AITKEN & AITKEN

[2019] FamCA 1010

FAMILY COURT OF AUSTRALIA

AITKEN & AITKEN [2019] FamCA 1010

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – Where the wife seeks to include an affidavit filed after judgment was reserved – Where the evidence is not so material that it is required by the interests of justice – Where the evidence is unlikely to affect the result of the case – Application dismissed

FAMILY LAW – INJUNCTION – Exclusion from matrimonial home – Where each of the parties seeks an order for exclusive occupation of the former matrimonial home – Where the wife is the current resident of the former matrimonial home – Where the parties are engaged in running a business – Where the former matrimonial home was previously used for business purposes – Where the husband contends that exclusive occupation by him is required to maintain that purpose – Where it is in both parties’ interests that the business continue to trade profitably – Where the parties are unable to co-operate or make joint use of the property – Where it is not just or convenient to exclude the wife from the home – Order made for the wife to have exclusive occupation – Order made for the husband to be restrained from attending the property unless by agreement in writing

FAMILY LAW – INJUNCTION – Where the wife seeks to be restored to a position where she is involved in the day to day running of the parties’ business – Where the husband seeks that the wife be removed as a director and he have sole responsibility for the running of the parties’ business – Where each of the parties alleges that the other has caused financial harm to the business – Where the wife alleges that the husband is acting inconsistently with his obligations as a director – Where it may be necessary for an administrator to be appointed – Where neither party has sought such an order as yet – matter adjourned to allow the wife to elect whether this Court is the appropriate forum to seek an order for an appointment of an administrator

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks an order for spousal maintenance – Where the wife has access to a substantial funds – Where the wife cannot establish that she cannot adequately support herself – Where the source of the proposed spousal maintenance is jointly owned by the wife – Application dismissed.

Family Law Act 1975 (Cth) ss 72, 74, 75, 114

In the Marriage of Waugh (2000) FLC 93-052

Mullen& De Bry (2006) FLC 93-293
Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365

APPLICANT: Ms Aitken

RESPONDENT: Mr Aitken

FILE NUMBER: SYC 5021 of 2019

DATE DELIVERED: 23 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 15 November 2019 and 16 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Ryan QC and Mr Ford

SOLICITOR FOR THE APPLICANT: Nolan Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gould and Mr Wong

SOLICITOR FOR THE RESPONDENT: Coutts Solicitors & Conveyancers

Orders

1. The wife’s application to re-open contained in the Application in a Case filed 27 November 2019 is dismissed.

2. Until further order of the Court the wife shall have the right to occupy the former matrimonial home at the property at B Street, Suburb C in the State of New South Wales and the husband is restrained from attending at that property unless the parties otherwise agree in writing.

3. The Court Noted that the competing applications about the management and administration of the family companies including D Pty Ltd, the case management of those issues were addressed by the orders and notations made on 16 December 2019.

4. Otherwise as to the interim orders sought by the wife in her Initiating Application filed on 1 August 2019 and by the husband in his Amended Response to an Application in a Case filed on 13 November 2019, those applications are dismissed.

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 Aitken & Aitken 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 SYDNEY

FILE NUMBER:  SYC5021 of 2019

Ms Aitken

Applicant

And

Mr Aitken

Respondent

REASONS FOR JUDGMENT

Introduction  

1. Ms Aitken (“the wife”) commenced proceedings for property settlement in this Court.  The respondent is Mr Aitken (“the husband”).  These reasons relate to their competing applications for interim and interlocutory orders.

2. The parties separated in December 2018 after being married for more than 28 years.  They established a business in 1991 and worked in it together until separation.  It is common ground that the assets of the parties may have a value of the order of $65 million. 

3. The parties are both directors and shareholders of the main family company but the wife has not been directly involved in the company since separation.  The wife has been excluded from some business premises and from access to business accounts and records.  The circumstances that lead to the wife being locked out of the business are disputed.

4. The parties seek orders in respect of three main areas of dispute:

   ·whether the wife or the husband should have exclusive occupation of the property at Suburb C[1] which was the former matrimonial home;

   ·whether the wife’s roles in the management of the family business should be changed or restricted; and

   ·whether the husband should pay interim maintenance to the wife.

   [1]The property is referred to as being located at both 1 B Street, Suburb C and 2 B Street, Suburb C.  All references are to the same single property which is subject to these proceedings.

