Peters and Peters & Ors
[2014] FamCA 443
•25 June 2014
FAMILY COURT OF AUSTRALIA
| PETERS & PETERS AND ORS | [2014] FamCA 443 |
| FAMILY LAW – PROPERTY SETTLEMENT – Where the husband and wife were married for approximately 13 years – Where there is one child of the marriage – Where the husband died after the hearing was conducted but before judgment – Where the wife was granted leave under s 79(8) to continue the proceedings against the legal personal representative of the husband – Where a further hearing was conducted – Where it is just and equitable that the husband and wife have relief under s 79 – Where the husband and wife each made applications pursuant to s 106B – Where the s 106B applications failed – Where the asset pool was modest – Where the initial contributions of the wife exceeded those of the husband – Where on balance, the financial contributions of the husband exceeded those of the wife – Where the contributions of the wife to the family were greater than that of the husband – Where the balance of contributions to the main pool of assets were found to be equal – Where the wife made a preliminary distribution of over $240,000 in matrimonial funds – Where the husband’s estate is insolvent to the extent of over $400,000 – Where no adjustment to the result based on contributions is appropriate. FAMILY LAW – SUPERANNUATION – Where the wife sought an order against the trustee of the husband’s superannuation fund – Where there is no evidence that there is a superannuation interest against which a claim could be made – Where the wife’s claim cannot succeed. FAMILY LAW – INJUNCTIONS – Where the wife disseminated material associated with the proceedings, which included material setting out serious complaints about the conduct of the second respondent – Where an order was made restraining the wife from forwarding or causing to be forwarded any communication concerning the proceedings which make any reference to the second respondent to his employer and other related institutions and professional bodies. |
Family Law Act 1975 (Cth) Sections 75 & 79, 106B, 114, 121
Child Support (Assessment) Act1989 (Cth) Section 12(3)
Evidence Act 1995 (Cth) Section 140
In the Marriage of Coghlan (2005) FLC 93-220
In the Marriage of Ferraro (1993) FLC 92-335;
In the Marriage of Hickey (2003) FLC 93-143;
In the Marriage of Lenehan (1987) FLC 91-814;
In the Marriage of Norbis (1986) (1986) 161 CLR 513; FLC 91-712;
In the Marriage of Omacini (2005) FLC 93-218;
In the Marriage of Robb (1994) FLC 92-555;
In the Marriage of Townsend (1994) (1995) FLC 92-569;
In the Marriage of Zyk (1995) FLC 92-644;
In the Marriage of Shewring (1988) FLC 91-099;
Mallett v Mallett (1984) 156 CLR 605.
| APPLICANT: | Mr Peters |
| FIRST RESPONDENT: | Ms Peters |
| SECOND RESPONDENT: | Mr R Peters |
| THIRD RESPONDENT: | Mr Weston |
| FILE NUMBER: | TVC | 1541 | of | 2007 |
| DATE DELIVERED: | 25 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 4 – 12 June 2012; 14 & 15 October 2013 |
REPRESENTATION
| APPLICANT HUSBAND: | Husband in person Husband (deceased) by his legal personal representative – |
| FIRST RESPONDENT WIFE: | Wife in person |
| SECOND RESPONDENT: | Mr R Peters in person |
| THIRD RESPONDENT: | Mr Weston in person |
Orders
The wife and the second respondent (in his capacity as the legal personal representative of the husband), do all things and sign all documents necessary to lawfully cause:
a)A payment to the wife from the funds of D Pty Limited atf E Superannuation Fund in the sum of $73,945; and
b)Otherwise, after payment of all liabilities of D Pty Limited atf E Superannuation Fund, the balance of the assets of the Fund shall be disbursed to the second respondent as the executor of the Estate of the husband for the purposes of the administration of that estate.
The orders made on 4 November 2011 in relation to the sale and disposition of the proceeds of sale of Lot 1, Unit 2, FF Town Resort, FF Town, Queensland, are vacated.
Except as otherwise provided in these orders, the estate of the husband and the wife each be declared the sole legal and beneficial owners of all items of property or resource including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
The wife is restrained from forwarding or causing to be forwarded to O University, the O University Graduate School, or any other Australian educational institution; to MM Organisation, or any other professional body associated with profession NN in Australia or any organisation affiliated with those Australian organisations – any communication concerning these proceedings or copies of documents or of excerpts from documents prepared in relation to these proceedings, which make any reference to Mr R Peters.
Otherwise but save as to the issue of costs, all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Peters & Peters & Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Peters and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: TVC 1541 of 2007
| Mr Peters |
Applicant
And
| Ms Peters |
First Respondent
And
| Mr R Peters |
Second Respondent
And
| Mr Weston |
Third Respondent
REASONS FOR JUDGMENT
The marriage of Mr Peters and Ms Peters involved a cohabitation of more than 15 years, ending in December 2007. The primary proceedings before the Court are for the settlement of their property. Although they were divorced, for convenience I will refer to them as the husband and wife.
In the context of their property settlement proceedings, the husband and the wife respectively sought orders against the wife’s former son in law, Mr Weston and the husband’s son, Mr R Peters, thereby joining them as parties to the proceedings.
Although the husband had been represented at an earlier stage, for the substantive hearings, none of the parties had legal representation.
Sadly, the husband died in September 2012 and the proceedings were continued against his estate.
In what are unusual proceedings there are two remarkable features. For the first phase of the final hearing in June 2012, three of the four parties lived outside Australia. The wife and husband lived (separately) in Country J and Mr R Peters lived and worked in Country I. The second notable and alarming feature of the case is that the husband and wife had little by way of property to settle. As will be seen, given the extraordinary history of financial dealings in this case, it is a highly artificial exercise to make a just and equitable settlement of property out of a very small pool of assets.
These are the reasons for judgment following hearings in June 2012 and October 2013.
The History Of The Proceedings
These proceedings commenced in the Federal Magistrates Court (as the Federal Circuit Court was then called) in Townsville in 2007. On 3 December 2009 the proceedings were transferred to this Court. There have been numerous interlocutory hearings and an appeal. Over the long life of the proceedings various issues were raised, including a claim by the wife for damages from solicitors formerly retained by the husband in relation to an alleged failure to serve documents and a claim for the wife against the husband for damages for assault. Either expressly or by default some of those matters were still in issue when the final hearing commenced. In relation to the damages claims against the solicitors and the husband, I ruled that jurisdiction would not be exercised in respect of those issues. In any event the respective cases were not detailed and in my view, the proffered evidence did not support the claims.
Although many other persons and entities have been named as parties during the course of these proceedings, as at the date of the final hearing/s, in addition to the husband (through his legal personal representative, the husband’s adult son, Mr R Peters) and the wife, only Mr R Peters in his own right and the estranged husband of the wife’s daughter, Mr Weston, remained parties to the proceedings.
In addition to the Australian proceedings, there have been proceedings in Country J, being proceedings in relation to Y, the son of the husband and wife, under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) as well as parenting proceedings.
As is mentioned above, a hearing of the property settlement proceedings was conducted on 4 – 12 June 2012 and judgment was reserved.
Sadly, the husband died in September 2012. Thereby the proceedings were brought to an end.
The wife subsequently made an application under s 79(8) to continue the proceedings against the legal personal representative of the husband. That application was granted, unopposed. In January 2013 directions were made for the filing of further evidence and a further hearing took place on 14 and 15 October 2013. On 15 October 2013 judgment was again reserved.
It is a matter of regret that this judgment was delayed for many months.
Applications
Following the death of the husband there were changes in the orders sought by the parties.
At the final phase of the hearing the wife sought orders in terms of a document titled “Amended Orders of [the wife] submitted 15 October 2013”. That document itself was amended and the orders ultimately sought by the wife were as follows:
Concerning orders sought by and on behalf of the applicant husband:
1.That the Court dismiss the Orders sought by and on behalf of the Applicant Husband found in Annexure A (pages 23 to 26 inclusive) in the Case Outline Document as presented to the court during trial on June 4 – 12, 2012, and as resubmitted to the Court for the Present Court hearing by Respondent [Mr R Peters] as his Executor.
2.Legal costs of and incidental to pursuing this claim on an indemnity basis.
Concerning orders sought by Respondent [Mr R Peters]:
3.That the Court dismisses the orders sought by Respondent [Mr R Peters].
4.Legal costs of and incidental to pursuing this claim on an indemnity basis.
Concerning orders sought by Respondent [Mr Weston]:
5.That the Court dismisses the orders sought by Respondent [Mr Weston].
6.Legal costs of and incidental to pursuing this claim on an indemnity basis.
Concerning orders sought by Respondent wife [Ms Peters]:
7.That the Court releases the November 2011 injunction regarding the release of monies controlled by Peter Williams and that those funds be applied to:
a. Payment of all outstanding fees incurred by Peter Williams in managing the controlled monies
b.Payment to Respondent wife as final property settlement.
8. That the Court gives the property [FF Town] to the Respondent wife as final property settlement.
9.The Trustee of State Superannuation Scheme forthwith pay to the Wife [Ms Peters] the regular reversionary spouse pension of member [Mr Peters] including arrears from the day after the date of his death of … September 2012 to her nominated bank account; alternatively, any order of the court’s initiative which reinstates the wife’s eligibility for the regular fortnightly reversionary spouse pension of member [Mr Peters].
10.That within 21 days the 21 days that applicant husband, or in the alternative his Executor Respondent [Mr R Peters] or in the alternative respondent [Mr R Peters], pay to the wife [Ms Peters], or her nominee, by way of bank cheque and amount of siphoned [H] Pty LTD ABN … monies of $142,116.86 plus interest at the rate prescribed under the rules calculated from October 2007.
11.That within 21 days the applicant husband, or in the alternative his Executor Respondent [Mr R Peters] or in the alternative respondent [Mr R Peters], pay to the wife [Ms Peters], or her nominee, by way of bank cheque the rental monies, real or notional, earned from the marital asset known as unit [2, GG Street, FF Town], including interest at the rate prescribed under the Rules on such sum as calculated by the court from 18 December 2007 up to date of up to date of the payment, to the wife.
12.The instrument referred to as the ‘loan’ or ‘Deed’ between [the husband] and Respondent [Mr R Peters] in substantive proceedings and [the husband’s] will is void; alternatively the value of the instrument referred to as the ‘loan’ or ‘Deed’ between [the husband] and respondent [Mr R Peters] in substantive proceedings and [the husband’s] will is deemed nil; alternatively any order of the court’s initiative which gives effect to the intention of the orders sought.
13.[Mr R Peters] reimburses the controlled money account the sum of $2680.00.
.....
15.The title of unit [2, FF Town Resort, FF Town], is transferred to the wife.
16.That respondent [Mr R Peters] indemnifies the wife of all outstanding statutory charges, rates and levies in relation to unit [2, FF Town Resort, FF Town] up to the date of transfer of title.
17.That within seven days from the date of the order that solicitor Peter Williams is ordered to draw the balance of the controlled money account as payment of property settlement to the benefit of the wife and a bank cheque to be forwarded to [JJ Street, Suburb FG], SA, 5…; alternatively any order of the court’s initiative which gives effect to the intention of the orders sought.
18.Respondent [Mr R Peters] pay the legal costs of and incidental to pursuing this claim on an indemnity basis.
…
27.That the necessary parties do all things, sign all documents and give all consents necessary to give full force and effect to these orders.
28.That if any party refuses or neglects to sign or execute any document, instrument or writing or comply with any order contained herein after seven days of being required to do so, pursuant to section 106A of the Act that the registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to the orders herein.
In her Case Information document for the October 2013 hearing the wife also referred to her Application in a Case filed 4 April 2013. As the “Amended Orders of [the wife] submitted 15 October 2013” post-dates the Application in a Case and includes some but not all of the orders sought in the Application in a Case. I will make no further reference to the earlier document. In any event, by definition, such an application cannot have an existence independent of the substantive proceedings.
