On and On (No. 5)

[2007] FamCA 994

FAMILY COURT OF AUSTRALIA

ON & ON (NO. 5) [2007] FamCA 994

FAMILY LAW - PRACTICE AND PROCEDURE – The husband has made further application for funding by securing a further loan against the former matrimonial home.  He further applied that a debt for $55,266 from the Australian Taxation Office also be secured against and met from the equity in the former matrimonial home and that the wife be equally responsible for the debts of the businesses.  Finally he sought the appointment of another Real Estate Valuer to provide a valuation in circumstances where there is already a valuation from an appointed single expert filed at court.  All applications, for reasons stated, dismissed.

Rule 15.49; Rule 15.51 of the Family Law Rules 2004

APPLICANT: Mr ON

RESPONDENT: Mrs ON

FILE NUMBER: MLF 7114 of 2001

DATE DELIVERED: 26 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 26 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the said Applications be dismissed.

2. That the Wife’s costs of and thrown away by the said Application be reserved.

IT IS CERTIFIED

(3) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel (including senior counsel).

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, a copy placed on the Court file and made available to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as ON & ON

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7114  of 2001

Mr ON

Applicant

And

Mrs ON

Respondent

REASONS FOR JUDGMENT

1. At the commencement of the proceedings this morning, the husband made a number of further applications which are defined in a document sworn by him this day and to which he has annexed a number of documents.  For the purpose of this short extempore judgment, I will consider each of the four applications which are set out in paragraphs 11(i) to (iv).  I will treat the preceding paragraphs of that document as part of his submissions.  In coming to my determination I also pay regard to the oral submissions of the husband and those of Mr Kirkham in reply. 

2. The first application deals with funding.  The husband seeks that he be provided security for the funding of his legal fees, and for that purpose his fees be secured over the former matrimonial home at T.  Having recorded some of the background in his written document, the husband went on to submit that having been in court for two days has made him "more aware" that he is "totally out of his depth”.  He submitted that he has been placed at an "unbelievable disadvantage" and referred to the fact that earlier in the proceedings Mr Sweeney had quantified the nett pool of assets at about $10 million, in which circumstances it was not unreasonable that his fees be secured against that property.

3. Furthermore, the husband submitted that his circumstances had changed and, to use his words, "I am not sufficiently skilled to represent myself".  He went on to suggest in oral submissions and those in reply to Mr Kirkham that he had made most "significant profits" on the purchase and sale of various properties, most of which were now represented by the equity in the former matrimonial home.  He submitted that he was seeking to “access those profits”.  The husband pointed out that of the $938,000 received pursuant to the orders of Bell J on 8 September 2004, the sum of $738,000 was applied towards business debts and the balance of $200,000 was utilised on his own account. 

4. In reply, Mr Kirkham submitted that he did not accept what he described as the husband’s "mantra", that he was “out of his depth”.  It was his submission that no‑one knew the financial circumstances surrounding the issues for my determination better than the husband.  Mr Kirkham emphasised the fact that the husband had operated the two businesses and was intimately aware of their commercial operations.  He pointed out that following the separation it was the husband who had engaged in the purchase and sale of various properties and accordingly was conversant with all relevant details.

5. Mr Kirkham referred to the fact that the wife did not have the hands on knowledge of the husband and that she was obliged to issue and rely upon some 50 subpoenas in order to obtain an understanding of what he had done in the management of the family assets since their separation in July 2001.  Further, that the husband had at all times, until very recently, been assisted by both senior and junior counsel. 

6. Specifically dealing with the issue of security for funding, Mr Kirkham referred to the two previous Applications that had been before the court.  The husband's first Form 2 Application, which was mentioned on 14 February 2007 was heard by me on 16 February 2007.  I rejected that Application and delivered an extempore judgment which has been placed on the court file.  The husband renewed that Application on 22 February 2007.  I rejected that application too.  It is renewed again this day, for the third time and in relation to which Mr Kirkham submitted that it was utterly inappropriate to vary a judgment given a week beforehand.  Further, that there were insufficient changes in the facts or circumstances relied upon to warrant the application. 

7. As to his second application, the husband sought that an order be made that the debt specified in a Notice of Intended Legal Action/Garnishee served on MM Pty Ltd by the Australian Taxation Office in the sum of $55,266.04 be secured against the former matrimonial home at T and that arrangements made forthwith to discharge that debt.  The husband annexed to his written document (Exhibit “WON3”) a notice from the Australian Taxation Office which he claimed was received by him on 23 February 2007.  The debt is due for final payment on 28 February 2007.  It remains outstanding on the account of a Superannuation Guarantee Surcharge. 

8. In response, Mr Kirkham rhetorically asked the question, "Given the husband's equity in other properties, why should it be secured against the former matrimonial home?"  That of course, had merit.  He referred to the fact that in or about July or August of 2006 an application was made to this court for funds to pay staff superannuation.  Since that time the husband received on or about 4 August 2006 approximately $1.3M from the sale of the property at G1 UK property  of which he directed about $800,000 towards the purchase of a luxury cliff top property known as “A Property”, at SR.  Further, the husband directed the sum of $300,000 from that capital receipt be made towards the reduction of his debt over a luxury apartment earlier acquired by him and situated at E.

9. Mr Kirkham submitted that without the purchase of “[the A property]” or the E properties, the husband would have had available the sum of $1.370 million from the sale of G3 property, UK, the sum of $150,000 from the sale of property at SR3 and $400,000 raised against the BR apartment.  Apparently the husband utilised some $600,000 from the sale of the property at G3, UK, towards “[the A property]” as well. 

