St Claire and St Claire and Anor

[2011] FamCA 339

FAMILY COURT OF AUSTRALIA

ST CLAIRE & ST CLAIRE AND ANOR [2011] FamCA 339

FAMILY LAW – PROPERTY – Partial distribution of property – Copying of documents

Family Law Act 1975 (Cth)

Strahan [2009] FamCAFC 166

APPLICANT: Ms St Claire

RESPONDENT: Mr St Claire

INTERVENOR: E Pty Ltd

FILE NUMBER: MLC 9777 of 2010

DATE DELIVERED: 13 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Maria Barbayannis

COUNSEL FOR THE RESPONDENT: Mr Robinson

SOLICITOR FOR THE RESPONDENT: Lewis Allen Janover

Orders

1. That the application of the husband filed 22 December 2010 for interim orders in terms of paragraph 8 is dismissed.

2. That all outstanding applications for final orders are adjourned to a date to be fixed to await determination by a judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym St Claire & St Claire and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9777  of 2010

Ms St Claire

Applicant

And

Mr St Claire

Respondent

REASONS FOR JUDGMENT

1. A dispute rages between Mr St Claire (“the husband”) and Ms St Claire (“the wife”) about:

   (a)who has possession of a variety of documents and chattels;

   (b)who should retain the original financial and taxation documents that are in the possession of the wife and if they are to be copied, who is to bear that expense; and

   (c)whether the wife has various chattels that the husband wishes immediately returned and if she has them, should they be so returned.

2. The specific application of the husband came on before Austin J on 4 April 2011.  His Honour ordered that the following paragraph in the husband’s then outstanding application be adjourned to the Judicial Duty List before me on 3 May 2011.  That paragraph read:

   That before 4.00pm on 11 February 2011 the wife deliver up to the office of the husband’s solicitor Lewis Allen Janover, Solicitor, Level 4, 517 Flinders Lane, Melbourne, all of the husband’s personal property as detailed in the attached Schedule of the Husband’s Personal Property.

3. The schedule just referred to included specific jewellery, photographs, property titles, an Australian passport, personal papers, financial documents, a business machine and business stock, a computer keyboard and two amplifiers.

4. In these proceedings, each party filed further affidavits subsequent to the hearing before Austin J.  Each party was represented by counsel as they had been before Austin J.  The husband was represented by Mr Robinson of counsel and the wife was represented by Mr Davis of counsel.

5. Having read the affidavit material, I indicated that I saw difficulty in determining the matter without the parties being cross-examined.  Although there was not unanimous agreement about that issue, each counsel took the opportunity to call their client and cross-examine the other party.  That cross-examination was unashamedly truncated and limited but I am satisfied that I am now able to make determinations on the evidence.  As the evidence concluded at 5.25pm on 3 May 2011, the case was adjourned overnight to 9.00am the following day to enable each counsel to make submissions.  Each did so.

6. The onus of proof on this case lies with the husband because he seeks the orders.  The standard of proof is the balance of probabilities.  That is the standard that I have applied.

7. The husband’s evidence as to the documents was set out in his affidavit filed 27 April 2011 but also an earlier affidavit of 22 December 2010.  In essence, the husband said that when he left the Suburb B home on 9 September 2010, he left the items which are those referred to above.  He said he conducted a business from the home and kept all his personal and business documentations and records there.  He indicated that his usual form of record keeping was to keep the last seven years of complete financial documents together with a current year.  He described the area of the house in which he conducted the business and where the various documents were retained.  He said that when he left there were six arch lever folders containing financial information and documentation as well as separate manila folders marked up for relevant subjects relating to business and personal records.  He used shelving under a bar unit in a lounge room to store records not immediately current.  In addition, he said that he had five archive boxes of documents which were retained in an extension to a bedroom of one of the children.  These boxes had files of his former family law proceedings.

8. In addition to the documents, the husband said that the wife had not delivered up to him various chattels.  He said that he received one gold bracelet but another was not returned.  He pointed out that the bracelet that he was seeking was kept in a safe.  He also wanted a ring and a watch.  He said that in the safe there was also an ear stud that had not been returned but he noted the wife’s comment that the title documents to a property were held pursuant to a court order made on 4 February 2011.  He said in respect of his Australian passport, it was in the safe and had also not been returned to him.  He also described an “[overseas identification document]” which was in the safe and not returned to him.  He then set out the various records again and described what documents he had received from the wife asserting that what she had returned was not all of his personal and business records.  He thought that they were about one-tenth of the quantity of documents and records that had not been delivered to him and which he asserted were still in the home.

9. In addition to the documents and the jewellery, he also sought a machine that was in the lounge room which was part of a former business operation and other stock items which had not been sold.

