SWINNERTON & PETERS

[2011] FamCA 314

FAMILY COURT OF AUSTRALIA

SWINNERTON & PETERS [2011] FamCA 314

FAMILY LAW – PROPERTY

APPLICANT: Ms Swinnerton

RESPONDENT: Mr Peters

FILE NUMBER: BRC 10664 of 2007

DATE DELIVERED: 23 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 23 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Selfridge

SOLICITOR FOR THE APPLICANT: Burns Lawyers of Springwood

FOR THE RESPONDENT: The Respondent appeared on his own behalf

Orders

To be delivered

IT IS NOTED that publication of this judgment under the pseudonym Swinnerton & Peters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10664 of 2007

Ms Swinnerton

Applicant

And

Mr Peters

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of Ms Swinnerton for property settlement against the respondent former husband, Mr Peters.  The wife was born in 1953, the husband in 1947.  They married in 1974, and from such relationship, two children were born:  Mr B, in 1977; and Ms C, in 1984.

2. The parties came into the marriage with little or no assets, and thereafter, it appears to me that they worked both very hard in endeavouring to amass the properties which they now have or either or both of them have.  For instance, as appears from the chronology of facts and the case outline of the applicant wife filed 2 November, the husband initially worked at D Pty Ltd.  They borrowed some money to start a business, and the business was sold in 1976 with no profit.

3. They moved to North Queensland to work a farm with his parents.  The children were born on the farm.  Profits were shared, and they bought four units.  They bought a business at E Town; no profit was made on that when it was sold.  They sold the units and the business, then it was back to North Queensland where they did small crop farming and bought an orchard.  The orchard was sold; they bought a house at F Town and another business.

4. The two properties which were in the name of the respondent father’s parents at G Town were, I think, gifted by the paternal grandparents to the parties jointly, and notwithstanding, I think that the title has remained in the name of the paternal grandparents until about 2007, if my memory serves me correctly.

5. It was transferred subsequent to the separation in 2002 and the properties which I have referred to as being in the name of the paternal grandparents was transferred to the respondent.  These properties were at G Town.  There are valuations which, unfortunately, would appear to be out of date since the valuations were made last year, and I understand from Selfridge of counsel, who appears on behalf of the applicant, they were subject to Yasi and have been affected.  I understand, once again - I don’t think there’s any evidence to this effect - that a mortgagee is in possession of those - at least one of the properties and is endeavouring to sell it.

6. They moved to Brisbane again and set up business offices and bought a property at H Town, which is the property in which the applicant wife resides and has resided since about 1993.  The property was bought for $170,000, and a mortgage in the sum of 150,000 was sought and received from Westpac.  The businesses were got rid of in one way or the other;  I understand one of the businesses was walked away from.  The applicant worked in several companies as an executive manager from 1994 on, and in 1999, the husband was injured while working for I Pty Ltd at J Town.  This was as a result of a motorbike accident, and he subsequently received something like $95,000 by way of personal injuries claim, and that was in 2005.

7. They separated on or about 2 December 2002.  The H Town property was transferred to the wife - more of that anon - as a result of verbal communications with the respondent.  It appears that, as I said, the husband’s personal injury claim was settled.  He was paid out an amount of $95,677, which I see was subsequent to separation.  I understand he used exclusively for his own purposes.  That, of course, does not for one moment suggest - and notwithstanding he was the one who was injured - that the wife did not have a claim on that - perhaps not of great moment, but she still had a claim.  She assisted the respondent in his convalescence.

8. Up until 1999 to 2003, the wife and daughter cared for the husband.  I don’t think there’s any particulars of what was necessary for them to do during such time, however, if that evidence is there, quite clearly that enforces and supports her claim for something from the personal injuries damages.  In September 2007, the husband receives 1 K Street, G Town from his parents, and in October 2007 receives 2 K Street (see above).

9. The divorce, I think, as I’ve said, took place on or about 21 November 2007, and thereafter, the parties have had little relationship with each other.  The wife is now working and has been working for a considerable time.  According to a doctor’s evidence, she is not in great health, and this is a matter which I would have to take into consideration pursuant to the provisions of section 75(2) of the Act.

10. The respondent remained in the F Town area and has been involved, as I understand, in business up there;  in particular he is involved in a company known as L Pty Ltd.

11. And according to the evidence before me, circumscribed, as it is, by the lack of any compliance by the husband with any of the orders of this Court, is that his interest in that is not large by any means.  It appears, therefore, that the only assets of the parties are the former matrimonial home at H Town, the L Pty Ltd company and also the discretionary trust or the family trust.  These matters have been valued, such valuations two in number:  one by a Mr M - who was an employee of N Partners - and secondly by Mr N himself.  Mr N’s valuation varies quite alarmingly from that of his employee, Mr M, who is no longer with the firm, brought about solely as a result - as I read briefly the report of Mr N - as a result of his not being adequately supplied with necessary facts and figures concerning not only L Pty Ltd but also the discretionary trust, the family trust.  As a result thereof, his up-to-date valuation is somewhat limited.