10. In those circumstances, Mr Kirkham submitted that it was “utterly unreasonable” to expect the wife to be responsible for the debt to the Australian Taxation Office referred to in the demand ordered by the Deputy Commissioner of Taxation on 20 February 2007. 

11. The husband's third application was for an order that the wife be equally responsible for the debts of the businesses and all associated entities.  This appears to me to be part of his overall claim before the court and for my determination.  When I pointed that out to the husband he carefully perused his submissions and argued that I should order the wife be responsible “for one‑half” of the business debts.  I do not propose to do that until I have heard all of the evidence.  In his answering submissions, Mr Kirkham emphasised the fact, as is so plainly obvious, that the responsibility for the debts of the businesses will be dependent upon the whole of the evidence before me. 

12. As to the fourth application, the husband sought an order relating to various items set out in paragraphs 11(IV)(a) to (e) and rendered some complaints concerning the “Court Book”.  The husband's complaints in relation to the Court Book are detailed in his written document.  In his submission to me, he said that he was seeking that the Court Book be removed from the court file for the reasons set out in his affidavit.  However, when it was made clear to him that the Court Book was not in my possession nor part of the court record, he withdrew that application.

13. Mr Kirkham, however, made it patently clear that, whatever criticism the husband had, all the documents in the Court Book were the product of subpoenas or documents on the record, “save for items set out in 1.5”, (whatever that may be).  He submitted that the Court Book was to assist the husband in his presentation. 

14. By paragraph 11(IV)(f) the husband sought an order that Mr GS of SF, Property Valuers be given access to the T property for the purpose of valuing the property.  He relied upon his written submission and went on to argue that he sought an order that Mr GS also be provided access to the former matrimonial home for valuation purposes.

15. In reply, Mr Kirkham submitted that on 6 February 2007 Mr St John made an application on behalf of the husband for re‑valuation by a single expert of the property at T for the purpose of the trial.  I well recall the considerable debate that ensued that day.  In the result, I ordered a re‑valuation of that property as sought.  This has been done and the updated valuation has now been filed.  Mr Kirkham said that the husband's application goes no further than to merely suggest he “was not satisfied” with that re-valuation.

16. Mr Kirkham referred me, properly so, to Rule 15.49 of the Family Law Rules 2004 which deals with the appointment of another expert witness such as sought by the husband. That Rule provides as follows:

    “15.49(1)If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission. 

    15.49(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it satisfied that:

    (a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;

    (b)another expert witness knows of matters not known to the single expert witness, that may be necessary for determining the issue; or

    (c)there is another special reason for adducing evidence from another expert witness.”

17. Rule 15.51 of the Rules deals with “permission” for experts reports and evidence.  Rule 15.51(1) defines that a party must apply for the court's permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.  Mr Kirkham submitted that the rules permit the court to receive a further report in what he described as “very restricted circumstances”, which the husband had not fulfilled.  He submitted that the Rule did not apply to a "second bite at the cherry", simply because the husband was dissatisfied with the further report.

18. As to his equity in the remaining properties, which have been outlined, the husband helpfully submitted:

    “As matters presently stand, [the A property] is valued at approximately $6,500,000 upon which there is owing approximately $5,250,000, an equity thus of $1,250,000.  The [BR] apartment is currently valued at about $640,000 on which there is owing approximately $525,000.  The E apartment is valued at approximately $1,375,000 on which there is owing $1,100,000 together with a charge in favour of the husband's accountants, B Company for outstanding fees of approximately $100,000.” 

19. I propose to dismiss the husband's applications.  Firstly, have twice before dealt with his application to secure additional funds, and, despite the debt recently realised from the Australian Taxation Office, there is no legal or factual basis advanced to reopen my earlier determinations.  The husband has, on his own concession, some equity amounting to about $1.5 million in other properties.  There has been no submission from him to explain why, or why not, that considerable equity may, or may not be accessed in some way offering the security he seeks. 

20. As to the re‑valuation of the former matrimonial home, there is in my view no additional or proper material to permit that re‑valuation process.  Given the limited circumstances defined in the Rules, I agree with the submissions of Mr Kirkham. 

21. In the course of presentation on behalf of the wife, Mr Kirkham and Mr Sweeney have adopted a procedure to ensure that the husband has all relevant material before him.  They have caused to be filed and provided to the husband a detailed Case Outline Document summarising all issues for my determination.  I found that to be an extremely helpful document. 

22. The wife's affidavit of evidence‑in‑chief is a lengthy and helpful document.  It too defines, together with supporting assertions and allegations, the issues for my determination.  In addition, Mr Kirkham has provided to the husband a narrative typed summary of his opening.  Further, he has photocopied and provided to the husband all relevant authorities for his consideration. 

23. The husband has complained now, quite a few times, that he does not have the “necessary skill” to conduct his own case.  That is not my observation.  He has already demonstrated his generous grasp of the facts through his cross‑examination, but lost at times on the issue of relevance.  I have, where necessary, corrected him.  He has an intimate knowledge of the operation of the business, the sale and purchase of property since separation in July 2001 and the application of those moneys.  He has demonstrated that to my satisfaction. 

24. The defined issues are very clear.  The husband is aware of them.  He need only address them as objectively as possible in the circumstances and with the security of his own knowledge of the details relating to the financial issues.  In all the circumstances, I propose to dismiss the husband’s applications.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  24 August 2007.