Thurston and Loomis

[2017] FamCA 59

FAMILY COURT OF AUSTRALIA

THURSTON & LOOMIS [2017] FamCA 59

FAMILY LAW – PROPERTY – Interim proceedings – Application in a Case seeking for school fees to be paid from monies held in trust for both parties

Family Law Act 1975 (Cth)

APPLICANT: Ms Thurston

RESPONDENT: Mr Loomis

FILE NUMBER: BRC 1010 of 2012

DATE DELIVERED: 25 January 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25 January 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That Mr RO, as trustee of the funds standing to the credit of the Loomis-Thurston Superannuation Fund, shall cause the sum of $4,800 to be withdrawn from the monies standing to the account and to be deposited into the account he holds as trustee for the parties, Ms Thurston and Mr Loomis, in their own rights.

2. That upon presentation to Mr RO of an invoice from AC School for the fees relating to the child, KK Loomis-Thurston born … 2009, for the first term of this school year, being the period that concludes at the commencement of the Easter school holidays, Mr RO shall draw the amount payable from the money he then holds on trust for Mr Loomis and Ms Thurston and forward it to the AC School in payment of that invoice with notice to each of Mr Loomis and Ms Thurston.

IT IS FURTHER ORDERED

1. That the balance of the applications contained in the 2^nd Amended Application in a Case filed 23 January 2017 and the Response to an Application in a Case filed 19 January 2017, are dismissed.

2. That by close of business on Wednesday, 8 February 2017, the applicant, Ms Thurston shall file and serve any further written submissions that she wishes to make in respect of the final orders that the Court should now make for property adjustment as between the parties and child support departure, limited to 20 pages in length.

3. That by close of business on Wednesday, 22 February 2017, the respondents, Mr Loomis, L Limited and C Pty Ltd, shall file and serve any further submissions each of them wishes to make in respect of final orders and child support departure that they want the Court to make in this matter, limited to 20 pages in length.

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 Thurston & Loomis 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 1010 of 2012

Ms Thurston

Applicant

And

Mr Loomis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Loomis filed a Response to an Application in a Case on 19 January 2017. In that, he did not just seek orders that were truly responding to the application of Ms Thurston, but in which he made application for a number of other orders, including an order for Ms Thurston’ 4WD motorcar to be sold and from the sale proceeds each of the parties be paid $5,000 for the purchase of another vehicle.  

2. In the alternative to some orders that he did seek in response to Ms Thurston’ application for the school fees to be paid from monies in trust, he then sought a whole lot of other orders in respect of Ms Thurston’ financial circumstances.  He also sought orders in respect of the superannuation fund out of a misguided view, as I understand it, of what would happen with the superannuation fund after my final judgment.  He also sought, on his own admission, for the 22nd time, an order that forensic accountants be appointed to all of the parties’ interests to determine the assets and liabilities of the parties. 

3. As my final judgment in the property adjustment proceedings remains reserved, I have dismissed all of those applications.  The final trial of the competing applications for substantive property adjustment relief and child support departure applications concluded in December 2012.  I am not at all persuaded by Mr Loomis that the trial should be reopened at this stage so that further evidence of Ms Thurston’ financial circumstances can be put before the Court.  Nor am I convinced that there is any just and equitable reason why at this point in time, whilst my final judgment is reserved, Ms Thurston should be ordered to sell her motorcar and provide some of the proceeds of sale to Mr Loomis. 

4. In respect to the superannuation fund, as I say, Mr Loomis’s application was misguided because he did not realise that when I make my final judgment the relationship between him and Ms Thurston in respect of financial circumstances, including their joint directorship of the trustee company of their superannuation fund, will be completely severed.

5. The trial having concluded and all the evidence of the parties having been adduced before the Court at that trial, for the 22nd time I say to Mr Loomis, I will not be appointing forensic accountants as he asks. 

6. In respect of the balance of Ms Thurston’s application, she seeks orders in relation to the real property that is owned by L Limited in the United Kingdom.  It is a commercial property owned in a place called Town J, the exact whereabouts of which I must say I am unaware. It is a property that has three commercial units on the ground floor as I understand, one which is leased to an entity running a cash converter shop, one that is leased to another entity that is sub-leased to some people who are running a sandwich bar, and the other is a gentleman’s barber shop. Upstairs there are some one bedroom units that had been leased to a housing cooperative. 

7. Ms Thurston is concerned that the upstairs one bedroom units are not currently being leased and she sought orders to take control and lease them out.  I understand that Ms Thurston’ application is based on concerns that she referred to as “wastage” and devaluation of the building that principally arises from her application for transfer of that property to her.  

8. I am simply not persuaded by the material that is before me today and having regard to all of the evidence that I have read and heard at the trial and the consideration that I have been giving to the matter on a final basis since, that it is appropriate just and equitable as between the parties for me to order that Ms Thurston now takes control of the leasing of the units in that building when final judgment is so close and when, at least on a prima facie basis at this point in time, I very much doubt that any of my final orders will include a transfer of that property from L to Ms Thurston.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 January 2017.

Associate: 

Date:  10 February 2017