Richards and Richards

[2007] FamCA 231

FAMILY COURT OF AUSTRALIA

RICHARDS & RICHARDS [2007] FamCA 231

FAMILY LAW - APPLICATION - Filed by the husband alleging non-compliance by the wife with orders made in judgment – Application dismissed.

Family Law Act 1975

APPLICANT: Mr Richards

RESPONDENT: Mrs Richards

FILE NUMBER: ADF 4258 of 1997

DATE DELIVERED: 22 February 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 22 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

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

Orders

1. That the Form 2 Application filed by the husband on 26 October 2006 be dismissed and removed from the active pending cases list.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4258 of 1997

Mr Richards

Applicant

And

Mrs Richards

Respondent

EX TEMPORE REASONS

1. I have before me a Form 2 Application filed by the husband on 26 October 2006, wherein the husband sought:

   “That pursuant to paragraph 7 of the order made 6 February 2006, before the Honourable Strickland J, the wife do deliver to the husband the husband's tools and items of personalty listed in Annexure A herein.”

   Annexure A is a four-page document containing 151 items. 

2. There is a supporting affidavit to that application which was filed on the same date in which the husband sets out what he says has occurred in relation to this issue since my order of 6 February 2006.

3. I do not propose to recant the history that the husband has set out in that affidavit.  The long and the short of it is the husband alleges that the wife has not complied with that order in that she did not make available for collection all of the husband's tools and items of personalty by an agent of the husband, nor did she deliver to an agent of the husband all of his tools and items of personalty.

4. The husband has annexed photographs of the items of personalty that he says were delivered or made available to his agent, namely his father, who actually attended at the property and collected certain items of personalty.  There was initially some difficulty in arranging that to occur but ultimately it did occur on 27 August 2006.

5. There is an annexure to the husband's affidavit which is some sort of statement from his father, but I disregard that entirely.  If the husband was seeking to rely on any evidence of his father he should have filed an affidavit from him.

6. The wife filed a Form 2A Response, to which she annexed what purports to be an affidavit.  It is inappropriate to annexe that to a response, however because it is a sworn response I am able to have regard to it.  What the wife says is that she has complied with the order and seeks that the husband's application be dismissed.  She responds in respect of each paragraph of the husband’s affidavit, and again I have read all of that.  The wife says that she ultimately made arrangements with the husband’s father to attend and he took what he wanted to.

7. A separate affidavit was filed by the wife, but I do not understand why she did that.  In any event much of it is completely irrelevant to these proceedings and relates to historical matters which have no bearing whatsoever on this matter.  She did though refer again in more detail to what she says has happened since the order was made, and also what she says happened on the occasion when the husband’s father attended at her home.  I should say that by the time this occurred the wife was no longer living at the home; she had rented it out and there were tenants living there.  She says in her affidavit that she has not removed anything of the husband's from that property and that there were police officers who attended at that time, arranged by the husband’s father.

8. The wife also annexes to that affidavit a letter dated 29 August 2006 from Westside Community Lawyers, who at that time were acting for the husband in relation to these matters.  What that letter tells me is that the husband was complaining that all the items were not returned to him, and annexed to that letter was another list of items the husband says he is entitled to.  This list comprises 150 items with three items which are not numbered, and providing very specific detail of the items that the husband says should have been at the house and that he is entitled to pursuant to the order.

9. The husband filed a further affidavit on 25 January 2007 where he in turn responded to the wife's subsequent affidavit, and he says in this affidavit that if the items can't now be returned to him then he wants compensation for them, and he annexes a list of the items that he says are missing, together with what he describes as a written quote from Mr W as to the value of those items.  Again, there is a very detailed list of 150 items, against which there is a figure allegedly representing the second-hand value of these goods.  The husband proposed that the wife pay him an amount between $5,000.00 and $6,800.00 compensation for the replacement of the items.

