PELTON & BANBURY

[2018] FamCA 1172

FAMILY COURT OF AUSTRALIA

PELTON & BANBURY [2018] FamCA 1172

FAMILY LAW – PROPERTY SETTLEMENT – consent orders – where interim consent orders are made in relation to discovery and the appointment of experts – where the husband is to pay the wife’s costs – where the parenting proceedings are adjourned to a date to be fixed – where the husband has filed a Notice of Child Abuse making significant allegations – where these allegations need to be investigated before the Court can be in a position to assess the allegations

Family Law Act 1975 (Cth)

APPLICANT: Ms Pelton

RESPONDENT: Mr Banbury

FILE NUMBER: MLC 10051 of 2018

DATE DELIVERED: 14 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 14 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Matta

SOLICITOR FOR THE APPLICANT: Hargreaves Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Mihaillidis

SOLICITOR FOR THE RESPONDENT: Oxford Partners Lawyers

Orders

IT IS ORDERED BY CONSENT
Discovery

1. That within 14 days the husband provide to the wife’s solicitor:

   (a)Bank statements for all accounts in his sole name, or to which he has access, other than any joint accounts (including all bank accounts, credit cards, mortgages) for the period 1 July 2016 to present;

   (b)Documents relating to all investments and/or shares in his sole name, or to which he has access for the period 1 July 2016 to present;

   (c)Personal taxation returns and assessments for the husband for the 2017 and 2018 financial years (when available);

   (d)In relation to any company in which he holds an interest, beneficially or otherwise, but the wife does not hold an interest:

   i.Company constitution;

   ii.Tax returns and financial statements for the past three financial years, including notes and depreciation schedules;

   iii.Business Activity Statements for all periods since 1 July 2017;

   iv.Details of all currents assets owned and liabilities owed; and

   (e)In relation to any trust of which the husband Is the appointor, trustee, a member of a board or and/or members of a corporate trustee, but the wife does not have access to,:

   i.Trust Deeds and any amending deed thereto;

   ii.Tax returns and financial statements for the past three financial years, including notes and depreciation schedules;

   iii.Loan account ledgers;

   iv.Unpaid beneficiary entitlement ledgers;

   v.Business Activity Statements for all periods since 1 July 2017; and

   vi.Details of all currents assets owned and liabilities owed.

   And the Wife’s solicitor will provide to the Husband’s solicitor a list of all the documents already in their possession.

2. That each party provide any documents reasonably requested within 14 days of written request.

Appointment of Experts

1. That within 7 days the parties shall instruct their solicitors to execute the letter annexed and marked Schedule A to appoint Ms N as single expert to prepare a valuation of the parties’ interest in:

   (a)C Pty Ltd;

   (b)C Trust Pty Ltd;

   (c)C Trust;

   (d)T Pty Ltd;

   (e)C Investment Trust;

   (f)Banbury Investment Co Pty Ltd;

   (g)Banbury Investment Trust;

   (h)V Pty Ltd

   (i)W Pty Ltd;

   (j)Banbury Trust;

   (k)Banbury Holdings Pty Ltd;

   (l)E Trust;

   (m)Banbury Pelton Holdings Pty Ltd; and

   (n)H Superannuation Fund.

   (“the Banbury/Pelton Group”).

2. That within 7 days the parties shall instruct their solicitors to execute the letter annexed and marked Schedule B to appoint X Group as single expert to prepare a valuation of the real properties at:

   (a)AA Street, Suburb CC;

   (b)DD Street, EE Town;

   (c)FF Street, Suburb CC; and

   (d)GG Street, Suburb HH

   (“the Real Properties”)

3. That within 7 days the parties do all such acts and things as are required to cause the following professionals to be appointed as single experts to provide valuations:

   (a)   Y Valuers in relation to the chattels at the wife’s residence at AA Street Suburb CC, the husband’s residence at JJ Street Suburb CC and the beach house, DD Street, EE Town;

   (b)  Z Valuers in relation to the wine collection at the property at AA Street, Suburb CC; and

   (c)   BB Valuers or such other professionals as agreed in relation to the motor vehicles, trailers, boat, jet ski and/or motor bike owned by the parties and/or the Banbury/Pelton Group.

Injunctions

1. That pending further Order the parties by themselves, their servants and/or agents in their personal capacities or as an employee/shareholder/director/secretary or any other office holder be and are hereby restrained by injunction from:

   (a)transferring, selling, disposing of, assigning, or in any other way dealing with the assets of the Banbury/Pelton Group, other than in the ordinary course of business; and

   (b)taking any steps to alter the structure or ownership of the same.

