O’Keefe and O’Keefe

[2011] FamCA 764

FAMILY COURT OF AUSTRALIA

O’KEEFE & O’KEEFE [2011] FamCA 764

FAMILY LAW – PROPERTY – Interim distribution – farm – parties in animal breeding and training business – business involves sale of animals rights or breeding shares – prior to separation parties registered animals in joint names for financial benefit – husband notifies animal registration association of the parties separation and places restriction on wife registering animals – husband’s motivation for restrictions personal and not commercial – restrictions prevent wife from continuing to run business – advantageous to parties for the business to continue running – wife undertakes to keep husband informed of matters affecting his interest - orders for husband to remove restrictions and to sign application for registration and breeding returns of animals jointly owned by parties

APPLICANT: Ms O’Keefe

RESPONDENT: Mr O’Keefe

FILE NUMBER: (P)NCC 2127 of 2011

DATE DELIVERED: 15 September 2011
in Chambers

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 12 September 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Slater & Gordon
Rod Powe

COUNSEL FOR THE RESPONDENT: Mr Bateman

SOLICITOR FOR THE RESPONDENT: NPR Legal

Orders

1. That the husband forthwith and within two working days of the date of this Order do all acts and things to remove any restriction that he has caused to be placed with The C Association and/or D Association in relation to any animal or animals registered in the name of the parties or either of them.

2. That pending further order the husband be restrained from doing any act or thing that would restrict the transfer or registration or interfere with the breeding rights in relation to any animal or animals registered in the name of the parties or either of them or otherwise through B Farm Park Pty Limited.

3. That pending further order each party provide to the other written notification in relation to any dealing with any animal including any breeding right or rights in relation to any animal where the animal is registered in the name of the parties or either of them or otherwise through B Farm Pty Limited with such notification to provide:

   3.1description of the animal;

   3.2details of the transaction;

   3.3details of any monies received and how such monies have been disbursed.

4. That leave be granted for the wife to file a Financial Statement in support of the substantive application herein within 21 days.

5. That the husband will sign or counter sign any application for registration and breeding returns in relation to any animal owned jointly by the parties within 48 hours of submission to the solicitor for the husband by or on behalf of the wife of a properly prepared application or return to be lodged with the C Association and/or the D Association and in the event of his failure to do so within time the signature of the wife alone will be sufficient.

THE COURT NOTES:

(A)     The wife’s Undertaking filed as to damages.

IT IS NOTED that publication of this judgment under the pseudonym O'Keeffe & O'Keeffe 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 NEWCASTLE

FILE NUMBER: (P)NCC2127 of 2011

Ms O’Keefe

Applicant

And

Mr O’Keefe

Respondent

REASONS FOR JUDGMENT

1. The parties lived together off and on for about 18 years until they separated in March 2011.  They were married for the last nine years.  They lived on a property in the E region of New South Wales.  The property is owned by members of the wife’s family.  The husband asserts the property is held in trust for the wife.  That will be a matter for final hearing.

2. The wife is a farmer.  She registered a farm “B Farm” which she has operated through a company of which she is the sole director and shareholder.

3. The husband is a tradesman by occupation.  He participated in the business in a variety of ways.

4. When the parties separated there was some division of property.  The husband moved off the property in June 2011.  The husband has taken four animals with him.

5. The wife has continued to run the business.  There are no employees.

6. Part of the business involves the sale of breeding rights (“breeding shares”).  The rights entitle the holder to a certain number of breeding females owned by the holder of the breeding shares.  The number of shares is restricted.  As young are born they are registered with the relevant Association; the D Association and/or the C Association.

7. During the relationship the wife caused the registration of animals to be in the joint names of the parties.  There was a financial benefit to doing so.

8. The husband notified the Associations of a split in the partnership between the parties.  Their policy is that if there is a dispute between partners regarding registered animals “a ‘hold’ is put on all paperwork until such times as the parties resolve their issues”.[1]

   [1]  Exhibit ‘C’ to wife’s affidavit sworn 18 August 2011.

9. Accordingly, the parties have been advised that before any paperwork is processed for animals in joint names, the Association needs confirmation from both of approval to do so.

10. The letter of 16 August 2011 from the C Association to the wife’s solicitor indicates that they are waiting for instructions in relation to transactions. 

11. The wife filed an application on 19 August 2011 on an urgent basis.  In short, the wife wishes to run the business in the usual way until the parties have reached a final property settlement.

12. The response of the husband to the interim application is to restrain the wife from dealing with the animals without his express written consent.  There is no remedy proposed in the event that his consent is not given, other than regular recourse to the courts.

13. The husband in his affidavit affirmed 7 September 2011 at paragraphs 44 to 49 in relation to the transfer of a particular animal, “F” asserts forgery of his signature.  The wife contends a practice of the parties signing such documents on behalf of each other.  She denies forgery and asserts the husband knew about the transfer.

14. In any event the restriction placed by the husband on transfers was withdrawn when the parties reconciled for the last time in May 2011.

15. After the relationship broke down finally on 18 June 2011, the husband reinstated the restrictions.  This suggests that the motivation of the husband was personal not commercial.

16. Third parties have been adversely affected.  However reluctantly, litigation is being considered by some of them.

17. There is now a final Apprehended Violence Order (AVO) in place for the protection of the wife from the husband.  The evidence of the parties is untested but it does appear that the actions of the husband, whatever his motivation, are preventing the wife from continuing to run her business.  It is to their joint advantage for the wife to continue running the business. 

18. The wife has properly undertaken to keep the husband advised of matters affecting his interest in this interim period.

19. On that basis, she should have the ultimate authority to deal with the Associations and their parties and I order accordingly.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 15 September 2011.

Associate:

Date:  15 September 2011