Swinnterton and Peters

[2010] FamCA 1028

FAMILY COURT OF AUSTRALIA

SWINNTERTON & PETERS [2010] FamCA 1028

FAMILY LAW – PROPERTY – Interim

APPLICANT: Ms Swinnerton

RESPONDENT: Mr Peters

FILE NUMBER: BRC 10664 of 2007

DATE DELIVERED: 10 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 10 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge of Counsel

SOLICITOR FOR THE APPLICANT: Burns Lawyers of Springwood

THE RESPONDENT: In person

Orders

1. The Husband forthwith do all things necessary to seek a payout of all monies currently held in the Peters Superannuation Fund.

2. Immediately upon receipt of the payout sum described in order 1 above, the monies are to be paid into the account of Burns Law Solicitors Trust Account who act for the Wife.

3. The monies described in Order 2 above are to be paid to the Wife immediately upon receipt into her solicitors’ trust account less disbursements and/or any fees outstanding to her legal representatives.

4. Within 28 days the Husband is to disclose to the Wife all bank statements from the period 2007 – 2010 to cover the period he came into sole possession of both of the N properties.

5. The Husband is hereby restrained and injuncted from disposing of all assets in his possession including but not limited to his interest in the S Development, 8 M Street property, Peters Trust and all other assets including boats and motor vehicles.

6. The net sale proceeds of the sale of the property at 10 M Street are to be disbursed as follows:

   (a)to meet all fees and disbursements owing in effecting the sale;

   (b)the balance to the Bendigo Bank Limited to meet any outstanding mortgage due;

   (c)any balance of monies into the Wife’s solicitors’ Trust Account.

7. The Husband is to disclose to the Wife within 28 days, and through his accountant, all particulars of how the alleged $716,000 of liabilities owing to the Bendigo Bank came to be including details of how and why the bank has called in the mortgages.

8. The parties are to forthwith make provision to have the report of C Consultants of 21 January 2010 in respect of all financial interests of the parties updated, costs of such updated report to be borne equally.

9. The Respondent Husband pay the Applicant’s costs of and incidental to today’s hearing on a solicitor and own client basis (indemnity).

10. If the Husband does not comply with the Order made in relation to discovery on or before 28 January 2011 the Wife is at liberty to relist the matter on 24 hours’ notice.

11. The matter be adjourned to 10.00am on 17 February 2011.

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 orders in relation to her marriage to the respondent, Mr Peters.  The matter has been before the Court for a little period.  Generally it refers to a marriage in excess of 20 years in duration, a marriage from which there were two children, all of whom are adult; a marriage which obviously indicates that both parties have worked physically hard in the accumulation of whatever assets they have.  They unfortunately separated some time ago, and as I’ve said the wife applied for property settlement.  On 19 April 2010 certain orders were made by myself, it being a LAT procedure. 

2. I made certain orders in relation to the trial and directions for filing of documents and other matters.  I refer in particular to paragraph 3 and to paragraph 7 of that order.  The respondent has failed totally to comply with any of those orders, and as a result thereof, the Court is left with the fact that he has put no evidence before us to indicate what he considers to be the assets which are capable of division, and nor has he put before us any evidence as to any debts and/or liabilities.  In other words, insofar as he is concerned, he’s put nothing before us about his assets and liabilities.  The applicant wife has.  She set out a balance sheet which I tend to find of little assistance nowadays.  However, it’s been put before me.  And having been assisted by Selfridge of counsel it appears that there is on the balance sheet net assets of $2,339,970, and I refer to the document entitled Snapshot, which I place with the papers.

3. The wife is seeking a distribution of those assets 50/50, and may I say in passing as I’ve already indicated, on my prima facie reading of the only material which is put before me by the wife, that appears to me to be very proper and perhaps it may be a little generous in favour of the respondent.  She has reached the top, as she says, in her career and cannot look forward to anything more;  notwithstanding, she is a manager of a branch of a business.  Upon the respondent deigning to appear here today, he indicated that it was his view that he should walk away, and that he has now told me this afternoon that he intends to get his accountant to do an accounting of his assets and liabilities, to sell everything up that he can, and he will consent, as I understand, to the wife receiving any balance. 

4. That on the face of it may be of some assistance, but unfortunately three of the prime real estate properties which are in issue, two of which seem to be either under a cloud or have already been sold.  They are the properties situated at N, which is in far north Queensland, one of which has been sold for 430, as has fallen from the respondent.  The applicant only became aware of it when she was told today.

   RECORDED  :  NOT TRANSCRIBED

5. It appears that that property has been heavily encumbered, and in all probability we do not know.  In all probability there will be nothing left.  There is another property which is in a juxtaposition to it which I understand is valued at some - - -

   RECORDED  :  NOT TRANSCRIBED

   Three five zero, thank you.  There are valuations of those properties.  It has further fallen from the respondent in negotiations between himself and Selfridge of counsel for the applicant that there appears to something like $716,000 in debt which has been accumulated in relation to a development known as S.  This S interest of the respondent has been valued by C and partners, and it’s indicated that the respondent’s interest in it is reasonably substantial.  But if, in fact, there are 700-odd thousand dollars which have been accumulated by way of debts personally by the respondent, this puts not only the N property at risk but could, in some circumstances, put the mother’s interest in the house at W under some risk.  This, of course, cannot take place in all the circumstance.  She has been in that house for a considerable period;  I think it was subsequent to separation that she entered into that house, and it is her own.  It is in her name alone. 

6. As I said, there is a risk.  At this stage I doubt very much that anybody can touch it, but there is a risk if some court will order to find that the respondent had an interest in that property, which I doubt very much any judge of this Court be persuaded would be the case in all the circumstances as they stand at present.  I emphasis that.  It has been put before me by Selfridge a draft order which is an interim order.  He indicates what he has spoken to the respondent about.  He cannot proceed today as there has been no disclosure.  He does not know what the respondent’s financial circumstances are, and consequently he could not put before the Court any form of final order and protect his client generally.  I’ve had a look at that.  What I might say in précis is that the wife is seeking that the husband’s superannuation, ----

   RECORDED  :  NOT TRANSCRIBED

7. --- which was about 158,000 some two years ago, be paid out to her in part-payment of any judgment which may at a later stage be made.  I personally think, having a look at it, that it’s a very wise idea, that it probably would be preferable having the money in her hands, as it appears it may go at a later stage into third parties’ hands.  I have looked at the other parts of the interim order, and they are an endeavour to get disclosure given by the respondent so we know what’s going on with his estate. 

   ORDERS DELIVERED

8. By indemnity basis, I indicate the reason for my doing so is that there has been a total and arrogant disregard for the orders of this Court.  It is solely the respondent’s fault that this matter has gone away today, and consequently I do not think that the wife should in any way be prejudiced by having to pay costs.

   RECORDED  :  NOT TRANSCRIBED

   ORDERS DELIVERED

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.

Associate:     

Date:              18 November 2010