SORRENSEN & SORRENSEN

[2016] FamCA 1132

FAMILY COURT OF AUSTRALIA

SORRENSEN & SORRENSEN [2016] FamCA 1132

FAMILY LAW – PROPERTY – Enforcement – Subsequent to final orders for property settlement – Where the husband failed to comply and the wife sought enforcement orders – Where the hearing of the application for enforcement orders was adjourned to allow the husband time to comply with the orders – Where the husband still failed to comply

FAMILY LAW – COSTS – Costs order – Where the husband is ordered to pay the wife’s costs in an amount to be fixed

Family Law Act 1975 (Cth)

APPLICANT: Ms Sorrensen

RESPONDENT: Mr Sorrensen

FILE NUMBER: BRC 8601 of 2012

DATE DELIVERED: 14 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Raeburn

SOLICITOR FOR THE APPLICANT: MacDonnells Lawyers

THE RESPONDENT: In Person

Orders

In relation to Order 29 of the Orders made in these proceedings on 8 May 2015

1. In order to ensure timely compliance with Orders 29 to 35 (inclusive) of the Orders made in these proceedings on 8 May 2015 (“Orders 29 to 35”) the Wife, Ms Sorrensen, is hereby appointed to act as trustee of the Husband, both in his personal capacity and, more particularly, in his capacity as Director of Sorrensen Super Pty Ltd, the Trustee of the Sorrensen Superannuation Fund, and without limiting the generality of that appointment:

   (a)The Wife is hereby entitled to execute any document that needs to be executed by the Husband on his behalf in order to give effect to Orders 29 to 35; and

   (b)The Wife is hereby entitled to instruct accountants on behalf of both the Husband and the Wife in their role as directors of Sorrensen Super Pty Ltd to undertake the calculations necessary to give effect to Orders 29 to 35; and

   (c)The Wife is entitled to instruct accountants on behalf of both the Husband and the Wife in their role as directors of Sorrensen Super Pty Ltd to prepare all documents and records necessary to give effect to the superannuation split provided for in Orders 29 to 35; and

   (d)The Wife is entitled to conduct the meeting referred to in Order 33 on behalf of both the Husband and the Wife in their role as directors of Sorrensen Super Pty Ltd and she is entitled to act as the trustee of the Husband for the purposes of any vote that it is necessary to be conducted in order to give effect to that Order.

In relation to Order 37 of the Orders made in these proceedings on 8 May 2015

1. In within seven (7) days of the date of these Orders, the Husband shall provide to the Wife all of the photos and photo albums that he was ordered to provide in paragraph 37 of Orders made 8 May 2015. 

2. If the Husband fails to comply with paragraph 2 of these Orders, then in order to give effect to Order 37 of the Orders made 8 May 2015, a warrant shall issue without further notice pursuant to Rule 20.55 of the Family Law Rules, on the affidavit of the wife’s solicitor deposing to the husband’s failure to comply, authorising an enforcement officer to attend at any address that is occupied by the Husband and to enter those premises and to seize and detain all photos and photo albums required to be delivered by the husband to the wife pursuant to Order 37 of the Orders made 8 May 2015.

3. The Husband shall be liable for any and all costs incurred by the wife that are associated with the issue and execution of any warrant that issues pursuant to paragraph 3 hereof, including any costs incurred by the engagement of an enforcement officer to undertake the execution of such warrant.

IT IS DIRECTED

1. That the wife’s solicitors shall file and serve by close of business on Wednesday, 21 December 2016 a schedule of the wife’s legal costs and outlays of and incidental to this Application in a Case in accordance with the scale on a party and party basis.

2. That any written response that the husband wishes to file shall be filed and served on or before Friday, 6 January 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sorrensen & Sorrensen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8601 of 2012

Ms Sorrensen

Applicant

And

Mr Sorrensen

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me today is an application brought by the applicant wife, Ms Sorrensen, in and as a consequence of property adjustment proceedings finalised between her and her former husband, Mr Sorrensen, who is the respondent, at a trial and by way of a judgment delivered by me on 8 May 2015, following on and consequential upon that trial that took place in April 2015. 