10. This matter arose out of a lengthy trial that I heard in September 2005 and specifically from 12 to 19 September, primarily on the issue of property settlement.  I delivered reasons for judgment on 6 February 2006 when I made an extensive order including the order that is the subject of these proceedings.  In relation to the issue of the husband's tools and other items of personalty, there are references to that in my judgment.  For example, the order that the wife sought before me for the purposes of those proceedings included an order that the husband retain any items of personal property held in his name.  The husband sought orders that the furniture, goods and chattels in the former matrimonial home be declared the joint property of the parties and either divided equally between the parties or sold and the net proceeds equally divided.  Additionally, he sought that the other personal property of the parties be declared the joint property of the husband and the wife and either equally divided or sold. 

11. I made findings as to credit, in my reasons for judgment, and particularly in relation to the husband.  I refer to paragraph 60, and paragraph 94 more specifically, where I said:

    "The husband was a different proposition entirely.  Even allowing for the fact that he was not legally represented at the hearing, there is very little of a positive nature that can be said about his evidence or his presentation.  He was evasive, he was prepared to say whatever he felt would advance his case regardless of the truth, and he was prepared to lie.  Whenever he did not want to answer a question he would almost invariably say that he did not know, that he did not recall or that he was not sure.  However, in my assessment at these times he did know, he did recall, and he was sure.”

12. In paragraph 95 I said this:

    “To repeat, in most instances where the husband’s evidence conflicted with that of the wife I prefer the wife’s evidence, and it is the same where his evidence conflicted with that of the second respondent.”

13. Under the heading of “The issues in dispute” I identified in paragraph 72, that there was an issue about the value of the husband's tools and personalty, and I said this:

    “There was no evidence presented of the value of the husband’s tools and personalty, and in the end result the wife agreed that they should be excluded from the asset pool.”

14. In my findings in relation to the assets, liabilities and financial resources of the parties I included in the schedule that I set out in my judgment in paragraph 130 the husband's tools with a "not known" value for the reason that no party presented a valuation to me.  I also included in the schedule of assets as at the date of the hearing an item, "The husband's tools and personalty - not known."  Of course ultimately, given the agreement of the parties that I have just referred to, I did not include because I could not include, any value for those tools.  However, it was quite apparent that the husband was entitled to his tools and I indicated, in considering what was just and equitable in terms of the order that I would make, this comment in paragraph 199:

    “The husband will have his shares and he will have a significant amount of cash from the proceeds of sale of the [K] property.  Separately he should have his tools and personalty that are still in the possession of the wife and I will make an appropriate order about that in due course.”

15. The position was that at separation the wife and the children immediately left the home.  They then returned a couple of weeks later after the husband had left.  The husband's items of personalty though still remained in that home.  The wife in her evidence alleged that the husband had been back to the home and removed items but in a general way the majority of the husband's possessions were still at the matrimonial home and specifically stored in a shed on the property.

16. There was an outline of case document filed by the wife for the purpose of that hearing but the husband did not file such a document.  In the assets that the wife wanted to include in her schedule of assets there was an item, "Husband's tools and personalty," with a figure of $6,000.00 opposite it.  Of course, given my earlier comments there was no valuation provided by either party about that and no request for one was made by either party in the lead-up to the proceedings. 

17. Significantly, in those proceedings, at no stage did the husband identify the items that he said were at the home.  Yet now the husband finds himself able to provide lists of approximately 150 items which are very detailed.  Again, I simply do not accept the truth of that evidence presented to me by the husband.

18. I might say that it was only the wife who went to the trouble of attempting to put a value on the items, and particularly the tools of the husband.  Of course, her estimate could not be accepted and ultimately, to repeat, because there was no value, I did not include any figure for them in the schedule of the assets which I found and then divided between the parties.

19. In my view this application by the husband is a specious application.  If the husband is now able to identify in the minutest detail the items that he says were in the home, he should have been able to do that for the purposes of the trial.  However, he did not and to repeat, I do not accept his evidence at all in relation to this application.

20. The position is that I made an order about the return of the items.  The wife says she has returned them all, and I accept that.

I certify that the preceding
20 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 22^nd day of February 2007.

……………………………………….
Associate