2. That the parties each retain the funds that they have withdrawn from the Group, being:

   (a)The sum of $700,000 by the wife; and

   (b)The sum of $600,000 by the husband

   And the parties shall otherwise instruct the Commonwealth Bank of Australia to freeze all joint bank accounts and the accounts of C Pty Ltd, other than the following accounts ending in:

   i. #...58

   ii. #...23

   iii. #...02

   iv. #...802

   v. #...65; and

   vi. #...87

   which the parties be and are hereby restrained by injunction from withdrawing, transferring, disposing or otherwise dealing with, other than in the ordinary course of business.

IT IS FURTHER ORDERED THAT

1. All extant applications be adjourned to a date to be fixed by the Registrar.

IT IS FURTHER ORDERED THAT

1. By 4.00pm on 14 December 2018 the husband pay the wife’s costs of this day fixed in the sum of $2,431.

AND THE COURT NOTES THAT:

A.The Wife reserves her right to argue that the Husband has appropriated more than $600,000 upon receiving full and frank disclosure from the Husband, including bank statements.

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 Pelton & Banbury 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 MELBOURNE

FILE NUMBER: MLC 10051 of 2018

Ms Pelton

Applicant

And

Mr Banbury

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List.   It was listed for hearing on 13 November 2018 and adjourned part-heard to today, when it could not be completed in the time available.  The parties in this case were married in late 2005 and separated finally, in January 2018.  There are two children of their marriage who are aged seven and five.  Since the parties separated finally in January, the children have spent equal time with each of the father and the mother.

2. The proceedings were commenced by the mother by way of an Initiating Application filed 29 August 2018.  The mother sought final and interim financial and parenting orders.  Significantly, the mother’s application, with respect to the parenting orders, sought a continuation of the existing regime.  The father filed a Response to Initiating Application and an Affidavit in support of that application on 8 November 2018, in which he similarly sought both final and interim parenting orders.

3. The interim parenting orders he sought involved a change from the current regime, such that the time that the children would be spending with the mother would be reduced from the current equal time regime, to a regime whereby they spent from Thursday after school until Sunday in each alternate week and in the intervening week on Wednesday from after school until 7 pm.  When the matter commenced before me, counsel for the father sought to be released and I excused him from further appearance. 

4. At that point the father’s solicitor took over the conduct of the matter and sought leave to file a Notice of Child Abuse, Family Violence or Risk of Family Violence (“Notice of Child Abuse”).   Although the husband sought to pursue his interim application for parenting orders, I’m not satisfied that it would be in the children’s best interest to do so at this time.  As a result of filing a Notice of Child Abuse, the Department of Health and Human Services is required to be notified of the allegations and will investigate those allegations.

5. It is significant in my view, that it was the wife who commenced these proceedings.  The husband did not respond to them until shortly prior to the hearing, and the allegations in his material are not, in my view, well particularised. It is common ground that the most recent allegation of abuse relates to events that occurred in late July this year and that the husband was aware of those events at the time because he took the child to a local general practitioner. 

6. In my view changing the arrangements for the children at this time would be a significant change. Whilst the Court takes allegations of abuse seriously, it also follows that they need to be investigated, and that needs to occur before the Court is in a position to assess those allegations or to make a decision as to what might be in the child’s best interests generally and having regard to those allegations.  To make such a serious decision as changing the arrangements, in circumstances where clearly the father did not perceive it to be a matter of particular urgency, given the way in which he has conducted the proceedings, and his own case is that the children will at the very least, be spending significant or substantial time with the mother, would be a serious step.  I’m not satisfied that I should take such a step without those allegations having been investigated and the proper processes followed.

7. The difficulty in this case being that, because the father has only just filed that Notice of Child Abuse, the allegations have not yet been investigated.  So what I propose to do in relation to the interim parenting applications is to adjourn all the proceedings to a date to be fixed before the Registrar.  Now that the Notice of Child Abuse has been filed, that will be brought to the Registrar’s attention as a matter of course, and she will then put in place the processes that need to be followed, fix a date when the matter can be relisted and the applications considered.  It will likely be listed before the Senior Registrar, and the Court will hopefully be in a better place to make a decision as to the welfare of these children, with all of the necessary information available.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 November 2018.

Associate: 

Date: 13 March 2020