Perhaps understandably given that he was self-represented, despite formally recognising the two roles he had in the proceedings, there is some overlap between the orders sought by Mr R Peters in his own right and by him as the husband’s legal personal representative. He flags that issue in his “SECOND RESPONDENT CASE OUTLINE DOCUMENT” lodged on 10 October 2013. In that document he sets out the following orders sought:
a.That the Court dismiss the Application in a Case filed by the Respondent Wife on 21 December 2009.
b.That the Court dismiss Orders 2, 3, 6, 10 and 11 of the Application filed 1 May 2012 by the Respondent Wife.
c.That the court dismiss orders 1, 2. 3, 4a, 4b, ‘s4c, 4d, 4e, 4f, 5, 6, 7 & 8 of the Application filed 14 November 2012 by the Respondent Wife.
d.That the Court dismiss Orders 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Application filed 4 April 2013 (sworn March 25, 2013) by the Respondent Wife.
e.Pursuant to the provisions of section 107 of the Child Support (Assessment) Act 1989 the court declares that the late [husband] should not be assessed in respect of the child support of the child, [Y], born … 1996 (now 17.5 years).
f.Dismissal of all Orders being sought by [the wife].
g.That the Respondent Wife in these proceedings be restrained from forwarding or causing to be forwarded any communication whatsoever associated with these proceedings now and in the future, howsoever, that make any reference to [Mr R Peters], including but not limited to any educational institution, [O] University, [O University Graduate School], [MM Organisation], any professional body associated with [profession NN] and to all such institutions within Australia or affiliated with those Australian organisations whether located in Australia or overseas
h.That the Respondent Wife pay my costs of and incidental to the proceedings on an indemnity basis.
i.That the Respondent Wife pay [the husband’s] costs of and incidental to the proceedings on an indemnity basis.
j.That the Court releases the November 2011 injunction regarding the release of monies controlled by Peter Williams and that those funds be applied to:
i.payment of all outstanding fees incurred by Peter Williams in managing the controlled moneys and in obtaining the grant of probate on behalf of the estate
ii.payment to Crawford Ryan Lawyers for the outstanding legal costs incurred on behalf of [the husband]; and
iii.payment to [Mr R Peters] in settlement of outstanding loans owed by [the husband] pursuant to Agreements dated 24 November 2009 and 17 April 2012
k.As Executor of [the husband’s] Estate, that all Orders sought by him in his Case Outline Document as presented to the Court during Trial on June 4 – 12, 2012, and as resubmitted to the Court for the present Court Hearing by me as his Executor be given effect, the Minutes of those Orders being sought on behalf of the Applicant Husband being found in Annexure A (pages 23 – 26 inclusive) of that Case Outline Document.
l.That the Court gives the property at [FF Town] to [the husband’s] Estate.
By the reference in k. above, it is clear that the orders sought on behalf of the husband in the “APPLICANT HUSBAND’S OUTLINE OF CASE DOCUMENT” prepared and submitted for the purposes of the hearing in June 2012, continue to be sought on behalf of the husband. Therefore the orders sought on behalf of the husband are as follows:
1.This order is made by way of alteration of property interests pursuant to S. 79:
1.1.That pursuant to section 106B, the transfer of the property known at (sic) and situate at “[D Property]” [KK Street, Town LL] NSW on or about 2 November 2007 between the First Respondent wife and the Third Respondent, [Mr Weston], be set aside.
1.2.Consequential upon the making of Order 1.1 hereof, The Third Respondent shall pay to the wife the sum of $296,525 including accrued interest until payment in full (“the controlled moneys”), with such sum to be held in a controlled monies account in the name of the husband.
1.3.That in the event that the Court declines to make the Orders 1.1 and 1.2 hereof then the following Order (1.4) is sought:
1.4.That the Third Respondent pay to the husband or his nominee by way of bank cheque an amount to be determined by this Court including:
1.4.1.$296,565
1.4.2.Interest at the rate prescribed under the Rules on such sum calculated from September 2009 until payment in full
1.4.3.Legal costs of and incidental to pursuing this claim on an indemnity basis.
1.5.That within twenty one (21) days the wife pay to the husband or his nominee by way of bank cheque an amount of $361,369.
1.6.That the husband be declared to be the owner at law and in equity of the controlled moneys referred to in order 1.2 hereof.
1.7.That the husband be solely entitled to the assets and proceeds of the self-managed fund known as [D] Pty Limited atf [E] Superannuation Fund and the member balance contained therein.
2.Except as otherwise provided in this Order, the husband and the wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
3.That the Respondent Wife in these proceedings be restrained from forwarding or causing to be forwarded any communication whatsoever concerning these proceedings or matters in evidence in these proceedings, howsoever, making any reference to [Mr R Peters] or the Applicant husband including but not limited to any educational institution, [O] University, [O University Graduate School], [MM Organisation], any professional body associated with [profession NN] and to all such institutions within Australia or affiliated with those Australian organisations.
4.That the Third Respondent pay the Husband’s costs of and incidental to the relief sought in orders 1.1 and 1.2 or 1.4 as applies hereof on an indemnity basis.
5.That the wife pay the husband’s costs of and incidental to these proceedings on an indemnity basis.
6.Except as otherwise provided in this Order, the husband and the wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
7.That the parties do all things, sign all documents and give all consents necessary to give full force and effect to these orders.
8.That if either party refuses or neglects to sign or execute any document, instrument or writing or comply with any order contained herein after seven days of being required to do so, pursuant to section 106A of the Act that the Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to orders herein.
9.Leave to either party to have liberty to apply further in respect of the implementation of any or all of these orders.
The orders sought by Mr Weston were set out in a document titled Minute Of Orders Sought By The Third Respondent dated 9 October 2013 as follows:
1. That any application in relation to the property situated at “[OO Property]” [PP Street, Town QQ] in the State of New South Wales 2… be dismissed.
2.That within seven (7) days of these orders [the wife] deliver to Phelps Reid lawyers located at … the Title Deed to the property “[OO Property]” [PP Street, Town QQ] in the State of New South Wales 2… to be held by those lawyers on trust pending consent of [Ms Weston] and [Mr Weston] or a Court Order.
Documents Read
The wife relied on the following documents:
·Affidavit of the wife sworn 24 April 2012 filed 27 April 2012;
·Financial Statement sworn 16 November 2010 and filed 22 November 2010;
·Undertaking as to Disclosure filed 10 April 2012.
At the hearing in June 2012 the wife initially sought to rely on an affidavit by Ms RR, two affidavits by Mr L and an additional affidavit by herself. In the course of objections the wife said that she no longer sought to rely on Ms RR’s affidavit. Before I needed to rule on the objection to the L affidavits, the wife said she no longer relied on any affidavit from Mr L. The wife also told me that she did not rely on any further affidavit of her own.
For the October 2013 hearing the wife also relied on the following sworn documents:
·Affidavit of the wife sworn 23 March 2013 filed 4 April 2013;
·Financial Statement sworn 23 March 2013 filed 4 April 2013;
·Wife’s Financial Questionnaire filed 4 April 2013.
For the hearing in June 2012 the husband relied on the following documents:
·Affidavit of the husband sworn 23 March 2012 filed 29 March 2012;
·Financial Statement sworn 23 March 2012 filed 29 March 2012;
·Affidavit of Ms SS sworn 8 March 2012 filed 29 March 2012;
·Undertaking as to Disclosure filed 10 April 2012.
The second respondent, both in his own case and for the October 2013 hearing, as legal personal representative for his father, relied on:
·Affidavit of Mr R Peters sworn 28 March 2012 and filed 2 April 2012;
·Affidavit of Mr R Peters sworn and filed 8 April 2013;
·Affidavit of Mr R Peters sworn and filed 6 September 2013;
·Affidavit of Ms TT sworn 5 September 2013 and filed 6 September 2013;
·Affidavit of Peter Williams sworn and filed 5 September 2013.
The third respondent relied on:
·Affidavit of Mr Weston sworn 27 October 2011 and filed 28 October 2011.
Mr Weston swore a further affidavit on 28 May 2012 which he filed on 31 May 2012 but when asked on the second day of the hearing which affidavit he relied on, he said that he relied on the earlier affidavit but would seek to tender some of the annexures to the later affidavit.
The Hearing
The proceedings were listed for final hearing over six days commencing on 4 June 2012. None of the parties were legally represented at trial. The husband and the wife, sought and were granted, unopposed, leave to be assisted by persons in the style of a McKenzie friend. It is my recollection that I was told the person who assisted the husband was a law graduate who was not entitled to practise. The wife was assisted by her daughter.
In their preparation for trial, cross-examination and submissions the focus of the parties was mainly on arguments about the diversion, misappropriation and or preliminary distribution of matrimonial funds. As a result little or no attention was paid to the existing assets and liabilities of the husband and wife. Importantly, at the conclusion of final submissions in June 2012 the parties were not able to agree and there was no evidence of the value of the only agreed assets being the balance of the controlled moneys account held for the parties by the solicitor who acted on the sale of a property at Suburb C in Sydney; the value of a FF Town in Queensland property and of the levies and other amounts owing on that property. The Court’s copy of the husband’s Financial Statement was missing the annexure that purportedly set out the balance of the self-managed superannuation fund of the husband and wife. In order to belatedly address those matters, on 12 June 2012 orders were made that within seven days the husband provide to the Court and to the wife a copy of:
a)a letter from Peter Williams solicitor setting out the balance of the controlled moneys account;
b)a statement of the amount/s owing on the FF Town property for levies and other fees; and
c)annexure B to the Financial Statement of the husband filed 29 March 2012 or in any event a recent statement in relation to the superannuation fund of the husband and wife setting out the value of the assets held by that fund.
On 19 June 2012 an email was received from the husband by the Registry with copies sent to the wife and Mr R Peters and another (presumably Mr Weston). Expressly in response to the order of 12 June 2012, the email attached two PDF files which purported to set out the balance of the funds in the E Superannuation Fund as at March 2012 and as at 12 June 2012. No letter was provided from the solicitor holding the controlled moneys account nor was there a formal statement from D Pty Limited.
The litigation had been on foot since late 2007. Each of the parties recorded the financial and personal hardship that they and members of their families had experienced due to the strain of the proceedings. In interim hearings conducted before me by telephone, at times the parties were rude to each other and were apparently very angry and upset. Nevertheless, as I said to the parties at the conclusion of submissions, to my observation they conducted themselves well in the course of the six days of hearing in June 2012.
The remaining parties also cooperated during the hearing in October 2013. The parties followed my instructions and met the exigencies and practical limits of the trial.
Notwithstanding the cooperation of the parties they were not able to adequately prepare and present their cases during the hearings and it was extremely difficult for me to tread the line recommended for cases involving litigants in person.
The Issues
In the written submissions on his behalf, the husband summarised the property settlement issues as follows:
a.What is the pool, real and notional.
b.Has the wife entered banking and similar transactions as alleged by the husband which have diverted joint matrimonial assets away from this jurisdiction, and which are justly added back and or taken into account in a final division.
c.Has the wife entered a transaction with the third Respondent as alleged by the husband to avoid an anticipated Order for the division of property.
d.Has the husband transacted with the Second Respondent as alleged by the wife to divert the income stream of [H] Pty Ltd.
e.In the light of the above findings what is the percentage division the Court considers appropriate between husband and wife in the context of a fifteen year relationship.
Although not expressed in terms of the legislation, the above list identifies the most contentious issues.
Short history
The wife was born in 1957 and as at the conclusion of the hearing was nearly 56 years of age. The husband was born in 1939 and when he died in September 2012, he was 73 years of age. They started to live together in 1992, were married in February 1994, separated on 4 December 2007 and were divorced by the Federal Magistrates Court with effect in December 2009.
Children
There is one child of the marriage, namely Y, (“the child”). He was born in 1996 and as at the conclusion of the hearing, was 17 years of age.
The husband and wife each have adult children from earlier relationships.
Background facts
These were fraught proceedings and there was a substantial degree of factual dispute between the parties. Doing the best I can, the relevant background is as follows.
