Wimble and Wimble

[2011] FamCA 423

FAMILY COURT OF AUSTRALIA

WIMBLE & WIMBLE [2011] FamCA 423

FAMILY LAW - PROPERTY SETTLEMENT – where the parties have been unable to reach agreement regarding their property settlement – where the wife contends that the husband has engaged in significant “waste” in relation to the parties’ property – where the wife claims she should receive a greater share of the parties’ superannuation as a result of the husband’s waste – where there is disagreement as to the correct value of certain artwork in the possession of the wife – whether parties are likely to reach agreement – where matter set down for trial.

Family Law Rules 2004 (Cth)

APPLICANT: Mr S Wimble

RESPONDENT: Ms S Wimble

FILE NUMBER: BRC 11246 of 2008

DATE DELIVERED: 30 May 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 30 May 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The final hearing of this matter be set down for two days commencing at 10.00am on Tuesday 15 November 2011 in the Brisbane Registry of the Family Court of Australia.

2. The matter be listed for a Directions Hearing before a Registrar, at a time and on a date to be advised, to make directions to prepare the matter for final hearing, and unless otherwise ordered, such hearing shall be conducted by telephone without requiring the personal attendance of any party.

3. Mr R, the father of the Respondent, is granted leave to appear by phone on behalf of the Respondent at the Directions Hearing before the Registrar.

NOTATION:

A copy of the Reasons for Judgment of today will be provided to the parties and the Registrar to assist with their preparation for the final hearing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 11246 of 2008

Mr S Wimble

Applicant

And

Ms S Wimble

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me today for yet another appearance in what has been a very lengthy, and so far fruitless, exercise in attempting to have the parties reach agreement as to the final resolution of the property or financial issues live between them.  On the last occasion it appeared that hope would triumph other expectation.  With the determination to be optimistic rather than the opposite, this matter was set down today on the basis that the parties would present to the Court today minutes of consent evidencing what I was then told was close to an agreement between the two of them. The optimism was misplaced.

2. Each of the parties, I am sure, have their own version of why agreement has not been reached and, as I said to Ms S Wimble (“the wife”) during the course of discussions this morning, I am very concerned to preserve the without prejudice nature of any conversations the parties have had with a view trying to resolve these issues between them.

3. Each of the parties has, for quite some time now, represented themselves.  The wife, in the early stages of those appearances, was extremely distraught, and at that time I gave leave for her father, Mr R, to appear as a friend of the Court in order to assist the orderly conduct of the proceedings.

4. Mr S Wimble (“the husband”), it seems, would disagree with this statement but it seems to me Mr R’s intervention, albeit plainly directed towards achieving the best outcome for his daughter, has, nevertheless, in terms of trying to keep these proceedings within bounds, been of some assistance. 

5. With that in mind, I inquired of the husband whether he had any difficulties with Mr R appearing by telephone at the directions hearing before a Registrar, which I foreshadowed.  He indicated that he did not.  I will make it plain in the orders that I make that Mr R has leave to appear and to assist the wife at that directions hearing.

6. The parties have each filed material in the lead up to today’s appearance.  It quickly became evident that there was a substantive issue between them which, in very broad terms, can be described as the husband asserting that the parties should bring about a result which achieves equality between them and that in order to achieve that, there be an adjustment specified by him within the private superannuation fund. 

7. The wife, on the other hand, alleges what can, very broadly, be described as “waste” on the part of the husband and alleges a significant diminution in the assets and superannuation interests that might otherwise be available to satisfy any section 79 order.

8. Principally as a result of that, I gather, she asserts that she ought receive a significantly greater proportion of the available property/superannuation interests than the 50 per cent suggested by the husband. 

9. When it became clear that the parties had not reached agreement, and today, at least, were not likely to, it became obvious that what seems to me to be a futile and rather silly pursuit of a trial is necessary.  In making those comments it is necessary to, however, record that we live in a democracy which has its core, the rule of law, and when parties properly, that is to say, without vexation or improper purpose, invoke their legal remedies and ask a Court to determine their rights, it is beholden upon a court to do so even if, as in this case, one wonders why two intelligent and mature people cannot otherwise resolve their differences.

10. With that in mind, I determined to conduct an investigation with each of the self-represented parties with a view to attempting to ascertain those issues which will be central to the determination of these proceedings at a trial which, I have indicated, will be set down for the first two-day slot available, namely, 15, 16 November 2011. 

11. The issues thus discussed can be described as follows.

12. Identification of the property and superannuation interests.  It appears that the parties are agreed that the property and superannuation interests, the subject of the proceedings, will be:

    (a)      the assets of a private superannuation fund,

    (b)      artwork and furniture, and

    (c)      two motor vehicles.

13. A significant amount of discussion ensued about the issue of valuation.  It appears that financials are available for the tax year ending 30 June 2010.  The husband indicates that the financials for the tax year ending 30 June 2011 may be available by the time of the trial.  Those financials will, it is said, provide evidence of the assets held by the superannuation fund and their value.

14. I have attempted to explain to each of the parties the necessity for evidence to be presented in a cogent and persuasive way and, in that respect, I have emphasised that there needs to be admissible evidence in respect of those matters about which specific findings will be sought from the Court.