10. The husband asserted that there was a computer with keyboard and screen located in the study upon which there was data that he needed.  He said that in early 2010 he bought his son D a laptop as well as one for the wife.  He said the computer in the study was only used for his work purposes. 

11. The husband’s evidence was that there were also two amplifiers which he wanted returned.

12. In his affidavit, he made reference to the service books of his motor car but they had been delivered to the court by the wife who said that she had only just found them.  There were other items such as two speakers in their original boxes and a roll of Axminster carpet wrapped in black plastic rolls.

13. When cross-examined, the husband relevantly agreed:

    ·He was removed from the family home by police;

    ·The police went with the husband to the home (as a consequence of an intervention order) and he collected items under their supervision;

    ·The roll of carpet mentioned above was stored at the house of his parents-in-law and it was clear that he was able to go and get it if he wanted it;

    ·There were damaged audio speakers covered by an insurance policy but he was unsure about the model and it appeared that there was more than one set including one that was traded in on the amplifiers referred to above; and

    ·In respect of the amplifiers, he wanted them back to connect them up to a $29 DVD player.

14. In relation to his financial documents, the husband said he wanted them for accounting purposes to complete returns but in an emphatic statement, he said the wife was not a director of the company involved and as such, had no right to retain the property any way.

15. When re-examined, the husband said that the jewellery was in a safe and that when he went in the presence of the police to open it, he could not do so because the wife had changed the combination lock. 

16. That is the evidence upon which the husband put his case.

17. It is important to note that there are still outstanding proceedings in this case.  It is also important to note that this dispute rages whilst outstanding orders and obligations relating to financial support of the children including private school fees remain.  It is clear that the husband is unemployed largely because of treatment for an illness.  There is certainly no basis for me to draw inferences against the husband but the position he adopted in relation to financial issues, including those to which I shall refer below was odd.  He took the view that he was paying what the government was requiring him to pay in terms of child support and as such there was no further obligation upon him.  He pointed out that the wife had made arrangements about the schooling expenses and it was not his responsibility because he had not made the choice of school.  All of those approaches of a minimalist responsibility do not do the husband any credit because the children cannot be put in a position where their future is in jeopardy whilst their parents and in particular their father, squabble over such things as amplifiers and modest items of jewellery.

18. Although the husband was vigorously cross-examined about his financial position, the evidence does not enable me to find him other than unemployed and with limited assets.  Mr Davis for the wife cross-examined about those issues asserting that the husband did not bring the application other than to harass the wife.  I do not find that to be the case although as I have pointed out, his focus and concentration are not clear.

19. The wife’s evidence was contained in an affidavit filed on 20 April 2011.  She said that in respect of the unreturned gold bracelet, she had never seen the item.  She said the items may have been in the safe but anything that was there was returned to the husband and she photographed the contents of it.  She said the same applied to the watch and diamond ring.  When cross-examined about all of this jewellery, she said it was in a closed box and hence, the police who attended and supervised the husband’s collection of items, would not have been able to verify what she was handing over.  As I have pointed out, she said that she had photographed all of the things that she had returned.  The photographs were not produced and the wife was criticised by counsel for the husband for not bringing them along.  I tend to take a less critical view having regard to the fact that there was no evidence that she was asked to do so notwithstanding the husband was aware of the existence of the photographs from the time that the affidavit was filed.  In addition, this is an interlocutory application and no doubt that issue will be revisited. 

20. In relation to the argument about the ear stud, the wife said that she had not seen it since her son was born and the husband did not otherwise allege what might have happened to it other than it had been in the safe. 

21. In respect of the Australian passport, the wife said that she returned all passports to the husband but as to the overseas identification document, the best she could say was that she had returned all overseas papers to the husband.  She said in respect of items that were specifically sought by the husband, she had returned everything she had and had not found anything else despite diligent searches.