The husband was born in England. He gained qualifications in education leading to a Phd. He moved to Australia in 1975 and worked in the education field until 1990.
Apart from his education work, the husband worked in research roles. In 1988 the husband was a director and minority shareholder of UU Pty Ltd, a company established under the commercial arm of a university.
The wife was born in Australia. She was awarded a Masters degree and worked in the education field. She resigned from her education work and in 1992 commenced employment at UU Pty Ltd.
The husband and wife started living together in 1992.
At the commencement of cohabitation, the husband owned an interest in a property, superannuation and a motor vehicle. He subsequently transferred the property and vehicle to his former wife as part of their property settlement. He received an inheritance following his mother’s death in the amount of $30,000 and held shares of nominal value in UU Pty Ltd.
At the commencement of cohabitation, the wife owned an interest in a property near Town LL, NSW, known as “D Property”, which was subject to a mortgage. She also had an interest in a property in Perth, Western Australia.
On 10 August 1992 the husband and wife registered H Pty Ltd, through which they conducted a research business. The husband and wife were directors and shareholders.
In February 1994 the husband and wife were married. It was the second marriage for each of them.
In around 1995 the husband and wife borrowed $100,000 to develop D Property.
The only child of the marriage, Y, was born in 1996.
On 23 July 1998 the Perth property was transferred to the joint names of the husband and wife and they borrowed money on the security of that property.
In 1999 H Pty Ltd (as Trustee of the E Super Fund) purchased a property at B Street, Suburb C in Sydney.
In January 2004 the husband and wife purchased a property at VV Street, Suburb WW in Townsville on behalf of the Super Fund.
In January 2004 the husband and wife travelled to Country J with the intention of living in a property they had purchased online for $26,000. This property was property known as Villa II and was located at Town XX, Country J (“Villa II”). Mr L was the broker for the purchase. Upon arriving in Country J, they determined that the residence on the property required renovation. It was asserted by the wife that she and the husband commissioned Mr L to organise the renovations. It is not disputed that renovations were undertaken.
On 26 September 2005 the Super Fund purchased the FF Town property. The managers of FF Town Resort contracted to lease-back the property starting on 15 June 2006. Subsequent agreements continued that arrangement until at least 21 September 2007.[1]
[1] Exhibit C
It is the wife’s case that prior to 2007 she and the husband decided to sell up and to move to Country J. As I understand his case, to some extent the husband disagreed with both propositions. Email correspondence between them does not reveal a specific agreement and it is apparent, for example, that they also mentioned the concept of the family living in Eastern Europe. However, despite his case to the contrary, there is no doubt that the husband knew about and cooperated in the sale of some properties.
In February 2007 the property at VV Street, Suburb WW in Townsville was listed for sale.
In March/April 2007 the wife sold YY Street, Suburb ZZ in Canberra, Australian Capital Territory.
In June 2007, the property at AB Street, Suburb BC in Townsville, Queensland was listed for sale.
In July 2007, the property at CD Street, Suburb DE in Townsville, Queensland was listed for sale.
On 22 August 2007, the sale completed of AB Street, Suburb BC. The net proceeds of sale amounted to $118,874.41. The wife directed $70,000 to the ABN Amro Morgan Account. The balance of $48,874.71 was drawn in the wife’s maiden name and that of the husband.
On 28 September 2007, the sale completed of the former home at EF Street, Suburb WW in Townsville, Queensland. The net proceeds were $337,822.21. The wife directed $200,000 to the H Pty Ltd account, $92,554 to her Amro Morgan account, drew two cheques of $20,000 to A Snow (the initial of the wife’s given name and her maiden surname) and # Peters (the initial of the husband’s given name and his surname) and $5,267.50 to # & A Peters. One cheque for $20,000 was deposited into a joint account.
On 1 October 2007, the husband and wife completed the sale of IJ Street, Town YZ, Queensland. The net proceeds were $153,650. The husband said that he was not aware of the details of distribution of the proceeds. The wife directed $80,000 to her Amro Morgan account. She also directed two cheques in the name of # Peters and A Snow, for $35,000 and $38,650.71.
It is common ground that some of the proceeds of sale went missing. During oral evidence the wife said that some of the proceeds of sale were given by her to the husband in cash. The husband asserted that the wife retained the proceeds.
On 2 November 2007, the wife exchanged contracts for the sale of D Property to Mr Weston for $120,000.
At some point the wife resigned as a Director of H Pty Ltd.
On 28 and 29 November 2007 the wife transferred by cash and cheque, four amounts totalling $70,500, into the Trust account of the conveyancer dealing with the sale of D Property. As I understand it, those moneys were applied to discharge a debt associated with another property but in respect of which D Property was nominated as security. That debt had to be discharged in order to give title of D Property to Mr Weston.
The D Property sale completed on 30 November 2007. Despite the representations on the transfer, no moneys were actually paid by Mr and Ms Weston to the wife for the property.
In early December 2007 the wife departed Australia with the child. That was the event that precipitated these proceedings. The husband asserted that this was done without notice to him. As I understand her case, the wife does not assert that she gave the husband notice of her travel arrangements but rather that he must have known then or soon after, that she and the child had travelled to Country J.
For many years thereafter, the wife and the child resided in Country J.
On 18 December 2007 the husband filed the application that commenced these proceedings in the Federal Magistrates Court (as the Federal Circuit Court was then known). On that same day and without notice to the wife, the husband obtained the following orders from that Court:
1.Leave be granted to proceed on an ex parte basis.
2.Pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue and warrant issue authorising and directing the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all states and territories of the Commonwealth of Australia to take possession of the child, [Y] born … 1996, and to deliver the child to the care of the Father, [MR PETERS], and that such warrant be in the following terms:
1.You are authorised and directed with such assistance as you require, and if necessary by force, to find and recover the child [Y] born … 1996.
2.You are required to return and deliver the child to the applicant husband [MR PETERS] at [FF Town] Resort, [FF Town], Queensland
3. For the purpose of finding and recovering the child you are authorised and directed, with such assistance as you require and if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may have been found.
4.The Registrar must give you any information provided to the Registrar under an order pursuant to this Warrant that may assist you in finding and recovering the child.
5.[MS PETERS] (AKA [A SNOW] or AKA [GH SNOW]) is prohibited from again removing or taking possession of the child.
6. If [MS PETERS] (AKA [A SNOW] or AKA [GH SNOW]) again removes or takes possession of the child she may be arrested without a warrant.
3.Both parties be restrained from removing and/so causing or allowing the child to be removed from the Commonwealth of Australia and that the Australian Federal Police place the name of the child on the airport watch list in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list until further Order of the Court.
4.The Respondent forthwith surrenders all passports of the child, including his United Kingdom and Australian passports, to the Registrar of the Court.
5.Both parties be restrained from applying for a passport in the name of the child or in the name of that party and the child.
6.Both parties be restrained from attempting to take the child out of Australia.
Parenting
7.The child, [Y] born … 1996 live with each parent on a shared care, week on week off basis with changeover to occur each Sunday. The parent who the child is not living with for that week deliver the child to the other parent’s residence at 4.00pm Sunday.
8.The mother and father be responsible for the day to day care, welfare and development of the child of the marriage during the periods that the child is in their respective care.
9. The mother and the father are to have equal shared parental responsibility for the major long term issues of the child including but not limited to:-
a.the child’s education (both current and future);
b.the child’s religious and cultural up bringing;
c.the child’s health;
d.the child’s name;
e. changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent .
10.The parties are to consult with each other about decisions to be made in exercise of their equal shared parental responsibilities as follows:-
a.They shall inform the other parent about the decision to be made;
b.They shall consult with each other on the terms that they agree;
c.They shall make a genuine effort to come to a joint decision.
d.Failing agreement shall attend at a mediation centre such as Relationship Australia or Centrecare or Family Relationships Centre.
11.The mother and father will ensure the child is available to communicate with parent the children are not living with pursuant to these orders, at all reasonable times agreed between the parents and failing agreement:
a. Each Monday, Wednesday and Friday at 6.30pm; with the parent with whom the child is not living with to initiate the call.
12.Notwithstanding the provisions of paragraph 7 above:
a.The father spend time with the child from 5:00 pm Christmas Eve until 12 noon Christmas Day in the year 2007 and each odd numbered year thereafter;
b.The mother spend time with the child from 5:00 pm Christmas Eve until 12 noon Christmas Day in the year 2008 and each even numbered year thereafter;
c.The father spend time with the child from 12 noon Christmas Day until 5.00pm Boxing Day in 2008 and in even numbered years thereafter;
d.The mother spend time with the child from 12 noon Christmas Day until 5:00 pm Boxing Day 2007 and in odd numbered years thereafter;
e.The father spend time with the child between 5.00pm on Saturday preceding Easter Sunday and 12.00 noon Easter Sunday in 2008 and each even numbered years thereafter;
f.The mother spend time with the child between 5:00 pm on Saturday preceding Easter Sunday and 12 noon Easter Sunday in 2009 and each odd numbered years thereafter;
g.The father spend time with the child between 12 noon Easter Sunday and 5.00pm Easter Monday in 2009 and in each odd numbered years thereafter;
h.The mother spend time with the child between 12 noon Easter Sunday and 5.00pm Easter Monday in 2008 and in each even numbered years thereafter;
i.The father to always spend time with the child between 9:00 am and 5:00 pm Sunday on the weekend which includes Fathers Day;
j.The mother to always spend time with the child between 9:00 am and 5:00 pm Sunday on the Weekend which includes Mothers Day;
k. In the event that the child’s birthdays fall on a day the child is living with the father pursuant to these Orders, the mother have the child for a period of not less than four hours at times agreed between the parties;
l.In the event that the mother’s birthday falls on a day when the child are living with the father pursuant to these Orders, the mother have the child for a period of not less than four hours at times agreed between the parties;
m.In the event that the father’s or the child’s birthday falls on a day when the child is living with the mother pursuant to these Orders, the father have the child for a period of not less than four hours at times agreed between the parties;
n.That the mother and father are restrained from taking the child away from the Townsville/Thuringowa area without the knowledge and consent of the other parent.
Injunction re Property
13.The Respondent be restrained and an injunction issue restraining the Respondent from selling, mortgaging, encumbering or in any way dealing with her interest in any or all of the following:
a.the property described as [B Street, Suburb C], Sydney in the State of New South Wales, Title Reference Folio …,
b.the property described as Unit [2], [FF Town] Resort, [GG Street, FF Town] in the State of Queensland, Title Reference …;
c.the property described as [YY Street, Suburb ZZ] in the State (sic) of ACT, Title Reference Volume … Folio …’
d.the property described as The Villa [II, Town XX, Country J];
14.The Respondent be restrained and an injunction issue restraining the Respondent from dealing with, or disposing of, any of the proceeds from the sale of the following properties:
a.the property description of [VV Street, Suburb WW], Townsville, Title Reference …;.
b.the property description of [AB Street, Suburb BC] in the State of Queensland, Title Reference …;
c.the property description of [CD Street, Suburb DE] in the State of Queensland, Title Reference …;
d.the property description of [IJ Street, Town YZ] in the State of Queensland, Title Reference …;
e.the property description of [EF Street, Suburb WW] in the State of Queensland, Title Reference …; and
f.the property description of [D Property], Lot [JK], [Town LL] in the State of New South Wales, Title Reference unknown.
15.The Respondent be restrained from remitting or causing to be remitted any money out of Australia other than in the normal course of the Respondent’s business activities irrespective of which entity those activities are being conducted.
16.If the Respondent proposes to remit any money from Australia for a purpose other than usual business activities of the Respondent, that the Respondent give the Applicant not less than 14 days notice in writing, such notice to be given to the lawyer for the Applicant of any intention on her part to remit such money overseas.
17.The Respondent be restrained and an injunction issue restraining the Respondent from withdrawing any capital from or changing or in any other way dealing with the capital in account No. …S1 in the name of [A Snow] (the respondent) with [Z] Credit Union, without first giving the application 21 days notice in writing of her intention to do so, such notice to be given to the lawyer for the Applicant.