2. I delivered a judgment including orders that were set out over several pages that finalised property adjustment between this couple who had been married for many years and whose marriage sadly had failed some years before the matter came to trial before me.  Indeed, the file number of the matter reflects that the proceedings were commenced in 2012 by the wife. 

3. I have substantial recollection of this matter and particularly the difficulties that were involved in getting the matter to a point where it was ready to be listed for trial and to be heard.  Without reciting or going into the difficulties, I am quite satisfied to be able to say that much of the responsibility for the delays in getting this matter to trial lay at the feet of the husband who for reasons, various reasons that I will not go into today, was not ready for the matter to go to trial and in my view did not really want the matter to go to trial and ultimately effectively had to be forced to take the matter to trial against his own desires.

4. Sadly and unfortunately, a lot of the reasons why the husband was delaying and having difficulty in getting the matter ready to go to trial, related to matters pertaining to his own emotional wellbeing and health.  He himself concedes that he suffered from severe depression to such a point that caused him to be admitted to hospital as far back as 2007.  At the trial though, he was represented by very experienced junior counsel in the form of Mr Tedd Jordan. The wife was represented by Mr Kirk of Queen’s Counsel and I determined the matter, as I have said, and made orders in May, 2015.

5. Those orders dealt with many different aspects of property.  Of relevance for today’s application they dealt with two matters.  Firstly, my orders provided for a superannuation split. The parties had a self-managed superannuation fund.  The husband himself is a former accountant.  They had rather large member benefits in that self-managed superannuation fund of which they were, as I understand, the only members.

6. By my orders made 8 May 2015, I made several orders relating to a superannuation split. In particular, I ordered that the wife be entitled to be paid a base amount of $1,259,093.40 out of the respondent husband’s interest in the Sorrensen Superfund and for the respondent husband and the applicant wife in their capacity as directors of the trustee of the Sorrensen Superfund, namely Sorrensen Super Pty Ltd, to do all acts and things and sign all such documents as may be necessary to calculate effectively the wife’s entitlement and to cause the fund to be in a position where the wife could make a request to transfer her transferrable benefits out of the Sorrensen Superannuation Fund to another regulated superannuation fund of her own choosing. Her benefits being, of course, her own member benefit entitlement and the amount that was to be split to her pursuant to the orders, plus, of course, any accretions that had accumulated on that amount since the operative date upon which the transfer was to take effect pursuant to the orders referable to a provision in the Superannuation Industry Supervision Regulations.

7. Upon the transfer out of the fund into another regulated fund, the order provided for the wife to do all things necessary to resign as a director of Sorrensen Super Pty Ltd and effectively to remove herself from any further involvement in, membership of, director of, their self-managed superannuation fund, leaving it all for the husband to be responsible for in the future. 

8. Further, in the orders I made on that date, I made a very simple order, at paragraph 37 in respect of some personal items.  I ordered that within seven days of the husband’s receipt of his items of personal property from the F Town property of the parties, the respondent husband was to return to the applicant wife, all photos, photo albums and the box of cards relating to the passing of the parties’ son, X.

9. It is now the 14 December 2016, some 18 months after I made these orders.  The wife is before me today as an applicant telling me that my orders in respect of the superannuation fund and my orders in respect of the delivery to her of photos and photo albums have not been complied with yet by the husband.  In fact, she filed the application that is currently before me for enforcement of my orders on 27 June 2016. The matter came before me on 8 September 2016 at which time I was assured by the husband that he would do everything that was required to discharge his obligations pursuant to those orders and as a consequence I adjourned the matter to today for further mention just to be sure that all of those things that he said he would do have been done.  Indeed, there were a number of other things that I remember the wife was seeking to have the husband do by order, his not having complied with a number of other aspects of my final orders. 

10. The wife is back before me today again represented by her solicitors and counsel.  She tells me that the husband has not complied with the order in respect of the photographs and that he has not complied with the orders in respect of the superannuation.  In response the husband who is again unrepresented today, says to me effectively, in respect of the photographs, that he has not been able to locate them and has asked for an additional seven days within which to find them and deliver them to the wife.  That I find an interesting proposition given that I have read an email that he sent since September this year to the solicitors for the wife in which he asserted that he had no money and could not copy the photographs and would comply with my orders if he had the money to copy the photographs.  There was nothing in that email about not being able to find them. 