12. There appears as though there has been a mortgage of some $700,000 placed upon the G Town properties - rather, the G Town properties were used as security for these properties.  This large amount of money has not in any way been particularised by the husband.  I refer to and incorporate in these, my reasons for judgment, two orders of this Court:  one of 10 November and the other 21 of February, wherein endeavours were made to have the father/husband make full disclosure.  He has refused to do so, citing the fact that he hasn’t got any money and that he can’t afford solicitors.  That in itself is ridiculous.  I have seen many parties in this case who have come before this Court unrepresented, and I have commented that on occasions I have seen them do a better job than the legal advisers have done in other matters.  He is obviously an intelligent man, and I think he just has an arrogant disregard for authority, as it appears.

13. The wife is seeking an order that the parties’ assets, either of them or jointly, be distributed on a fifty-fifty basis.  It has fallen from Mr Peters, notwithstanding order 4 of my order of 11 February, that he indicates that they separated in 2002;  that it’s totally unfair;  he gave the wife the house, which she concedes - or gave the wife his interests in the house, which she concedes, at H Town and that he shouldn’t have to pay anything further;  that as a result of the machinations of the former wife and her solicitors, that he is now broke;  that he hasn’t got any money at all;  that he will be out on the street by 2 April and that a caveat which was placed, as I understand, by the solicitors upon the properties at G Town, to which I have referred, caused him - a contract which he had on those properties to fall over.  That has been cleared up in that there were two caveats:  one an initial caveat which lapsed, I would have thought, by the expiration of time, being three months, and the second caveat was withdrawn on 20 December. 

14. I would have thought that once that was withdrawn, there should have been no difficulty in the parties complying with the contract;  however, it has fallen over;  it may be that it has fallen over for another reason.  He is still of the view that the caveat is the thing which has caused him to be unable to sell the property.  I do not accept that.

15. He has endeavoured to give evidence by way of a phone communication from F Town, saying he hasn’t got enough money to come down.  I allowed him to do so.  He obviously is an aggressive man and has attempted to communicate directly with me by email, which was received yesterday afternoon.  I make it quite clear I have not and would not consider his email in any way whatsoever.  He was of the view that he had the right to be heard in whatever manner he considers, and he did not impress me one jot.  He has already threatened to take this matter on to another place, which he is fully entitled to do so.  He appeared to be seeking advice from me, and I made it quite clear to him that I am not here to advise him.

    I do not believe that it could be suggested that the properties of the parties could in any other way be divided rather than fifty-fifty under the principles of section 79 as at the date of separation.  They obviously both worked very hard;  they assisted each and worked as a partnership, and as a partnership, I would have thought it was a fifty-fifty partnership.  Subsequent thereto, the husband has gone off and done his own thing, and so has the wife.  She is in gainful employment, but, as she says in her affidavit, she has reached the peak of her career and does not consider that she will improve any further.  She is able, I would have thought, to maintain herself reasonably.  But that’s not the only matter that I have to consider.  Her health is not good and I refer to the affidavit of Dr O, in which her health is set out quite fully.  I would have thought that unless she takes good care of herself, her future is not that bright.

16. The husband, of course, says that he has not any moneys whatsoever, that he owes nothing.  It appears from Mr N’s latest up-to-date valuation that he may be right; however, I would have thought that if there was any weighting at all in favour of the wife, that that perhaps may be offset by there being perhaps a weighting in favour of the husband of an equal amount, and it’s because I do not consider the provisions of section 75(2) will benefit either of the parties I would think that fifty-fifty is the proper distribution of the assets of the parties between them.

17. I take into consideration that some of the assets which are now comparatively small - I think one is only worth 14,000 where Mr M had it well in excess of 100,000 - are not of much moment, but these assets were acquired subsequent to separation.  I can still see no reason why the parties should not have their assets divided fifty-fifty.  I have had placed before me a draft order by Selfridge of counsel on behalf of the applicant.  I have inquired of him the costs which his client has incurred, and he is able to inform me from the bar table that an estimate is about $50,000.  I note there have been two lengthy reports from N Partners; they in themselves would not be cheap.  And there’s also - I have a report from a Mr P, and obviously the costs will be rather large.

18. Doing the best I possibly can on the evidence before me and it being, in effect, uncontradicted, I order in accordance with the draft put before me and signed by myself, reserving the right to edit it upon a more lengthy consideration.

RECORDED:   NOT TRANSCRIBED

1. He has failed to comply with orders of the Court.  As a result of his failure, it has incurred your client in much more excessive expenses.  It has caused one report to be varied considerably - that’s Mr M’s report - to be varied considerably by Mr N, and it appears on the face of it that the recalcitrant attitude of the respondent husband is such that the costs have been increased enormously in this case.  In those circumstances, I take into consideration his conduct that he should pay the wife’s costs on an indemnity basis.

2. Selfridge of counsel has quite properly corrected me when I said that I didn’t remember seeing anything in the evidence concerning what she and the daughter did to assist the respondent after his injury in 1999.  He points out quite clearly in paragraph 22 that the amount of work that the wife and the daughter, Ms C, did to assist him. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 23 March 2011.

Associate:     

Date:              9 May 2011