18.The Respondent:
a.Cause any money received in respect of the companies [H] Pty Ltd ACN …, and [D] Pty Ltd ACN … (“the companies”) or any of them to be paid into a bank account of that company used and operated in the usual course of business of that company.
b.That on or before the 15th day of each month the Respondent cause to be sent to the Applicant, in respect of the Companies , photocopies of:
i.All bank statements in respect of the Companies for the preceding month;
ii.All invoices prepared by and sent out by the Companies for the preceding month.
19.That the Respondent give the Applicant not less than 21 days notice in writing, such notice to be given to the lawyer for the Applicant, of any proposal by a party to do any of the following acts or things in respect of the entities:-
a.[H] Pty Ltd ACN …
b.[D] Pty Ltd ACN …
c.E Superannuation Fund ABN … .
That is to say:
d.sell, dispose of, encumber transfer or otherwise deal with any shares owned by the parties or either of them;
e.vary, modify, change or amend the memorandum and articles of association;
f.resign from any directorship or position of office or cause, suffer or permit the appointment of any further or other directors or other office bearers or cause the Applicant from being removed as a director;
g.cause, suffer, permit or vote in favour of any resolution for the issue or allocation of any further shares in any class;
h.sell, dispose of or encumber any assets;
i.change, suspend or cancel the on-line banking facilities with the Westpac Banking Corporation and [Z] Credit Union Ltd and/or the access code in relation to same or do anything limiting or restricting or preventing the Applicant’s access to them;
Service
20.Personal service upon the Respondent of the Application, Financial Statement and Affidavit filed on 18 December 2007 be dispensed with upon the said documents together with a copy of this Order being forwarded to the Respondent by email at the email address, … .
Further Orders
21.The further hearing of the Application be adjourned to 9:30 am on Monday, 4 February 2008 at Townsville.
22.The Husband have liberty to apply.
On 18 December 2007 the husband lodged a caveat on the title of the property at Suburb ZZ, Australian Capital Territory.
On 25 December 2007, the husband was admitted to hospital in Canberra with acute renal failure. He was released in January 2008.
The husband arranged with his son, Mr R Peters, the second respondent, for K Limited to perform work for clients of H Pty Ltd. K Ltd is owned by Mr R Peters, being a corporate vehicle for his professional work.
It was the husband’s evidence that he did not resume his research roles thereafter, except for a small, one-off job for LM Ltd in 2008.
The husband said that in 2008 he learned that the wife had (permanently) relocated with the child to Country J. He travelled to Country J on a Tourist Visa. The husband lived in Country J for much of the time thereafter. He was assisted there by a friend called Mr MN. Mr MN owned a company called M Ltd and at his request, the husband became an Honorary Director and Chairman of that company. Although the wife contended otherwise, it was the husband’s evidence that he held no shares in that company and was not paid directors’ fees by the company. The evidence does not permit a confident finding about the husband’s role with that company.
On 10 March 2008 the wife was ordered by the Federal Magistrates Court to pay the husband’s costs in the sum of $205.00.
On 14 May 2008 the wife transferred the balance of $12,023.99 from the superannuation fund account with Amro Morgan to a Country UUU account in the name of Mr L.
As a result of the husband’s application, on 2 September 2008 proceedings were commenced against the wife in Country J, under the Hague Convention on the Civil Aspects of International Child Abduction.
On 23 June 2009 the husband’s solicitor wrote to the wife to seek her agreement to sell the FF Town property. There were said to be outstanding levies of over $11,000 and costs accrued of $19,494.32. The wife refused.
In July 2009 Mr Weston exchanged contracts for the sale of D Property to a third party, for $355,000.
Following a hearing on 10 September 2009, on 27 October 2009 the Federal Magistrates Court made the following orders:
(a)That [D] Pty Ltd be joined as a party to the proceedings and as second respondent.
(b)That within 14 days of the date of this order (and subject to order 5 below), the husband and the wife do all acts and things and sign all documents, instruments and writings as may be necessary to transfer to [D] Pty Ltd (as trustee of the [E] Superannuation Fund) all that piece and parcel of land contained in certificate of title reference … and known as Unit [2, FF Town Resort, GG Street, FF Town] (“the [FF Town] property”).
(c)That within 14 days of the date of this order (and subject to order 5 below), the husband as sole director of [H] Pty Ltd (formerly known as “[H1] Pty Ltd”) do all acts and things and sign all documents, instruments and writings as may be necessary to transfer to [D] Pty Ltd (as trustee of [E] Superannuation Fund) all that piece and parcel of land contained in certificate of title, folio identifier … and known as [B Street, Suburb C], Sydney (“the [Suburb C] property”).
(d)That the transfers referred to in orders 2 & 3 above are to be effected conditional upon [D] Pty Ltd being appointed the trustee of the [E] Superannuation Fund.
(e)That within seven days of the date hereof the husband do all acts and things and sign all documents necessary pursuant to clause 4.5 and 4.6 of the deed of variation of the [E] Superannuation Fund dated 6 June 2006 to appoint [D] Pty Ltd as trustee of the said fund.
(f)That, pending further order, the husband be restrained from causing the removal of [D] Pty Ltd as trustee of the said fund.
(g)That so far as the wife contends that it is necessary, within seven days the husband do all acts and things and sign all documents necessary for her to become a director of [D] Pty Ltd.
(h)Pending further order, and upon the wife’s undertaking as to damages, [D] Pty Ltd be restrained from transferring or encumbering the properties transferred to it, pursuant to orders 2 & 3 above.
(i)In the event the husband or the wife has refused or neglected to comply with the signing of documents as required pursuant to these orders within seven days of being requested to do so then the Court shall appoint a registrar of the court to execute the deed or instrument or any other document as may be required to give effect to compliance with the orders and authorising the registrar to execute such documents and do all acts and things necessary to give validity and operation to the documents to be signed.
(j)That order 1 of the orders dated 4 February 2008 be discharged.
(k)The matter is stood over for mention on 3 December 2009 at 9.30am which will include the wife’s application in a case filed 17 September 2009.
(l)The further application in a case filed by the wife on 2 October 2009 with a return date of 30 November 2009 at 9.30am will also be vacated and listed on 3 December 2009 at 9.30am.
NOTATION
(m)The Court is of the preliminary view that the proceedings should be transferred to the Family Court of Australia at Sydney, but the Court wishes to provide the parties with an opportunity to be heard with respect to that issue.
It was the evidence of Mr R Peters that during the marriage and since, he advanced to his father substantial sums of money, both directly and indirectly. On 24 November 2009 the husband entered a loan agreement with Mr R Peters in relation to past and future advances from son to father.
On 3 December 2009 the proceedings were transferred to this Court.
In late December 2009 the divorce granted to the husband and wife by the Federal Magistrates Court in late November 2009, took effect.
In June 2010 the wife sent copies of an unsigned affidavit prepared for these proceedings, to different offices in Country I, Country PQ and Australia being offices associated with Ms R Peters. In that affidavit the wife denigrated the husband and Mr R Peters.
In July 2010 the husband received Australian pension payments (presumably, the age pension), back-dated to May 2010.
On 26 November 2010 the Hague proceedings in Country J about the child, initiated as a result of the application of the husband, were dismissed.
Following a hearing on 28 January 2011 the following orders were made by this Court on 11 March 2011:
(1)An order is made in terms of the order sought at paragraph 3 of the husband’s Application in a Case filed 9 September 2010 as follows:
3.That in furtherance of Order 3 of the Orders made by Federal Magistrate Kemp on 27 October 2010 the Court make the following Order to require that the Registrar General of NSW do all things and sign all documents to:
3.1In accordance with Section 138 of the Real Property Act 1900 issue a new edition of Certificate of Title in relation to the property being that parcel of land contained in Certificate of Title Folio Identifier … and known as [B Street, Suburb C], Sydney ([Suburb C]).
3.2That upon the Certificate of Title being issued the Registrar General process the Application for Transfer of the property to [D] Pty Ltd (as Trustee of the [E] Superannuation Fund).
3.3That upon completion of the Certificate of Title pertaining to [Suburb C] to [D] Pty Ltd the Certificate of Title issued in the name of [D] Pty Ltd be forwarded to [F] Pty Ltd, P.O. Box …, [Suburb C], NSW 1… to be held in safety custody.
(2)Otherwise the Applications in a Case filed on behalf of the wife on 2 August 2010 and 24 September 2010 and her Responses filed 17 September 2010 and 21 September 2010 and the husband’s Application in a Case filed 9 September 2010 and his Response filed 2 November 2010 are dismissed.
On 2 September 2011, orders to prepare the proceedings for trial were made in the following terms:
1.These proceedings are listed for final hearing before Justice Loughnan, estimated hearing time 6 days commencing on 4 June 2012.
2.In the event that any party becomes aware of any issue that would prevent the hearing commencing on 4 June 2012 or continuing to conclusion over those days, that party is as soon as practicable to restore the proceedings before the Court on giving at least 7 days notice to each other party to the proceedings and to the Registry.
3.That within 28 days from today’s date the applicant husband file and serve a further Amended Initiating Application.
4.That within a further 28 days thereafter any respondent file and serve a Response or Amended Response or Further Amended Response to that Initiating Application.
5.That any party opposing orders sought in those Responses file and serve a document setting out the orders sought in opposition to that Response within a further 14 days thereafter
6.That not later than 2 April 2012 the parties file and serve the affidavits of all lay witnesses and in that regard there is to be only one affidavit from each deponent.
7.By the same date the husband and wife are to file and serve updated Financial Statements.
8.That within 56 days from today’s date the husband and wife file affidavits of discovery of documents, setting out the documents other than affidavits in their possession that will be relied on or are in any event relevant to the issues in these proceedings that are in their possession or control or which they are otherwise obliged to disclose pursuant to the Rules of court.
9.That within 28 days from today’s date the solicitor for the husband provide to Mr [Weston] and to the wife a letter setting out the names of three valuers for the purpose of providing a historical valuation of a property at KK Street, Town LL] in the State of New South Wales as at 2 November 2007..
10.That within a further 28 days thereafter the wife and Mr [Weston] respond to the solicitor for the husband in writing nominating a preferred valuer or preferred valuers amongst those three valuers suggested for the purposes of providing that valuation. In the event that there is not a valuer among those three valuers agreed to commonly by the wife and Mr [Weston] then the solicitor for the husband, unless those parties otherwise agree, is authorised to instruct a valuer from among those valuers to prepare that valuation.
11.In any event, if there is no agreement to a valuer then the parties are at liberty to adduce evidence of adversarial experts in relation to the value of that property as at 2 November, 2007 and in the event that there is more than one valuer and the valuers have a different opinion of the historical valuation the parties are to arrange a conference of experts prior to the trial and a memorandum to come from the experts as a result of the conference setting out the areas in which they agree, the areas in which they do not agree and the reasons they each contend their valuation should be preferred over that of the other expert.
12.All parties have liberty to restore the proceedings to the list on giving 7 days’ notice to the Court and to each other party in relation to the preparation of these proceedings for final trial. That liberty is to be exercised on giving that notice and the party seeking to restore the matter is to include in concise terms the directions or orders sought and the reasons for those directions in the correspondence to the court and to each other party.
13.All pending interim and interlocutory applications outstanding as at today’s date are formally adjourned for mention only to the first day of the final trial.
On 4 November 2011 orders were made for the sale of the FF Town and Suburb C properties in the following terms:
1.That by consent orders are made in terms of the document titled “Consent Orders” marked Exhibit 1 as set out hereunder:
“1.That the Fourth Respondent, Ms [RR], be removed as a party to these proceedings.
2.That all Orders sought against the Fourth Respondent by the Applicant are dismissed.
3.That all Orders sought against the Applicant by the Fourth Respondent are dismissed.
4.That each party pay their own costs of and incidental to these proceedings.”