22. In relation to the business papers, the wife said that the documents were considerable and were copied and the copies provided to the husband’s lawyers.  These documents included cheque butts and cheque books and various bank statements had been photocopied.  Counsel for the husband asserted there were numerous documents missing and that was consistent with the husband’s evidence that he only received about one-tenth of the documents from the home.  The wife’s explanation was however, plausible.  Because of the size of the task, the wife arranged for the documents to be copied professionally.  The wife proffered the suggestion that some may have been inadvertently retained by the copier.  She had had the copier copy bank cheque butts because of her own incapacity to deal with that sort of copying process.  All of this had a ring of reality about it and I found the wife persuasive.  The major dispute however appeared to be about the wife handing over the original documents that she conceded she held.  She offered to return them on the basis that they were copied again but at the husband’s expense because she had already undertaken that exercise once.  Whilst the husband maintained that they were his documents, nothing turns on that because of the disclosure obligations of the Court’s rules.  To the extent that the husband maintained an inability to finance the wife’s copying, I reject that.  Whilst copying has become a significant tool in litigation, there is no substitute for a personal inspection.  In addition, in an unusual piece of evidence, the husband confirmed he was facing criminal charges where he hoped and anticipated, to be represented by Queen’s Counsel.  He said he had not paid nor been billed for, that privilege.  When asked how he would pay, he remarked “Maybe I won’t”.  I am not sure he was being flippant.  He was also cross-examined about his legal expenses for his family law proceedings and conceded he had spent about $50,000 all of which was either provided by his brother in England, $30,000 on “Visa” and $10,000 “from the USA”.  Whilst clearly that indicates that the husband expended money he did not have, photocopying expenses in this case should not be seen as an horrendous or unwarranted expense.  Whilst there might also be an argument for a sharing of those expenses, I am satisfied that the wife did copy the documents once and a further imposition is unwarranted in circumstances where she is living in straightened circumstances.

23. In relation to the machine and stock, the wife gave an explanation that she had been informed by the purchaser that the machine was offered as part of the stock of the business and that the items that the husband claimed were also sold as part of the business subsequent to separation.  That evidence is clearly inadmissible on the basis that the deponent of the statement is not named.  Counsel for the husband inquired why that person was not nominated and the wife said it was a young woman who did not want to be named.  I propose therefore to ignore the evidence in the wife’s affidavit in respect of those matters but in any event, having elicited those answers from the wife, it is clear that the evidence does not advance the husband’s argument that the items should be returned to him as being in the wife’s possession.

24. Having heard the targeted cross-examination of the wife, I have no reason to doubt her truthfulness.  I accept her evidence.

25. An important difference between the husband and the wife came from the husband’s evidence that when he went to the home with the police, he could not open the safe because the wife had the code.  He said she had changed it.  To the extent that he wanted me to infer that the wife had the same access to the safe as he did and had thereby changed the locks, I reject that.  On this point, the wife was disarmingly frank.  She said she obtained assistance from a domestic violence support organisation which, presumably as a result of her request, changed all of her household locks and the safe was included.  It was the evidence of the wife that she was otherwise unable to have access to the safe.  She explained what she found in the safe and what she did with it.  I have no reason to doubt what she said was true. 

26. The husband’s application therefore is in two parts.  First, he wanted a partial distribution of property albeit he viewed the items as his alone even of little or no value.  Secondly, he wanted the copying issue resolved and the return of the original documentation. 

27. In respect of the first issue, the power to make a partial distribution of property lies in the provisions of s 79 of the Family Law Act 1975 (Cth) (“the Act”) (see Strahan [2009] FamCAFC 166). In this case there is not sufficient (if any) evidence, to justify me making an order under s 79 of the Act. There does not seem to be any urgency about the matter nor is there any basis for me to suggest that the wife is likely to dispose of any assets she may have even if I am wrong about the findings I have made that they are no longer in her possession. The items that the husband is seeking are peculiarly of interest to him and the wife indicated that she would return items if she had them. For example, she returned the motor vehicle service books. When she was tested about why she had not found them earlier or returned them earlier, she said she found them down beside the fax machine. In all therefore, there is no basis for me to exercise any power to make a property division.

28. In respect of the second issue, the offer was apparently made by the wife to return the original documentation to the husband if he paid for the copying. 

29. Rule 14.01 provides as follows:

    (1)      The court may make an order for the inspection, detention, possession, valuation, insurance or preservation of property if:

    (a)the order relates to the property of a party, or a question may arise about the property in a case; and

    (b)the order is necessary to allow the proper determination of a case.

    …

    (4)      If the court makes an order under this rule, it may also order a party to pay the costs of a person who is not a party to the case and who must comply with the order.

30. In addition to Chapter 14 of the Rules, to the extent that the copying cost relates to the compliance obligations relating to disclosure, Rule 13.23 may be said to apply.  It provides:

    If the cost of complying with the duty of disclosure would be oppressive to a party, the court may order another party to:

    (a)pay the costs;

    (b)contribute to the costs; or

    (c)give security for costs.

31. It is to the powers above that I turn in deciding whether the type of order anticipated by the husband should be made.  In this case having regard to all of the evidence, I find the husband could not justify demanding the wife hand over the originals without him first paying for the copying expenses for the reasons I have already outlined.

32. On the basis of those reasons, the application of the husband must fail.

I certify that the preceding Thirty Two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 May 2011.

Associate: 

Date:  13 May 2011