15. I have also sought to emphasise that an exception to that principle can occur when the parties are in agreement that material should be before the Court.  As an example, if each of the parties agrees that the financials for the superannuation fund for 2010 and 2011, if available, should be before the Court, they might be tendered by consent. 

16. The husband has indicated that the trust deed for the private superannuation fund will also be put in evidence before the Court.

17. In respect of artwork, the husband exhibits to an affidavit filed by him on 24 May 2011, a list of household contents, artwork and chattels.  A number of pieces of specific artwork have attributed to them a dollar value and the total of those pieces of art is $177,900. 

18. Those figures have been provided by a person who describes herself as the “senior art consultant” at, it seems, a gallery at  the Sunshine Coast.  The husband indicates that the artworks were purchased from that gallery.  The wife has concerns about the values.  In essence, she asserts that there is a significant overvaluing of them.  It might be observed that, as I understand it, the artwork is in her possession.

19. I have attempted to explain to each of the parties the Court’s Rules with respect to single expert evidence.  Each express agreement with the common sense in having one joint expert valuer provide valuation evidence in respect to the artwork, the furniture, and the vehicles. 

20. Whether these two particular parties are able to agree sufficiently to allow that to occur remains to be seen.  It is plainly desirable that it should occur and that each of them bear the costs of that valuation equally.

21. I have made it plain, however, that should the parties be unable to agree, then, as it were, the cards will lie where they fall and the Court will do its best on the evidence available before it in November to make such order as is possible to be made on the evidence. 

22. In that respect, I should emphasise that there is a determination on my part to bring these proceedings to an end in November.  I have attempted to carefully explain my obligation to make a decision according to law and to make a decision, thereby, which is just and equitable. 

23. However, I am equally determined that even if the evidence is in a state which is not ideal, I will, nevertheless, proceed to hear and determine the matter unless the circumstances are overwhelmingly such that justice requires otherwise.

24. The issue of liabilities is confusing. 

25. The husband asserts that he has a number of personal guarantees including, in particular, in respect of indebtedness to the National Australia Bank totalling about $4.5 million. 

26. The wife, too, says that she has obligations pursuant to personal guarantees in respect of a very significant sum.  She refers to an amount in excess of $3 million.  The husband says that he is responsible for those debts, that is to say, he appears to assert that these debts, guaranteed by the wife, ought not be taken into account in arriving at the net property of the parties for either of them. 

27. I don’t consider the husband bound by that statement today, but the issue of liabilities, nevertheless, remains somewhat clouded and needs to be the subject of evidence, or agreement, prior to the trial of this matter.

28. The husband also indicates that there is a prospect that he will enter bankruptcy.  He says that there is no judgment outstanding against him as yet which could found a bankruptcy notice, but there remains the possibility that he may present his own petition at some stage (although he said he “wasn’t sure” if or when that might happen).

29. The provisions of the Bankruptcy Act might then be of relevance to the trial and relevant evidence with respect to any bankruptcy must, of course, be presented to the Court should that event occur.

30. I have determined that the trial will be heard on 15, 16 November 2011.  I have indicated to the parties that I will order that a directions hearing occur before a Registrar of this Court by telephone with a view to arriving at all such directions as might be necessary so as to have this matter heard and determined. 

31. I have indicated that I would provide these “reasons” as a guide to the Registrar and also to each of the parties – in effect as a form of “aide-mémoire” as to what has transpired in Court today. 

32. I will give leave to Mr R to appear at that telephone conference to render assistance to his daughter, the wife.

33. The intention is that there will be discussion between the parties with a view to limiting the material relied upon at the trial of this matter to only such material as is essential to have this matter heard and determined at that time.

34. It is, of course, not possible for me to indicate today to the parties what material may or may not be relevant.  However, I have made it clear that I do not require either of them to file a new affidavit, simply repeating matters which have been relied upon by either of them in earlier material. 

35. I have, though, made it very clear, I hope, that I expect each of the parties to identify clearly only those passages in earlier material that they each say are essential to have this matter finally determined by me.  Notwithstanding the very lengthy and very unfortunate history of this matter so far, the trial issues are, in my view, nevertheless of narrow compass.

36. In that respect, it might be observed that, in crude terms, the parties are about $120,000 apart. In respect of the current property or superannuation available for distribution (whatever may or may not have occurred with respect to property or superannuation interests that might have been available at an earlier time) the primary benefit to either of the parties will be expressed in terms of what they receive from the private superannuation fund. 

37. Each of the parties are about mid-40s and the husband asserts that, under the terms of the private superannuation deed, the funds are not available to the parties in the usual course until the they each attain 65 and retire from the workforce. 

38. That being the case, the sole current argument, it seems, is about the respective shares of $120,000, none of which can be received, all else being equal, for about 20 years.

39. I repeat: one would think that mature and intelligent people could reach agreement. Respective hopes for the future might be more important than the perceived or alleged sins and omissions of the past. Be that as it may, I trust that the parties will, in any event, reach agreement as to those matters – the relatively confined matters – which need to be determined at the trial of this matter.

40. I will make orders in accordance to those that I have previously indicated.

41. I will, as part of those orders, direct that a copy of the transcript of these reasons (but not of the proceedings today) be prepared and provided to each of the parties free of charge and a copy provided to the Registrar who will undertake the telephone directions hearing to be so ordered.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 30 May 2011.

Associate: 

Date:  8 June 2011