2.That the wife pay to the solicitor for [Mr HH] and [Company QR] the costs of the Amended Application in a Case filed 28 October 2011 insofar as that Application sought orders against Mr [HH] and [Company QR] together with, but not limited to, the costs of the appearance today. That those costs be as agreed or assessed by a taxing officer AND subject to the process of assessment if necessary, the costs be paid within three months from today’s date.
3.That orders be made in terms of paragraphs 1-9 of the husband’s Response to an Application in a Case filed 26 October 2011 as set out hereunder AND the Court noted that means the dismissal of the wife’s Amended Application in a Case filed 28 October 2011:
1.That the Orders sought by the wife in her Application in a Case filed 9 September 2011 and in a letter to the Court dated 26 September 2011 be dismissed.
2.That the husband forthwith do all things to cause [D] Pty Limited to list the property situate at and known as Unit [2, FF Town Resort, FF Town], Queensland, Title Reference …, to be listed for sale forthwith in accordance with the Orders sought herein at Orders 5.1 to 5.4 inclusive.
3.That the husband forthwith do all things to cause [D] Pty Limited to list the property situate at and known as [B Street, Suburb C], New South Wales, Folio Identifier: …, to be listed for sale forthwith in accordance with the Orders sought herein at Orders 6.1 to 6.2 inclusive.
4.That the net proceeds of sale upon the completion of the sale of each of the properties identified in Orders 2 and 3 herein be deposited in a controlled money account with the respective Conveyancing Solicitors, pending Orders being made by the Family Court of Australia, in the substantive application listed for Hearing in June 2012.
5.That for the purposes of the sale of the [FF Town] property the Husband shall do all things necessary and sign all necessary documents so as to cause [D] Pty Ltd to place the property situate at Lot [1], Unit [2, FF Town Resort, FF Town], Queensland:
5.1On the market for sale by private treaty forthwith at a price agreed between the parties or failing such agreement in the first instance at a list price of $75,000 and
5.1.1at the expiration of 28 days from the date that the property is first marketed for sale, if it is not sold the marketing price be reduced by 5% and
5.1.2at the expiration of each 28 day period thereafter, whilst ever the property remains unsold, the marketing price be reduced by 5% from the price at which the property was last marketed until such time as it is sold.
5.2Cause [D] Pty Ltd to appoint a Solicitor Conveyancer by agreement with the wife to prepare the contracts and complete the sale and failing agreement appoint Boulton, Cleary and Kearn, Solicitors Townsville.
5.3Cause [D] Pty Ltd to list the said property forthwith, with an agent agreed with the wife and failing agreement with [TU] Real Estate, …, [FF Town], Queensland, for the sale of the property by private treaty at the earliest possible date and;
5.3.1Execute all documents requested by the agent for the sale of the said property.
5.3.2Cause [D] Pty Ltd pay to the agent, any sums reasonably requested for advertising expenses in relation to the sale.
5.3.3 Co-operate in every way with the agent in relation to the sale of the said property.
5.3.4 Execute Contracts for Sale.
5.3.5 Execute all other documents necessary to complete the sale.
5.4That subject to Order 6.2.4 below the Husband cause [D] Pty Ltd to do all acts and things necessary to procure that upon the sale of the property the proceeds of sale shall be paid in the following manner and priority:
5.4.1 In payment of agent’s commission and auction expenses (if any) due on the sale.
5.4.2 In payment of legal costs of sale.
5.4.3 In discharge of the outstanding levies due an payable to the Body Corporate
5.4.4 In discharge of the outstanding rates due to Townsville Council.
5.4.5 In reimbursement of $576.95 to [Mr R Peters]
5.4.6 Subject to Order 6.3 herein as to the net balance to be retained in a controlled money account in accordance with Order 4 herein.
6.That for the purposes of the sale of the [Suburb C] property:
6.1That the husband do all things necessary to cause [D] Pty Ltd to do all acts and things necessary to place property situate at and known as [B Street, Suburb C], New South Wales on the market for sale by private treaty forthwith at an agreed price with the wife and failing agreement at a sale price of $230,000. and the Husband shall cause [D] Pty Ltd to do all things necessary and sign all necessary documents so as to:
6.1.1 Place the said property with an agent agreed with the wife and failing agreement [UV] Real Estate for the safe of the property by private treaty at the earliest possible date
6.1.2 Appoint a Solicitor Conveyancer by agreement with the wife and failing agreement appoint Peter Williams, Solicitor [G Suburb].
6.1.3Execute all documents requested by the agent for the sale of the said property.
6.1.4 Pay to the agent equally, any sums reasonably requested for advertising expenses in relation to the sale.
6.1.5 Co-operate in every way with the agent in relation to the sale of the said property.
6.1.6 Execute Contracts for Sale.
6.1.7 Execute all other documents necessary to complete the sale.
6.2That the Husband cause [D] Pty Ltd to do all acts and things necessary to procure that upon the sale of the property the proceeds of sale shall be paid in the following manner and priority:
6.2.1 In payment of agent’s commission and auction expenses (if any) due on the sale.
6.2.2 In payment of legal costs of sale.
6.2.3 In discharge of any outstanding rates and levies pertaining to the [Suburb C] Property
6.2.4 In the event the [Suburb C] property is sold prior to the [FF Town] property completing those costs listed at 5.4.3 and 5.4.4
6.2.5 Subject to Order 6.3.as to the net balance to be retained in a controlled money account in accordance with Order 4 herein.
6.3That in the event one property is sold prior to the other property the husband is to do all things to cause [D] Pty Ltd to authorise the Solicitor/ Conveyancer to pay from controlled moneys whenever the rental income is otherwise insufficient, as and when they fall due all statutory levies, rates, taxes and charges, and reasonable maintenance costs and costs of sale, pending sale and the husband shall authorise the Solicitor/ Conveyancer to advise the wife of such draw downs from the controlled money account as it occurs.
6.4That the wife be restrained from preventing or interfering with the listings or conveyance or completion of the sale of either or both properties in accordance with any Order made by this Court.
7.That the parties do all things, sign all documents and give all consents necessary to give full force and effect to these orders.
8.That if either party refuses or neglects to sign or execute any document, instrument or writing or comply with any order contained herein after seven days of being required to do so, pursuant to Section 106A of the Act that the Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to orders herein.
9.Leave to either party to have liberty to apply further in respect of the implementation of any or all of these orders.”
4.That until further order the wife be restrained from serving on any person, party or entity not already a party to these proceedings, an application seeking orders against that person, party or entity without the prior leave of the Court.
5.That the costs of today be reserved.
In about December 2011, the Suburb C and FF Town properties were listed for sale.
On 14 February 2012, contracts were exchanged on the Suburb C property for $230,000. The sale completed on 28 March 2012 and the net proceeds were paid into a controlled money account in the name of Peter Williams, solicitor.
As at 13 March 2012, the outstanding rates on the FF Town property stood at $4,556.91 and the levies were $39,308.49.
In May 2012 there was a payment of the outstanding council rates on the FF Town property pursuant to the orders of 4 November 2012.
On 23 May 2012, the following orders were made:
1.That the husband do all things and sign all documents necessary to instruct Mr Peter Williams, solicitor, to cause a cheque to be forthwith drawn on the controlled monies account in favour of [Mr XY] in the sum of $5,964.00 and to cause that cheque to be despatched to Mr [XY] at [JJ Street, Suburb FG] SA 5… AND unless the Court otherwise orders those funds are deemed to be by way of interim property settlement in favour of the wife.
2.That the husband do all things and sign all documents necessary to instruct Mr Peter Williams, solicitor, to cause a cheque to be drawn from the controlled monies account payable to Mr [R Peters] in the sum of $2,680.00 in respect of reimbursement of the husband’s airfares AND a further cheque in favour of the husband in the sum of $1,634.00 for the purposes of the husband’s accommodation in Sydney during the trial.
3.That the character of those payments be a matter for Justice Loughnan at the conclusion of the property settlement proceedings.
4.That the parties lodge with Justice Loughnan’s associate by email (…) and forward to each other party by email not later than close of business on 31 May 2012 a Case Outline document which sets out the documents filed by them within the terms of the directions for trial on which they seek to rely.
5.That the Case Outline documents also set out the terms of the orders sought by each party in the event that the orders sought are different to an Application or Response already filed.
6.That the Case Outline documents also set out in brief terms the arguments to be made in relation to the proceedings under s79.
For the purposes of the hearing in June 2012, there were a number of applications, responses and other documents setting out orders sought by the parties. Prior to the commencement of the oral evidence the parties confirmed the orders they sought although there were further developments in that regard during the trial.
At the commencement of the hearing in June 2012 the wife said that she sought that a watch list order made on 18 December 2007 in the Federal Magistrates Court be set aside. The orders made on 18 December 2007 included a recovery order, an injunction preventing the removal of the child, Y from Australia and a watch list order. On 2 September 2011 it was ordered that all other interlocutory applications be listed, for mention only, on the first day of the final hearing. Ultimately and in my view, sensibly, the husband agreed to the discharge of the injunction and watch list orders. On 12 June 2012 those orders were discharged, by consent.
There were many other applications filed by the wife in the proceedings. In the course of the June 2012 hearing, she said that other than those identified above, all her applications were withdrawn. There was no objection to that withdrawal by the other parties.
Judgment was reserved on 12 June 2012.
As I have said, the husband died in September 2012.
On 30 January 2013 the wife made an oral application for leave to continue the property settlement proceedings against the husband’s legal personal representative.
Probate was granted of the husband’s estate to Mr R Peters in April 2013.
On 12 August 2013 leave was granted unopposed for the continuation of the property settlement proceedings against Mr R Peters, with directions being made for the resumed hearing, including the appointment of two further hearing dates, being 14 & 15 October 2013.
That hearing was conducted and judgment was reserved on 15 October 2013.
Credit and Submissions
The Evidence of the Witnesses
The only witnesses called for cross-examination were the parties and Ms SS. There are some issues that fall to be determined solely or largely by reference to the testimony of the parties. To that extent credit is relevant. In this case, which had been characterised by very serious allegations and has been conducted in a highly charged atmosphere, it is particularly important to record that the purpose of credit findings is to assist in assessing the reliability of the testimony of a witness, not to evaluate the witness as a person or to criticise their conduct. To take one obvious example, a person may be found to be not creditworthy, solely because he or she has a poor memory.
The husband gave oral evidence in June 2012. He was a very poor witness, in the sense that he did not have a clear recollection of important events. That necessarily meant that he was unable to support elements of his case, for example in relation to the part he is alleged to have played in the alienation of the Town LL property. During his cross-examination he was obliged to repudiate key propositions from his affidavit. For example:
a)At paragraph 57 the husband deposed to there being a mortgage in the vicinity of $117,220 on the Town LL property in 2007. Upon sighting documents he was obliged to concede that the mortgage had been discharged several years earlier. However, this error should be seen in the context of the fact that D Property was used as security in relation to a loan raised to purchase another property;
b)At paragraphs 44 and 45 the husband repudiated the signature on the transfer of the property at YY Street, Suburb ZZ in the ACT. I understood him to concede during cross-examination that the signature on the transfer was his;
c)At paragraph 47 of his affidavit the husband asserted that the property at VV Street, Suburb WW, Townsville was sold without his knowledge. During cross-examination he agreed with the proposition that he asserted that the property was put on the market for sale and sold without his knowledge or consent. The husband then conceded that he had signed various documents associated with the sale, including the contract for sale. When the contradiction in his evidence was put to him, the husband adopted the suggestion that he knew about the impending sale but was not told when the sale was completed. Suffice it to say, they are substantially different propositions.
Other assertions made by him were not soundly based. For example in paragraph 18 of his affidavit the husband asserted that renovations to Villa II in Country J cost about $A1,000. When asked about that in cross-examination he said that his estimate was based on a brother of the vendor telling him that the property was sold for $7,000 and someone else expressing the opinion that it was worth $8,000 after the renovations. In other words the estimate did not relate to the cost of doing the work.
