Menzies and Menzies

[2012] FamCA 618

FAMILY COURT OF AUSTRALIA

MENZIES & MENZIES [2012] FamCA 618

FAMILY LAW - COSTS - Where the Wife is seeking $44,000.00 to fund her legal costs - Where the Husband consents to a lesser amount - Where the Husband seeks that the payment be characterised as a property settlement - Where legal representatives for the Husband concede there is no prejudice to the Husband in reserving the characterisation of any payment to the trial

Family Law Act 1975 (Cth)

APPLICANT: Mr Menzies

RESPONDENT: Ms Menzies

FILE NUMBER: BRC 1321 of 2012

DATE DELIVERED: 30 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 30 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Holloway Jenkins

SOLICITOR FOR THE RESPONDENT: Fox & Thomas Solicitors

Orders

1. Forthwith the Husband and Wife do all acts and things necessary to authorise Fox and Thomas to pay from the funds held in their trust account on behalf of the Husband and Wife, the sum of $1,293.60 for payment out to the D Society on account of the trustee for the Menzies Family Trust.

1. Forthwith the Husband and Wife do all acts and things necessary to authorise Fox and Thomas to set aside the sum of $5,000 in a separate account in their trust account (unit account) for the purpose of payment to the bank on account of the rate saver investment home loan summary account No. …504 held in the name of Menzies Pty Ltd (loan) a sum of nor more than $1,030.73 per month, being the interest payable in respect of the loan.

Disclosure

1. The Husband, within 28 days of the date of these Orders, provide to the Wife’s solicitors:

   (a)       All documents or copies of documents evidencing the funds received by the Husband from the estate of his late mother;

   (b)       All documents or copies of documents evidencing the number and type of sheep sold by the Husband to the extent that he received $8,033 from Landmark.

1. Should the following yet to be disclosed by the Husband remain in his possession, the Husband shall provide to the Wife within 28 days:

   (a)       Copies of all documents that the Husband has received from the sale of livestock by him;

   (b)       Copies of all documents the Husband has in relation to the agistment of the livestock detailing the number of stock agisted and with whom they were agisted;

   (c)       Copies of all bank statements opened and conducted by the Husband since separation to date of disclosure;

   (d)       Evidence of all earnings from paid employment since November 2010;

   (e)       Evidence of all moneys received by way of gift or loan from a third party.

1. Should the following yet to be disclosed by the Wife remain in her possession, the Wife shall provide to the Husband within 28 days:

   (a)       Copies of all bank statements opened and conducted by the Wife since separation to the date of disclosure;

   (b)       Evidence of all earnings from paid employment since November 2010; and

   (c)       Evidence of all moneys received by way of gift or loan from a third party.

1. Each party must if they have not already done so, provide to the other party or parties, a copy of the following documents in the time prescribed (the obligation to disclose continues up to and including the hearing):

   (a)       The parties’ 3 most recent taxation returns and assessments;

   (b)       Any superannuation document for each superannuation interest of the parties including the completed superannuation form; and

   (c)       For a corporation (business, trust or partnership where the party has a duty of disclosure):

   (i)Financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the last 3 years; and

   (ii)Any business activity statement for the last 12 months ending immediately before the first Court date;

   (d)       For any corporation, its most recent annual return (if any) listing directors and shareholders and the corporation’s memorandum and articles of association (if applicable) or constitution;

   (e)       For any trust, the trust deed;

   (f)       For any partnership, the partnership agreement;

   (g)       All documents containing evidence about:

   (i)The financial matters mentioned in the parties’ financial statement;

   (ii)The financial contributions made at the commencement of cohabitation;

   (iii)Any inheritances, gifts or compensation payments received during cohabitation;

   (iv)Any purchase or disposal of property in the 12 months prior and since separation;

   (v)Any increase or reduction of liability since separation; and

   (vi)The valuation of any superannuation interest of the party including the basis on which the value has been calculated and any documents used to calculate the value;

   (h)       Any document requested and particularised in writing by the other party (subject to relevance and any objection or claim of privilege which shall be particularised in writing) within 21 days of the request and at the cost of the party requesting the document;

   (i)        Any document which, to a material extent, adversely affects his or her own case (subject to any claim of privilege) within 28 days; and

   (j)        Any document requested by any Court expert within 21 days of receiving the notice of request.

Valuation

1. Within 14 days, the Husband shall advise in writing of any agreement in relation to the value to be ascribed to the joint items of property deposed to by the Wife.