11. Additionally, he tells me that the delay in respect of compliance with the superannuation provisions of my orders are not his responsibility, yet at the same time he tells me that he had many concerns and issues with the 2015 and 2016 financial statements of the superannuation fund that he says somehow prejudice him.  Nevertheless, he has signed them and there are no obstacles now in the path of finalising the orders from May last year. 

12. With all due respect to the husband, I do not accept his position in respect of the superannuation fund and am quite satisfied, not only from the evidence that I have read and the submission I have heard here today, but also my own knowledge of the matter in the past, that there is only likely to be further delay, further difficulties and further roadblocks put in the path of the wife in obtaining her just and equitable entitlements from my final determination if I leave things as the husband wants me to, namely, with there being no change to the current structures surrounding the self-managed superfund.

13. I intend to make orders that provide for the wife to be able to take over effectively, sole control of the superannuation fund limited to the purpose of finalising and complying with the orders that I made in May last year entitling her to a superannuation split and to be able to take that superannuation entitlement with her to another fund.  Furthermore, I am satisfied that the orders that the wife seeks in respect of the delivery to her of the photos and photo albums are appropriate orders to make save that she asks for an order that the husband deliver within 24 hours.  The husband himself has asked for seven days and I am prepared to give him that, before the more onerous provisions of an enforcement officer attending a place where he lives pursuant to a warrant take effect, with the husband being responsible for all and any costs associated  therewith are imposed upon him by order.

Costs

1. In this application that I have decided effectively in favour of the applicant wife, she also seeks costs. She seeks an order that the husband pay her costs of and incidental to this Application in a Case on an indemnity basis. 

2. Section 117(1) of the Family Law Act sets out the general principle that in proceedings under this Act each party shall bear his or her own costs.  However, and as I have said before in costs determinations that I have made, that reflects my understanding that Parliament, when passing this particular part of the Family Law Act, was quite aware of the particularly special nature of disputes between couples that are litigated in this Court and the emotional nature of such proceedings that distinguish them from the usual sorts of commercial and civil proceedings that take place in the commercial courts of the States in which the general rule is that costs follow the event. 

3. However, Parliament deemed it appropriate to include further provision in s 117 in respect of costs that where the Court is of the opinion that there are circumstances in justify it in doing so, the court may make an order as to costs as the Court considers just.  I am, in the circumstances of this case, readily satisfied that the circumstances justify the Court in making a costs order. 

4. The wife has sought an order that the husband pay her indemnity costs.  I do not know that the husband fully understands what that means, but that means an order that she would be paid every single dollar and cent that she has spent on her lawyers in bringing this Application in a Case to court.  She might think in her mind, why would that not be reasonable.  Generally though, when costs are ordered the usual form of costs is on a party and party basis in accordance with the scale of costs that has been determined as appropriate for these sorts of matters. 

5. I am not persuaded, as I have said in the course of argument to counsel for the wife, that this is a case that justifies an indemnity costs order.  As I have said, I am quite satisfied from my observations and interaction with Mr Sorrensen over the last couple of years that he is not motivated in his actions or inactions by malice towards the wife but that he has deep seated emotional and mental health issues that he has not yet been able to totally come to terms with that are explaining much of his behaviour. 

6. In the circumstances I do not intend making indemnity costs orders.  So, what alternative orders are just?  I could readily make an order that the husband pay the wife’s costs of and incidental to these proceedings to be agreed or assessed.  That though, as I have said, creates in my mind even more problems. The husband will never agree to anything in respect of the wife’s costs, I would expect.  He has demonstrated that by his conduct that brings him here today and causes me to determine that he should pay her costs.  The assessment process again involves the husband in having to say whether he agrees with the costs as set out or not and involves the wife in having to take the matter through her lawyers to a registrar and incur further costs. 

7. I intend to make a costs order as I consider that the wife was only forced to bring this application for enforcement of the final orders because of the husband’s failure to comply with the orders in the first instance. 

8. I intend to actually fix an amount that the husband is to pay but cannot do that at this stage because I have no idea what the wife’s costs have been and what a fair portion of that would be to order the husband to pay.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 December 2016.

Associate: 

Date:  17 January 2017