The husband’s evidence about the reason he authorised someone in mid 2007 to arrange to transfer his interests in Villa II to the child, contradicted what he told a Country J Court in the Hague proceedings.
The wife, held steadfastly to her written testimony. However, she generally did not limit her answers to the subject matter of the question. Many of her answers contained detail about incidental or peripheral matters. Despite being warned, the wife was unresponsive on many occasions and that cast serious doubt on her capacity or inclination to candidly address the question asked.
To my observation Mr R Peters was a good witness, not being successfully challenged on any significant issue.
Mr Weston was not greatly challenged in cross-examination. When he was challenged, he demonstrated little recollection of dates and places. He struggled with the date or even the timeframe of various milestones in his life. That said, Mr Weston was not challenged in relation to the identification and extent of the improvements he and his wife made to D Property between 2007 and 2009. He did not dispute that the property was transferred to him and that, despite the terms of the conveyancing documents, the transfer was without consideration. Indeed it is his evidence that the property was gifted to him and his wife. Mr Weston appeared to be a guileless and truthful witness.
Ms SS gave evidence as an expert and her credit is not in issue.
The proceedings involve different versions of events that occurred many years ago. The formal records are incomplete and the only witnesses to some events, the husband and the wife, were not able to support aspects of the cases they sought to argue. For the October 2013 hearing, the husband was not available to give evidence. It should also be noted that in many cases, the claims made were very serious, such as allegations of significant fraud. For such findings to be made, s 140 of the Evidence Act1995 (Cth) requires something more than a bare featherweight on the side of the party making the contention.
Submissions
The volume of evidentiary material and written submissions in these proceedings is out of all proportion to the value of the assets of the marriage. Nevertheless it might assist to understand the nature of the proceedings and the environment in which they were conducted if something of the written arguments of the parties is included.
The wife submitted that no weight could be placed on the husband’s evidence. She submitted that the husband produced no evidence to support his claims and that his allegations are therefore unsubstantiated. She said he contradicted himself, for example, in claiming he knew nothing about the sale of the properties at Suburb DE, Suburb BC, Suburb WW and Town YZ while the evidence showed that he consented to the sales. He also admitted that he was contacted by the conveyancing solicitor to confirm his instructions. The wife submitted that this put into doubt the creditability of all his evidence.
The wife submitted that her initial contributions were greater than those of the husband. At the commencement of their relationship, the wife owned two properties, D Property and the property at Suburb AAA in Perth, while the husband held assets in the amount of $2, comprising his interest in UU Pty Ltd. It was asserted that the husband produced no evidence of any other initial contribution.
The wife submitted that the contributions of the husband and wife should be assessed as equal throughout the marriage.
Assisting to understand the tenor of the wife’s case, her submissions included:
I’m here today as the accused in a case. [The husband] has alleged that I’ve forged his signature on all documents pertaining to the sales of [Peters] properties. That I’ve sold all the properties without his knowledge and consent and I’ve disposed of all proceeds without his knowledge and consent.
…
When he lied or forgot about his knowledge or consent about these four properties, it puts into doubt all of what he alleges with regard to decisions to sell, the sales and the proceeds. Even in the face of notarised evidence, he tried to spin a tale. From one affidavit to the next, he spun a tale. Refining his story until he and [Mr R Peters] happened on a plausible explanation but the evolutions of that story are in evidence and dog him all the way. I draw to the court some examples.
The gifting Villa [II] to the child [Y], the explanation for [H Pty Ltd] work coming to be in the hands of [Mr R Peters]. First, he denies [Mr R Peters] had any involvement, then attempts to explain that he tendered for it, then he settled on the sixth story. It is clear to understand from his affidavit that he attempts to distance himself from the money of the marriage and the family business. But in doing so it only makes it more clear that the reason for this is to blame the wife and frame the wife. He doesn’t ever explain what happened to the monies from the two jointly owned properties that he otherwise claims that he did know about.
The court understands that he attempted to shift in time the presence of sub-contractors [Mr MN] and [BBB]. By doing so he could disguise the fact that [H Pty Ltd] had subcontractors [BBB] and [Ms DDD] who in actual fact could have and did do the work of [H Pty Ltd] even after the time the trading activities are alleged to have ceased.
It is clear to the court that he further attempts to link me, the wife with Mr [L], the person who in [Country J] came to my son’s and my aide when we found ourselves alone and penniless in a foreign country and foreign culture. However, he, on the other hand, feels free to acknowledge the assistance of his good friend Mr MN who allegedly likewise supported him in this foreign country without any innuendo or anything untoward about the arrangement.
The court understands that my son and I were resident at our house at Villa II from the day we arrived in [Country J], namely the 7th of December 2007. The court understands that his friend and neighbour, [CCC], referred to in paragraph 5 and our former caretaker is an immediate neighbour.
The court understands that he’s in touch with [BBB], [H Pty Ltd’s] subcontractors, by email as frequently as daily and that the court understands his good friend [Mr MN] is located in [Town EEE in Country J]. [BBB] email at page 141 opens with “As you might know, I’ve sent [BBB] to check up on you”, so there were people everywhere around who he could have contacted and conveyed a message or got a message to me.
So, a phone call to [CCC] or an email to [BBB] or [Mr MN] to check up on us as he has done in the past would settle the question of my whereabouts.
Instead, like an arsonist, he set the fires of litigation burning around me, and inflamed the situation with key words such as abduction, forgery, Bulgaria. The Hague case was nothing but a roust so he could remain continuously living and working in [Country J]. He claims not to have comprehended how his application could have failed. But he holds the answer himself. On 9 July 2010, he informed State Council that he wanted to withdraw the matter and I refer to page 6 of this reference and annex dated 26 October 2010, stamped 2010 but the date is there, July 2010.
[The husband] has misled the court about his residency status in Australia. He has tried to claim being a permanent residence but in fact he holds only a permanent residency visa. He’s misled the court about where he lives and it is clear now that he does not live in Australia but only sometimes visits and this is clear from the Immigration Department’s subpoenaed documents tendered.
He has misled the court about his income being nil and this is clear from Exhibit 1 where he states he has no official income but it pays for his cars and maids and more. In this exhibit, we also find that he also intends to be married to a [Country J] woman.
[The husband] has revealed himself willing to be a participant in schemes and scams. We understand that he is not permanently resident in Australia but maintains the appearance of being so by returning to Australia every 3 months which conveniently coincides with exiting [Country J] for the purpose of renewing his [Country J] Visa and maintains his eligibility for his government Centrelink aged pension.
We’ve seen that he lives with a woman who he describes as a carer, but if this is so, instead of her being an employee, he assigns to her the status of a dependent. It is revealed their rental arrangement is a scheme.
It is my case that [the husband] and [Mr R Peters] are in a plot to divert and secret marital assets and a plot that was hatched a far back as 16 January 2007. Their premeditated plan was put into action throughout 2007 and it is the force behind [Mr R Peters’] initiations for selling the marital assets at this time. [The husband] and [Mr R Peters] dispute the authenticity of the emails but I draw the court’s attention to the characteristics of the emails; simple letters and capital letters inserted in reply, the origin of reply is [Mr R Peters’] address being his address for service at [O University Graduate School] and the consistent appearance of [female given name of FFF] throughout. [The husband] is a discredited an unreliable witness and there can be no weight placed on his testimonies. The letter is the glove that fits this case.
The written submissions on behalf of the husband included the following overview:
The essence of the husband’s submissions is that over a period of months, the wife oversaw and conducted a series of transactions which had the effect of fraudulently removing joint assets from his reach. The wife also alienated a material asset in her sole name to a third party, by way of gift, with a view to defeating an anticipated order in relation to that asset.
The wife took advantage of the trust and confidence reposed in her by the husband to effect these transactions, and to sequester the proceeds which flowed from these transactions out of the husband’s reach.
Some of the proceeds from these transactions are known to have flowed to a foreign national, [Mr L]. It is the wife’s assertion that these transfers to [Mr L] were justified on the basis of a debt owed to him by the [Peters] family. The husband denies the existence of that asserted debt and the wife adduced no evidence either prior to or during the trial which would substantiate the existence or amount of such a debt.
Other proceeds remain unaccounted for by the wife and are presumed either to be retained by her or otherwise to have been dissipated by her, to the detriment of the husband.
The wife’s claims, both in her written and oral testimony, lack coherence, any sound evidentiary foundation and therefore, credibility. In particular, the wife’s claims in relation to the nature of her relationship with [Mr L] are far fetched and fanciful and not sustained by any evidence adduced to the court.
In her financial statements, the wife contends that she has no means of earning an income in [Country J], where she now resides, but that she incurs annual expenses to the value of approximately AUD $200,000. She is unable to demonstrate through any documentary evidence that this is so. Further, she is unable to evidence in any satisfactory way the assertion that [Mr L], as her landlord, lends or otherwise provides the financial support necessary for her to incur the annual expenses to which she attests in her financial statement.
In the husband’s submission, the lack of credibility inherent in the wife’s testimony about her relationship with [Mr L], debts she claims to owe in personam to [Mr L] and debts she claims were owed by the “[Peters] family” to [Mr L] must call into question the credibility of the entire fabric of her story about the chain of property disposals she effected and the destination of the proceeds of those disposals.
Conversely, with the benefit of the documentary evidence adduced by the husband, it is possible to clearly identify the dominant or exclusive hand of the wife in each of the seven property disposals the subject of these proceedings, the flow of the proceeds of six of the seven property disposals into bank accounts solely under her control and the diversion of joint moneys in the case of the seventh property disposal ([Town LL]) to facilitate the discharge of financial encumberances on that property to in turn allow that asset to be gifted, without the acquiescence of the husband, to Mr [Weston], with a view to removing it from the reach of property orders likely to be made by this court.
Written submissions by Mr R Peters included the following:
15.[The wife] has shown herself to be clever and capable. She has shown a degree of financial sophistication having managed to juggle many bank accounts in both joint and sole names, and by acting as a reviewer … for [an investment publication] on investment matters relating to shares and to property (refer to the Exhibit tendered into evidence), as well as in other ways.
16.She has testified and submitted into evidence that my father [the husband] has suffered deterioration in his physical and mental health (refer [the wife’s] affidavit paragraphs 40, 41 and 41). It is ridiculous for her to claim, as she has under cross examination, that she gave him all the money from the property proceeds in cash, and that she then left the country seeking no account of the cash or what had been done with it. It defies reason that she would she give cash to someone whom she believed had failing mental health.
17.It is ridiculous for [the wife] to assert that she gave [the husband] large amounts of cash, or that he passed the cash on to me, as she has done under cross examination, when no evidence is offered in support of either claim. Her claim that cash was given to my father is denied by him, and her claim that cash was given to me is denied by me. It is telling that the first time that [the wife] makes such claims about cash being given to my father or to me in this manner is when she is in the witness box. She never otherwise made these claims, in spite of filing dozens of pleadings with the Court over many years during these proceedings.
18.[The wife] never asked or otherwise enquired about this money. Not to my father, not to me, not to my father’s lawyers, not to anyone it seems. And she offers no evidence to suggest that she did. She also offers no evidence in support of her claims that she gave cash to my father. There are no bank slips and there is no other documentation. Her claims are ludicrous and patently untrue, being concocted in the witness box ad hoc when pressed about what happened to the money that she took.
19.With regard to the debt that [the wife] claims that the [Peters] family owed to Mr [L], it is ridiculous to assert, as she does, that hundreds of thousands of dollars was sent to Mr [L] to repay a [Peters] family debt for which there is no evidence of existence.
20.[The wife] admits to living under the same roof as Mr [L] for many years in [Country J] and assets that he is her landlord only. On this basis, [the wife] claims that Mr [L] has lent her an amount that according to her financial statement must be on the order of $900,000 and yet, there is no evidence of the existence of such a debt, there is no loan agreement, and [the wife] gives testimony in the witness box that she does not know how much she owes Mr [L], that he does not know how much she owes him, and that they don’t discuss the loan.