1. In the event of a dispute as to value to be ascribed to joint items of property:

   (a)       Within 28 days of the date of these Orders, the Husband shall provide to the Wife:

   (i)The name of three proposed Court experts for each item in dispute;

   (ii)An estimate of each proposed Court expert’s fees;

   (iii)A list of property to be valued including the location of any property in the Husband’s possession;

   (b)       The Wife shall nominate one of the proposed Court experts to undertake a joint valuation of the property referred to;

   (c)       In the event the Wife fails to nominate an expert within 7 days of receiving the information referred to in paragraph 10(1) herein, the Husband shall nominate the Court expert;

   (d) The Nominated expert shall be deemed to be appointed as a Court expert in the matter pursuant to r 15.44 of the Family Law Rules 2004 (Cth).

1. The Court expert shall be provided with a joint letter of instruction (including instructions that may be given by the Court) but if the parties are unable to agree, or for any reason the joint instructions cannot be obtained, then they shall each provide a letter of instruction to the Court expert within 14 days after the appointment.

1. The Court expert shall provide a report on the value of the property to the parties and the Court at least 7 days prior to the conciliation conference to be scheduled in accordance with this Order.

1. The costs of the Court expert are to be paid by the parties equally.

1. The parties shall provide a copy of these Orders to the Court expert.

1. From the amount held in the Fox & Thomas Trust Account, each party receive the sum of $44,000.00, with each sum respectively to be characterised by the trial judge.

1. The costs of and incidental to this application be otherwise reserved to the trial judge.

1. The matter be adjourned to the Registry for the fixing of a date for a conciliation conference and to determine whether there is any utility in the directions hearing set down for September 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Menzies & Menzies 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 BRISBANE

FILE NUMBER: BRC 1321 of 2012

Mr Menzies

Applicant

And

Ms Menzies

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The substantive proceedings in this matter are competing applications for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth).

2. The Husband is approximately 65 years of age and is a farmer and resides in North West Queensland. The Wife is 44 years of age and is a student and part-time worker, currently residing in North Eastern New South Wales. The parties married in 1989 and separated in September 2009. The parties’ divorce was finalised in February 2011.

3. There are three children of their marriage, two of whom are over the age of eighteen years. The youngest child, C, is currently sixteen years of age and is a boarder, spending holiday time with both parties respectively. The current proceedings were instituted on 7 February 2012, and I am told that there is currently set down a directions hearing in relation to the matter on 6 September 2012.

4. Both parties seek an Order that there be a conciliation conference and I propose to make an Order to that effect in terms of the matter being adjourned to the Registry for the fixing of a conciliation conference date.

5. The final Orders sought by the Husband are that the net matrimonial pool or property pool be apportioned as to 30 per cent to the Wife and as to 70 per cent to the Husband. For her part, the Wife contends that the apportionment be 55 per cent / 45 per cent in her favour.

6. On the material that is read before me, it can be concluded that the pool is modest. At paragraph 42 of her affidavit filed 29 May 2012, the Wife sets out what she deposes to be the current pool of assets, financial resources and liabilities, which gives a total net asset pool of $688,458.00 and total superannuation of approximately $25,000.00.

7. In paragraphs 32 to 40 inclusive of her affidavit also filed on 29 May 2012, the Wife sets out details in relation to her legal costs, including both, it seems, accrued legal costs and those she will have to meet for the purpose of a concluded trial.

8. The Wife’s application is, in effect, that from proceeds of some sales that are held in her solicitor’s trust account, she receive the sum of $44,000.00 by way of costs. It is contended on behalf of the Husband that there is no issue about the sum of $25,000.00, but there is an issue about the sum of $44,000.00 and about the issue of characterisation, with the Husband’s contention being that the sum of $25,000.00 should be made available to the Wife, with that sum to be characterised as a partial property settlement.

9. It is tolerably clear that on either party’s substantive application, each party will be entitled to considerably more than $44,000.00 from the proceeds held in the solicitor’s trust account.

10. Ms Mathew, who appeared on behalf of the Husband, conceded, properly in my view, that the Husband could not point to actual prejudice in terms of any sums allowed to the parties being characterised by the trial judge as opposed to being characterised by me now as partial property settlement. Ms Mathew pointed to the feature that it can simply render it more difficult to reach an agreed outcome between parties when a partial payment is left uncharacterised. Accepting that that may be so, nevertheless, it seems to me that in circumstances where the power to make an interim Order of this kind can be sourced either in the power pursuant to s 79 and s 80 of the Act or by reference to the costs power, or indeed by reference to the maintenance power, it is in all the circumstances preferable that such characterisation be left to a judge who hears and determines the trial of the proceedings between the parties. Provided each receives the same amount, namely $44,000.00, it seems to me that all that is left is for each party to properly account between now and the trial for the expenditure of any part of that sum and it will then be a matter for submissions at the trial, having regard to all the relevant considerations in determining the relevant property proceedings for the trial judge to characterise the amount for each party respectively.

11. I therefore make Orders as set out at the commencement of these reasons.

12. I note that I have already made other Orders by consent of the parties.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 July 2012.

Associate: 

Date:  2 August 2012