Walsingham and Walsingham

[2007] FamCA 233

FAMILY COURT OF AUSTRALIA

WALSINGHAM & WALSINGHAM [2007] FamCA 233

FAMILY LAW - ENFORCEMENT – Contravention Application (No. 2) brought by wife - Application made out - Husband ordered to produce specific documents

APPLICANT: Mrs Walsingham

RESPONDENT: Mr Walsingham

FILE NUMBER: MLF 1556 of 2004

DATE DELIVERED: 17 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT NO. 2 OF: Guest J

HEARING DATE: 17 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. The husband do cause to be produced to the wife within 14 days of this date copies of all monthly statements of account relating to account number … with Bank SA in the name of the husband as from 1 January 2006 to 31 December 2006

2. The Form 18 Application for Contravention filed by the wife on 3 January 2007 be otherwise dismissed. 

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1556  of 2004

Mrs Walsingham

Applicant

And

Mr Walsingham

Respondent

REASONS FOR JUDGMENT [NO. 2]

1. I have before me a further Form 18 Application for Contravention brought by the wife and filed on 3 January 2007.  The respondent to the application is the husband.  By that application, the wife alleges that the husband has failed, "without reasonable excuse", to comply with an order made by Registrar Riddiford made on 12 December 2005. 

2. Paragraph 9 of that order reads as follows:

   “Both parties are to provide each other within 30 days with copies of all band[sic] statements for bank accounts operated by them for the period 1 July 2003 to 30 November 2005 inclusive”.

3. The affidavit filed by the wife in support of her application alleged that the husband had not disclosed his business bank account held with the ANZ Bank under the trading name D Company.  She also asserted that he had a Bank SA Bankcard and had not disclosed any financial documents to that card.  The wife alleged that she recently requested he disclose this account and repeatedly, she claims, made similar requests in the past.  It was her evidence that to date, full and frank disclosure had not been provided by the husband in relation to that particular bank account.

4. In the circumstances, the wife sought that the husband comply with the order and disclose the D Company bank account and all bank statements or financial records from the Bank SA bankcard account from July 2003 to December 2006. 

5. The husband pleaded not guilty to the alleged Contravention and caused to be filed an affidavit on 11 January 2007.  He denied the allegation that he had not complied with the order of Registrar Riddiford and deposed that it had been explained to the wife, "for the last three years", there had never been a separate bank account for the business, D Company.  He deposed that the statements for Bank SA bankcard were never ordered “in the Trial Notice”, as the account had no savings function, but a limit of $500.  Further, that any debt incurred by the card was discharged by him “every day on an [A Credit Union] account” (A Credit Union).

6. The husband also deposed that he did not believe he had contravened any order as there was and had never been an ANZ “[D Company]” business account.  Further, it was his argument that Registrar Riddiford never ordered him to supply copies of the Bank SA bankcard details, as it was not linked to a Bank SA savings account and that no money could be withdrawn from it.  He said it was only active when “something” was purchased on the bankcard and required repayment.  That, at first blush struck me as a distinction without a difference.

7. In the course of her evidence, the wife relied upon the husband's affidavit filed 18 October 2005, and in particular, paragraph 2(k).  That read, in summary, that the husband had one other account with the ANZ Bank in which he deposited $15 to $20 to open the account for a business venture “which never proceeded”. 

8. In his evidence, the husband said that he still had a Bank SA Bankcard and had included the statements.  I could not understand why this issue had not been raised a lot earlier in the course of discovery, given 12 months, and longer had passed.  However, it was the wife’s maintained assertion that the husband had not disclosed the business venture account of D Company nor the bank statements. 

9. When cross-examined by the husband, the wife said that it was her understanding he had a registered business, styled D Company.  She conceded, however, that she did not know if she subpoenaed the ANZ Bank records (which she had not) whether she would find records relating to that business.  It seemed to me that much of what she was asserting was guesswork on her part, given the history of their relationship and had merely embarked upon a fishing expedition.  She said, and significantly so, that she “assumed” the business venture referred to in paragraph 2(k) of the affidavit of the husband filed on 18 October 2005 was in fact D Company. 

10. The husband gave evidence.  He made it clear that he never opened a bank account in the name of D Company.  When asked what was the meaning of paragraph 2(k) in those circumstances, he explained that he was going to undertake what he described as a "sales job" over the Internet which required a bank account.  He opened an account in about June or July 2004 into which he deposited $50.00.  Subsequently he learned that it was some form of “tax avoidance scheme” and, it seemed to me from what he said, related to a fiscal arrangement involving an undesirable Eastern European gentleman. 

11. The account was later closed.  It was clear to me from what he said, and it was not otherwise pursued, that he has no account in the name of D Company.  It was his belief that it was closed in about December 2004 or January 2005. 

12. In the course of his evidence, the husband said he still had a Bank SA Bankcard with a “limit of $500” which he declared, he claimed, to Registrar Riddiford.  He then said that the Bank SA Bankcard had not been produced because there “were no savings attached” to it.  That was somewhat inconsistent but nonetheless, I can understand how it was being put by him.  He then claimed that all debts on the Bankcard were paid by the SA Credit Union Bank and that he had “some statements” in court, which he produced.  He made it clear that it was only activated if he purchased some commodity.  The husband was of the belief that he had produced some of these documents to the wife in about December 2004, but that was roundly rejected by the wife.  He then made it clear that he received monthly statements from Bank SA.

13. It seems to me that there has been a notional, if I can put it that way, non-compliance with the order and in terms of what remedy was sought in the circumstances, it was fairly put by the wife that she only sought an order that the husband do produce to the court and discover the bankcard statements relevant to Bank SA account number … for the past 12 months.  I will order that he does that.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  20 March 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Walsingham & Walsingham