21.Further, [the wife] admits in her testimony that Mr [L] has no security for the loans that he has extended to her and that there is no reasonable basis on which to expect that she will be able to repay him. Not a scrap of evidence is produced in support of this supposed loan because no such loan exists.
22.I submit that the only rational explanation taking all evidence into account, including the significant transfer of funds to Mr [L’s] bank accounts by [the wife] amounting to hundreds of thousands of dollars, and including a sum of $12,023.99 relating to superannuation money of [the husband’s] that should never have left the country and that was transferred after [the wife] knew that these proceedings were underway (refer to Annexure 44, page 328 of [the husband’s] Affidavit), is that [the wife] has a relationship with Mr [L] that goes beyond that of mere landlord and tenant, and that [the wife] is lying about the existence of a debt that she owes to him. Very likely, Mr [L] has benefitted from receiving assets from the marital pot, assets that were directed to him by [the wife] on the basis that he either would return part or all of those assets to her once they were out of the marital pot, or that they would jointly benefit from those assets as they lived together.
23.[The wife] was duly served a Notice to Produce on 22 May 2012 requiring the production of records and evidence in support of the claims that she has made over a period of four-and-a-half years. After all that time, [the wife] has turned up to Court with no evidence save a series of emails between various parties, the authenticity of which cannot be proved, and with some subpoenaed documents relating to a limited amount of work performed by [K Ltd] up to June 2008, the fact of that work being done by [K Ltd] and of [K Ltd] being paid for the work that it performed not being in dispute.
24.It is admitted that [K Ltd] did a limited amount of work during the period December to June 2008 for which it was paid. This has never been denied by me, nor to my knowledge has it ever been denied by my father. [K Ltd] doing such work is consistent with an established relationship where in the past [Company OP], a company in which I was co-founder and shareholder, gave work to my father to do for payment (refer my affidavit paragraphs 23, 24, 25).
25.My father has testified that he gave the work to [K Ltd] knowing that there was not a risk of [K Ltd] (or of [Mr R Peters]) appropriating the relationship with the client and not passing the client and/or work back to [the husband] at some future date when he recovered sufficiently to be able to do the work himself.
26.Some of the work that [K Ltd] was asked to do was done at very short notice and in haste. This was a result of some of the work being outstanding at the time that [the husband] made the request that the work was done due to his incapacity (refer my affidavit paragraphs 32, 37). [K Ltd] did not seek out the work.
27.My father testified during cross examination that [K Ltd] reluctantly did the work. This is true. [K Ltd] had no interest at all in doing the work save to help my father during a period when he was unable to do it. It is asserted on the basis of some email correspondence that supposedly took place between my father and [the wife], that one job, [GGG] October 2007, that appears to be for an amount of $4,400, may already have been invoiced at the time that [K Ltd] was asked to do the work. But no evidence is given that an invoice was issued, that the work had been done or was in any way complete at the time the husband allegedly said in email correspondence to [the wife] “you can invoice”, that any work that might have been done had been done to a satisfactory standard, or that payment was made for that work prior to [K Ltd] doing the work and an invoice for that work being issued.
28.Evidence was given by my father via his testimony that [the wife] invoiced for jobs but that she had no particular knowledge about whether work was complete or incomplete at the time of invoicing, that [H Pty Ltd] had sometimes invoiced for work that had not been done in the past, and that the October 2007 [GGG] job may well have been in that category. [K Ltd] received payment for that work in 2008.
29.[The wife] seems to think, and she asked me about this during her cross examination of me, that I should have knowledge of [H Pty Ltd] clients, knowledge of the directors of [H Pty Ltd] client companies, and knowledge of other aspects of [H Pty Ltd] business.
30.I submit, and I testified to this during cross examination, that I had no knowledge of [H Pty Ltd] matters, and that there is no reasonable basis for assuming that I would have had any knowledge of [H Pty Ltd] matters. I was neither a director nor a shareholder nor an employee of [H Pty Ltd]. I had no business with [H Pty Ltd] prior to [the wife] leaving Australia in December 2007. [The wife] told me nothing about [H Pty Ltd] at any time and nor did my father save to perhaps mention inconsequential matters in passing — and about which I have absolutely no memory.
31.I didn’t ask about [H Pty Ltd] at the time that work was given to [K Ltd]. I had no reason to, and I had no particular interest in such matters. In fact, the manner in which [the wife] and my father conducted their business affairs and their personal affairs was not known to me prior to these proceedings, my only awareness being that from time-to-time my father asked me to lend him and [the wife] small amounts of money because they were short of cash (refer to my affidavit paragraph 21). From those requests I had assumed that they must not be doing very well financially.
32.Even if the Court were minded to accept the email correspondence that [the wife] has tendered as evidence, none of the email correspondence relating to [Mr R Peters] is on record with either [Mr R Peters] or [the husband] and neither has recollection of the emails that [the wife] asserts were between them. Further, the emails demonstrate nothing as to any plot or scheme that was effected at any time and there is no evidence to indicate that any plot or scheme was or is in effect. This is because there was no scheme, there was no duplicity and there was no complicity.
33.I have done no wrong and should never have been involved in this matter. The fact that I am involved has cost me a great deal personally, professionally, and financially.
Those are countervailing factors. The import of those matters is far greater than can be reasonably reflected in any adjustment of the available pool of assets. In the normal course of proceedings continued pursuant to s 79(8), there would be a substantial adjustment in favour of the surviving spouse. Here there was a very substantial preliminary distribution to the wife and the husband’s estate is insolvent to the extent of over $400,000. In those circumstances I propose to make no adjustment.
Just and Equitable
Subject to changes in the balance of the controlled moneys account and in the debts associated with the FF Town unit, the net assets have a value of $132,896.41 ($217,531.86 - $84,635.45). An equal division would leave the husband’s estate and the wife with about $66,448 in net assets each.
I note the earlier reference to the wife being owed $72 from the controlled money account because of a mistake. That amount is trivial and no further adjustment will be made for that reason.
The combined pool of assets and liabilities is as follows:
Owner Description Value Joint The FF Town unit (owned by the E Superannuation Fund) Not Known Joint The balance of the controlled money account held by Peter Williams solicitor for the E Superannuation Fund (as at 30 August 2013) $216,831.86 Husband clothing, jewellery, personal effects in NSW $500 Wife CC Bank $200 Joint The debt associated with the FF Town unit (owned by the E Superannuation Fund) as at 2 July 2013 -$70,125.83 Husband Credit card debt -$6,812.32 Wife Income tax debt -$7,697.30 $132,896.41
As I understand the wife’s case, she would like to retain the FF Town unit but seeks that she be indemnified in relation to any associated debt. An order that seeks to separate the asset from the related debt is likely to be impracticable and could lead to further litigation. Although I cannot predict the net effect, in my view the unit and responsibility for the debt should remain with the husband’s estate.
The husband’s estate has or has had the benefit of, the following:
Owner Description Value Joint The FF Town unit (owned by the E Superannuation Fund) Not Known Husband clothing, jewellery, personal effects in NSW $500 Joint The debt associated with the FF Town unit (owned by the E Superannuation Fund) as at 2 July 2013 -$70,125.83 Husband Credit card debt -$6,812.32 ($-76,438.15)
If the estate is to receive one half of the identified pool of assets ($66,448) it should receive $142,886.15 from the controlled money account.
That would leave the wife with the following:
Owner
Description Value Wife CC Bank $200 Payment from the controlled money account ($216,831.86 - $142,886.15) $73,945.71 Wife Income tax debt -$7,697.30 $66,448.41
In the case of the controlled money account and the debt associated with the FF Town unit, it is probable that both will have increased from the figures relied on for the purposes of these reasons. I propose to deal with that potential by providing for the wife to receive $73,945 (rather than a percentage of the fund) and for the estate to receive the balance of the controlled money account. To the extent that the controlled money account has grown that will provide some offset against the likely increase in the FF Town unit debt.
In the circumstances, such a disposition best reflects the objects of the legislation for settlement of property.
Orders
Given the way in which the main assets are held the form of orders is important. There were no submissions about the form of orders necessary to effectively achieve the outcomes respectively sought by the wife and on behalf of the husband.
The orders proposed on behalf of the husband do not purport to address the fact that the assets in question are the assets of a company, which in turn holds them as trustee for the self-managed superannuation fund. I will make orders directing that the second respondent and the wife cause the distributions identified and will give them leave to apply in relation to the form, rather than the substance of the orders.
Conclusion under Section 79
Significant contributions were made by each of the husband and wife. The matrimonial pool of assets is dwarfed by the matters sought to be addressed in the settlement of property. With those qualifications, the orders I propose will effect a just and equitable settlement of their property.
The related applications for orders against Mr Weston, (affecting him and Ms Weston) and against Mr R Peters, will be dismissed.
Other orders
Superannuation
The wife seeks an order against the trustee of the husband’s superannuation fund in the following terms:
9.The Trustee of State Superannuation Scheme forthwith pay to the Wife [Ms Peters] the regular reversionary spouse pension of member [the husband] including arrears from the day after the date of his death of … September 2012 to her nominated bank account; alternatively, any order of the court’s initiative which reinstates the wife’s eligibility for the regular fortnightly reversionary spouse pension of member [the husband].
There is no evidence that there exists a reversionary interest to claim. There is no evidence that the trustee was served with notice of the wife’s Application. There is no indication of the possible head of jurisdiction for the wife’s claim. In aid of her claim the wife introduced into evidence a copy of a letter from the trustee to her dated 7 May 2013 which is referred to earlier in these reasons and which clearly reveals that the wife’s claim must fail.
In those circumstances the wife’s claim cannot succeed.
Injunctions
Mr R Peters seeks an order in the following terms:
That the Respondent Wife in these proceedings be restrained from forwarding or causing to be forwarded any communication whatsoever concerning these proceedings or matters in evidence in these proceedings, howsoever, making any reference to [Mr R Peters] or the Applicant husband including but not limited to any educational institution, [O] University, [O University Graduate School], [MM Organisation], any professional body associated with [profession NN] and to all such institutions within Australia or affiliated with those Australian organisations.
The husband made a similar application in 2010. That application came before the Court on 16 July 2010 and was adjourned to the final hearing.
Section 114 of the Family Law Act relevantly provides:
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
That part of written submissions made by Mr R Peters on this issue included the following:
1.[The wife] sent correspondence to multiple parties around the world on multiple occasions defaming me (refer to my Affidavit paragraphs 7, 10, 13, 14, 17 and Annexures B, C, F, G, H, I, J). [The wife] did not take due care to ensure on any of the occasions that her correspondence was directed to and received by a particular party, many of her complaints being sent to general fax numbers (refer to my affidavit paragraph 7 and Annexure C).
2.Her initial complaint about me was sent to [MM Organisation] on 4 August 2008 at a time when [the wife] knew me to be [a senior officeholder] of that Organisation (refer my affidavit paragraph 7). [The wife] sent the complaint knowing by that time that I was supporting my father financially (refer my affidavit paragraph 11).
3.It is telling that [the wife] waited until August 2008 ([the wife] agreed during cross examination that this was the date of her first complaint) to make any complaint about me to anyone. It is telling that [the wife] did not complain about me to the police or to any other authority about the fraud that she claims I perpetrated. It is telling that [the wife] complains to my professional body, and then to my employer, and then to many other parties not connected to me, but does not complain to the police or to any other such authority.
4.Many of the parties to whom [the wife] complains about me I do not know and have never met. They have no connection to me save for the fact that they are senior people in organisations to which I am accountable. It is reasonable to expect that those parties could harm my career prospects and my professional standing — indeed my very ability to earn a livelihood — were they to believe [the wife’s] baseless allegations.
5.I submit that the reason [the wife] complained to these parties, and not to me directly or to the police, is that [the wife] knew I had done nothing wrong but she wished to harm me professionally and personally once she realised that I was supporting my father financially in his pursuit of access to their son, [Y], and in attempting to access the martial assets that [the wife] took.
