal deemed abandoned. I simply cannot grant the stay he seeks in such circumstances.
As to that part of the Application in a Case in which he seeks that Ms Thurston be held in contempt of the Court’s orders of 5 May 2016, again Mr Loomis is, with respect, completely misguided in his approach. He submitted that Ms Thurston has “gone outside the scope of the orders and caused financial damage to the company” in her contact with tenants of L Ltd’s UK property. It is that and nothing more that he says supports a finding that she is in contempt of the Court’s orders.
The orders of 5 May 2016 imposed no obligations upon Ms Thurston at all. Those orders imposed no restraint upon her. In particular, she was not restrained from making contact with the tenants of the UK property. Whether that was a good idea or an appropriate thing for her to do is, of course, another matter. Evidence of her Facebook and email communication with some of the tenants has been adduced into evidence. By that communication, Ms Thurston is essentially advising the tenants that there are proceedings currently on foot in this Court in which the ownership of the UK property is in issue and in which orders have been made putting obligations and restraints upon Mr Loomis and L Ltd in respect of dealings with the tenants and the property. Whilst her communications could certainly have been better worded and less confronting for the tenants, her actions give me no cause to consider that she should be “held in contempt” of the Court.
Mr Loomis and L Ltd go further in the orders that they seek. They ask for an injunction to issue mandating further contact by Ms Thurston with the tenants of the UK property informing them that she “acted in error an/or (sic) in contempt of” the Court’s orders. In apparent contrast, they then also ask for her to be restrained from contacting the tenants of the UK property. With respect to Mr Loomis, I interpret that inconsistency to be explained by a simple failure to make it plainly clear that the injunction restraining contact with the tenants is meant to refer to further contact with them after she has first acted to inform them of her error or contempt.
Ms Thurston was not restrained or prevented from contacting tenants. She was not in contempt of this Court by doing so. She has, on the evidence of the written communications I have seen, not told them anything that is clearly wrong. Indeed she did say that she valued their tenancies. Whilst a better course might have been mutual communication with the tenants by Mr Loomis and Ms Thurston in an agreed format, my understanding of their personalities and the state of their relationship informs me that is a most unlikely thing to expect ever to happen. Nevertheless, I am not persuaded on the evidence or by Mr Loomis’s submissions that Ms Thurston should be ordered to contact the tenants again to make any retraction, apology or correction.
Should she be restrained from making contact with any of the tenants in the future? I have seen nothing in the evidence put before the Court and heard nothing in the submissions from Mr Loomis that persuades me that Ms Thurston should be restrained from any further contact with any of the tenants. Mr Loomis asserts that he is unable to make or generate contact with any of his tenants since Ms Thurston’s contact with some of them. That is his assertion, with little in the way of credible evidence adduced to support it. In any event, he has not given evidence that default has occurred in the payment of rent by any of his tenants. In fact, he orally confirmed that rent is still being received by L Ltd as expected. He simply complains that efforts to renegotiate new leases seem to be stifled. In my judgment, those are matters for him in his commercial dealings with his tenants. A credible agent of the company on the ground in the UK might make a difference, but as I have said, those are matters for Mr Loomis. I will not be issuing an injunction at this point in time restraining Ms Thurston from contact with tenants.
The Application in a Case finally seeks leave for L Ltd to “file an application for compensatory, exemplary (sic) and aggravated damages”. At the conclusion of his oral submissions, when asked about this application, Mr Loomis said “that well may be unnecessary if we can overcome the problem of the tenants not signing the lease”. I understood that to be a concession that such leave was not being sought. I will not be granting it.
Ms Thurston’s case
I will be dismissing the Application in a Case filed by Mr Loomis and L Ltd. That is what Ms Thurston sought. However, as I have already noted, she also asked for some other orders, including that Mr Loomis be declared a vexatious litigant.
I have also already observed that there is an order in place that requires each party to obtain leave from the Court before each can file an application. That became necessary as a result of the sheer volume of applications that were being filed by each party in these proceedings. Given that order is in place still, I do not consider it necessary or appropriate to declare Mr Loomis vexatious at this point in time and whilst the Application in a Case filed by Mr Loomis and L Ltd has been wholly unsuccessful, I see no merit in declaring it an abuse of process. I will not be doing that either.
Mr Loomis has constantly made allegations throughout these proceedings that Ms Thurston is afflicted with emotional and mental health issues. He exhibited to one of the affidavits he filed in support of this Application an inadmissible article downloaded from the internet about psychopathy, clearly referencing Ms Thurston. Ms Thurston complains about this conduct and, in my judgment, does so with some justification. Ms Thurston says that she finds Mr Loomis’s actions “threatening, inadmissible, slanderous and intimidating”. She says he is using the Court to “commit domestic violence” and that this is a clear abuse of process.
The term “Family violence” is defined in the Family Law Act 1975 (Cth) in s 4AB. It means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples given include “repeated derogatory taunts”.
In the Queensland Domestic and Family Violence Protection Act 2012, “domestic violence” is defined in s 8 to mean, relevantly, “behaviour by a person towards another person with whom the first person is in a relevant relationship that … is emotionally or psychologically abusive … or threatening”.
The question of Ms Thurston’s mental health, in so far as it was relevant, I understand was dealt with through a report from a psychiatrist adduced in evidence in contested parenting proceedings in the Federal Circuit Court that culminated in an order that the child of Ms Thurston and Mr Loomis live with Ms Thurston. I have seen no evidence that Judge Howard, who determined that case, made any adverse findings about Ms Thurston’s mental health. I do consider Mr Loomis’s continued assertions, even though the trial in the property adjustment proceedings has concluded, that Ms Thurston is mentally unwell is emotionally abusive to Ms Thurston. I am also satisfied that Mr Loomis is well aware that he is being abusive of Ms Thurston when he makes such assertions and exhibits articles such as the article on psychopathy. Ms Thurston’s submission that the Court’s process should not be used by Mr Loomis to effectively abuse her in this way also has merit.
Satisfied that the Court cannot simply rely upon Mr Loomis’s goodwill and understanding to cease and desist from making further unfounded allegations about Ms Thurston’s mental health, I will make an order restraining him from asserting that Ms Thurston is mentally ill or unwell in any further affidavits he might file or seek leave to file before the conclusion by final judgment of these proceedings and from exhibiting to any such affidavits in an attempt to support assertions he makes, any articles about mental health. I rely on s 90SS(5) of the Act as the source of my power to do so, considering it just to do so.
The only other order Ms Thurston sought in the end was leave to file a Contravention Application against Mr Loomis. I informed the parties that it is my current intention not to entertain any contravention applications (Mr Loomis says he has several he wants heard and determined) until final property adjustment orders have been made. I made it clear that each would be given an opportunity at that time to seek leave to file contravention applications and that I would hear and determine any they are given leave to file in a distinct hearing that would be listed thereafter. Ms Thurston expressed acceptance of that approach.
I make the orders set out at the commencement of these reasons.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 November 2016.
Associate:
Date: 17 November 2016
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