6.Her hope was that I would be threatened by her behavior and stop supporting my father, or that I otherwise would be neutered by virtue of my professional reputation being destroyed. Fortunately for me, she was unable to succeed in this as I had done nothing wrong. But she did succeed in having me put through a lengthy and humiliating investigation by the Professional Conduct Unit of [MM Organisation] as they are duty-bound to investigate any member against whom a complaint has been made.
7.Given that [the wife] had circulated her allegations about me to numerous parties in many countries including fellow Board members of [MM Organisation], staff of [MM Organisation], and others, it was well known inside the organisation (and perhaps outside it too), that I was being investigated.
8.While under investigation I was excluded from Board meetings, I was suspended from membership, and I was the victim of rumour and innuendo. This caused me and my family great distress (refer my Affidavit paragraph 15). The result of the investigation by [MM Organisation], which involved an independent member from the … Bar being appointed by [MM Organisation] to investigate the matter, was that [the wife’s] complaint was dismissed and [the wife] was found to be vexatious (refer my Affidavit paragraph 8 and to Annexure D). I continue to serve on the Board of [MM Organisation].
9.I submit that [the wife] sent out the information that she did, and that she attempted to join parties who had no connection to these proceedings, as a ruse and in order to try and defame me without appearing to breach s.121 of the Family Law Act, knowing that those parties, who included high profile people such as [Mr P] whom I had not met at the time, would be forced to read the information and form an adverse view of me, of my father, and of my father’s professional advisers.
10.[The wife] has on several occasions, and after being admonished by the Court for doing so, intentionally and clearly put Family Court matters into the public domain. I note that [the wife] did not successfully join any party to these proceedings, save me, and that Orders were issued that [the wife] pay costs to the various parties and that to date [the wife] has not complied with those Court Orders and has not paid costs to any party.
11.[The wife] claims on cross examination that she sent material around the world to multiple parties who had nothing to do with the case because she did not believe that she could contact me directly and she wanted these parties to put the information she sent to them in my hands. I submit that this is a ludicrous explanation.
12.[The wife] claims that I filed no address for service to her, though I did file an address for service to the Court. But none of the other parties to whom [the wife] sent information were my address for service. [The wife] served all of them via email or fax. Both my email address and my fax address are easily found on the internet and have been since at least 2004.
13.In spite of being able to contact me with some ease via email or fax, [the wife] commissioned a process server to serve me papers in a very public manner in front of an audience of senior business and political figures as I took to the stage to open a [MM Organisation] conference when I was [a senior officeholder] of [MM Organisation] (refer my affidavit paragraph 12).
14.I note that at no time have I attacked [the wife] or her reputation and that no evidence is offered by any party to suggest that I have. In fact, as [the wife] testified during cross examination, I have only fleetingly met or seen her a couple of times, the last time being on or around 1996 and, save for these Court proceedings, I have otherwise had no dealings with her at all. I have not contacted [the wife] directly at any time during these Court proceedings of many years except to serve her the same papers by email that I had filed with the Court. [The wife’s] malice towards me is entirely without foundation and can only be explained with reference to my support of my father in these proceedings.
Mr R Peters sets out the evidence on which he relies in: paragraphs 5 – 18 inclusive of his affidavit sworn 28 March 2012 and filed April 2012; paragraphs 5 – 12 inclusive of his affidavit sworn 24 January 2013 and paragraph 12 of his affidavit sworn 8 April 2013. Without setting out that evidence in full it is his evidence that:
·By a letter dated 4 August 2008 the wife made a series of allegations to the Professional Conduct Unit of MM Organisation. At that time Mr R Peters was a senior officeholder of MM Organisation. That letter was sent by facsimile to officers of MM Organisation in Singapore, Guangzhou, Macau, Shanghai, Hong Kong, New Zealand, Europe, to the CEO and to six individual board members. The letter stated that the wife was prepared to publish similar allegations to “all places where he has a profile”. An independent investigator appointed by MM Organisation subsequently found that the wife’s allegations were “unsupportable on the available evidence and constitute an unviable complaint”. At about the same time the wife forwarded her complaint to the employer of Mr R Peters, O University.
·Solicitors instructed by Mr R Peters wrote to the wife on 21 October 2008 requesting that she refrain from making such allegations in the future.
·On 21 October 2008 the wife again wrote to MM Organisation making further allegations against Mr R Peters. Again the complaints were dismissed.
·In early 2010 a process server retained on behalf of the wife served Mr R Peters with documents as he approached the podium to deliver an address in his capacity as a senior officeholder of MM Organisation at a MM Organisation conference. It is the evidence of Mr R Peters that the conference was attended by more than 100 of Australia’s business and political elite and that he was embarrassed and humiliated by the experience.
·On 30 June 2010 the wife sent an email attaching copies of documents lodged by her in these proceedings to a number of offices in Australia and elsewhere, including offices of MM Organisation in Guangzhou, Macau, Shanghai, Beijing and Hong Kong. Those same documents were also sent by the wife to O University, the Dean of O University Graduate School, the other board members of MM Organisation and to various other organisations with which Mr R Peters asserts he had no association.
·On or about 25 November 2010 the wife filed an application to join in these proceedings and to seek damages against, a number of parties including the employer of Mr R Peters as well as institutions and professional individuals associated with his professional life such as the minister of State government Department RRR: Mr P, Chancellor of O University; O University Graduate School; the Deputy Vice Chancellor and Chief Financial Officer of O University; Mr V, Director, O University Graduate School, and Mr W, Dean and Director, O University Graduate School. The wife withdrew that application and was ordered to pay the respondents’ costs.
·On or about 27 October 2011 the wife filed a further amended application in a case seeking financial orders against Mr R Peters, Company QR, Mr HH, an accountant at Company QR. That application was dismissed on 4 November 2011 and the wife was ordered to pay the costs of Company QR and of Mr HH;
·On 24 December 2012 the wife emailed Mr SSS, including with the email a string of email correspondence that she asserts was between the husband and Mr R Peters.
It is the evidence of Mr R Peters that at no time has he provided any of the email or other addresses referred to above, as his address for service of documents in connection with these proceedings. It is his contention that the only reason the wife would have to send information related to these proceedings to those addresses would be to cause him and his family, public humiliation and embarrassment.
I am satisfied that no effort was made by the wife to preserve Mr R Peters’ privacy. For example the wife sent an email to Mr R Peters to a general e-mail address for O University Graduate School. On 3 December 2012 Mr R Peters received an email from a Mr TTT, an employee of the O University Graduate School in the following terms:
Dear [Mr R Peters],
This is what was received for your records. I am sorry that this was seen internally by various people. I could not control for that I’m afraid, because it did not come to me.
The wife’s email included “does said “history” refer to your father’s admission of having murdered a [Country UUU] youth? I am uncertain as to how to sensitively reply to my son on some matters regarding his father.”
As I understand it, it is the wife’s case that she was not provided with an address for service for Mr R Peters and was refused permission to serve him care of the husband’s solicitors. Presumably on that basis or on the basis that she did not receive a response or an adequate response to correspondence sent to Mr R Peters, the wife felt justified in scattering documents all over the place and causing Mr R Peters to be served so publicly in early 2010.
The Court record reveals that on affidavits sworn by Mr R Peters he shows his address for service as the e-mail address being [Mr R Peters’ full name @ O University Graduate School]. For example that is the endorsement on the affidavits of Mr R Peters sworn 13 July 2010 and filed 15 July 2010; sworn and filed 8 April 2013 and sworn and filed 6 September 2013.
It is the wife’s evidence[28] that on 21 December 2009 she filed an application in a case seeking to join Mr R Peters to the proceedings. She believed that she was able to serve him care of the husband’s solicitors but on 29 January 2010 was told that she could not do that. The Court record shows a note by the Registrar on 29 January 2010 to the effect that the wife was obliged to serve Mr R Peters with documents involving him. The wife deposed that on that day the husband’s solicitor “was persuasive in her argument” that the wife should not be permitted to serve Mr R Peters by “his email address which I knew about.” There is no reference on the Court file to such an order being the outcome on 29 January 2010. That is not to say that it would have been an inappropriate ruling. Then, as now, Mr R Peters was resident in Country I and there are formalities in respect of service in foreign jurisdictions. The wife deposed that she contacted the authorities in Country I about the requirements for service there and that she received a reply. She does not put that reply into evidence. The wife deposed that she attempted to obtain the same advice from staff of this Court and was not assisted. She then searched on-line for an address for Mr R Peters and discovered the details of the MM Organisation conference in Australia on early 2010. She then retained a process server to effect service at the conference.
[28] Paragraph 26 and following of the affidavit of the wife filed 27 April 2012
The wife deposes that on 1 June 2010 her application to join Mr R Peters to the proceedings was consolidated with the substantive proceedings. She says she was not served with an address for service for him but later discovered that on that day he did file a Notice of Address for Service with the Court. There is no evidence that the Notice was immediately served on the wife. It is the evidence of the wife that because she had not been provided with an address for service she attempted to notify him of the application she had filed in relation to lump-sum child maintenance which was listed for hearing on 16 July 2010, at his last known address. That notification she says was done by email to the “addresses at which at an earlier date I had submitted complaints about him through the Professional Conduct Unit of [MM Organisation] and the equivalent at [O] University, being two places where he serves”. It is the wife’s evidence that on 15 July 2010 she received an email from the husband’s solicitors to which was attached the Notice of Address for Service filed by Mr R Peters.
There is a question about scope for orders in civil litigation to purport to have reach beyond the life of the proceedings themselves and beyond Australia. Here Mr R Peters seeks an indefinite order. Further, the wife did not and does not have legal representation. The complaints of Mr R Peters would be on even stronger ground if there was evidence that he had served his Notice of Address for Service on the wife as soon as it was filed, as he was obliged to do.
Nevertheless, there is obvious merit in Mr R Peters’ complaint. The wife disseminated material associated with these proceedings which included material setting out serious complaints about his conduct. If not done to deliberately harm him, then she did that with reckless disregard for his privacy and reputation. It was submitted by Mr R Peters that the idea that the wife would attempt service on him at all of the many addresses to which her professional complaints about him were made, is laughable. I agree, although the outcome was not humorous and I am sure that no humour was intended. To deal with Court documents in such a way was an abuse of process and was unacceptable. Importantly, the wife showed absolutely no remorse or contrition in relation to her conduct and the Court could have no confidence that she would be deterred from similar conduct in the future. Notwithstanding that the damage caused by her conduct was brought to her attention at an early time, rather than give an assurance that she would desist, at each point the wife sought to justify her actions.
Finally, lest it be argued that there are protections already in place, the prohibition in s 121 of the Family Law Act only addresses dissemination to the public or a section of the public. As extensive as the wife’s publication was, I doubt that provision would provide meaningful protection from the wife’s conduct to date. That said, the prohibition in s 121 is very broad, proscribing the bare identification of a party or witness.
The order sought extends to the protection of the husband. Without seeking to suggest that the dissemination of information denigrating the husband was appropriate, in my view the conduct that warrants attention is that which could be seen as harming Mr R Peters for the purposes of these proceedings. I will make an order restraining the wife from disseminating material in respect of Mr R Peters.
I will order that the wife be restrained from forwarding or causing to be forwarded any communication concerning these proceedings or copies of documents or of excerpts from documents prepared in relation to these proceedings, being documents that make any reference to Mr R Peters, to O University, O University Graduate School, or any other Australian educational institution; to MM Organisation, or any other professional body associated with profession NN in Australia or any organisation affiliated with those Australian organisations.
I certify that the preceding three hundred and sixty two (362) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan.
Associate:
Date: 25 June 2014
Key Legal Topics
Areas of Law
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Family Law
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Insolvency
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Civil Procedure
Legal Concepts
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Appeal
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Injunction
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Remedies
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Jurisdiction
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Costs
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Procedural Fairness
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