5. What follows are the reasons for the orders set out above.

Applications

1. In the Initiating Application filed on 1 August 2019 the wife sought interim orders in respect of the following:

   (a)exclusive occupancy of B Street, Suburb C;

   (b)possession of a motor vehicle 1 registration …;

   (c)a single expert valuation of real property;

   (d)a single expert valuation of D Pty Ltd;

   (e)a single expert valuation of the Aitken Unit Trust;

   (f)reinstatement of the wife as a signatory on seven bank accounts in the name of D Pty Ltd;

   (g)payment by way of interim maintenance at the rate of $1,279 per week;

   (h)payment by the husband of council rates, water rates, insurances, land tax and water access licence with respect to the properties at B Street, Suburb C and E Street, Suburb F; and

   (i)discovery of various specified documents.

2. In an Amended Response to an Application in a Case filed on 14 November 2019 the husband also sought interim orders.  However, in the Case Outline prepared for the hearing on 15 November 2019 the orders sought by the husband were expressed as follows:

   Suburb C Property

   1.That from the date of these Orders, the Husband have the use and occupancy of the property at E Street, Suburb C to the exclusion of the Wife.

   2.That simultaneously with Order 1 above, the Husband shall be responsible for payment of outgoings, including but not limited to, Council and water rates, insurances, land tax and water access licence associated with the Suburb C property.

   Suburb F Property

   3.That from the date of these Orders, the Wife have the use and occupancy of the property at E Street, Suburb F to the exclusion of the Husband.

   4.That simultaneously with Order 3 above, the Husband shall be responsible for payment of outgoings, including but not limited to, Council and water rates, insurances, land tax and water access licence associated with the Suburb F property.

   Early Distribution of Funds

   5.That in the alternative to Orders 3 and 4 above, the Husband provide the Wife with an early distribution of funds in the sum of $3,500,000.00 pursuant to Section 79 of the Family Law Act.

   D Pty Limited

   6.That within seven (7) days, the Wife shall resign as a Director of D Pty Ltd and the Husband shall continue to manage the Company in the ordinary course of business.

   7.That in accordance with Order 5 above and until further Order, the Husband shall provide monthly company bank statements and monthly MYOB reports to the Wife.

   8.That the Wife is restrained from entering the Company premises (known as E Street, Suburb C, 1 G Street, Suburb H, 2 G Street, Suburb H, and J Street, Suburb H) or dealing with customers or doing any act to damage its commercial relationships.

   Company Bank Accounts

   9.That until further Order, the Wife be restrained from accessing all company bank accounts including:

   (a)D Pty Ltd Term Deposit Account number …11;

   (b)D Pty Ltd Term Deposit Account number …03;

   (c)D Pty Ltd Cash Reserve Bonus Account number …02;

   (d)D Pty Ltd Loan Account (redraw facility) Account number …52;

   (e)D Pty Ltd Trading Account number …29;

   (f)U Pty Ltd Business Account number …72;

   (g)U Pty Ltd Cash Reserve Account number …86;

   (h)U Pty Ltd Term Deposit Account number …78;

   (i)Aitken Unit Trust Trading Account number …29;

   (j)Aitken Unit Trust Loan Account number …44;

   (k)Aitken Super Savings Account number …94;

   (l)Aitken Super Working Account number …07; and

   (m)K Bank Super Term Account.

   10.That in accordance with Order 8 above, the Husband shall provide the Wife with monthly bank account statements for all accounts listed above.

   11.(not pressed)

   Other Orders Sought

   12.That if either party fails, neglects or refuses to sign or execute any deed, documents or instrument necessary to give effect to these Orders, with such failure to act continuing for seven days, then pursuant to Section 106A of the Family Law Act, a Registrar of the Family Court of Australia shall hereby be empowered, directed and authorised to execute all such documents in the name of the party in default and to do all things and all acts necessary to give validity and operation to the said Orders.

   13.That the Wife’s Application be otherwise dismissed.

   14.That the Wife pay the Husband’s costs of and incidental to this Application.

Evidence

1. The wife relied on the following:

   (a)       Financial Statement of the wife filed 1 August 2019;

   (b)       affidavit of the wife sworn 31 July 2019 and filed 1 August 2019;

   (c)exhibits to the affidavit of the wife sworn 31 July 2019 and filed 1 August 2019;

   (d)       affidavit of the wife sworn and filed 7 November 2019;

   (e)       affidavit of Mr L sworn and filed 7 November 2019;

   (f)        affidavit of Ms M sworn and filed 7 November 2019; and

   (g)       affidavit of Mr N affirmed and filed 7 November 2019.

2. The affidavit of Mr L was excluded after an objection.

3. The following documents were tendered on an earlier date:

   (a)Financial Statements for D Pty Ltd for 2017/2018 (exhibit 1);

   (b)Financial Statements of Aitken Pty Limited as Trustee for the Aitken Unit Trust for 2017/2019  (exhibit 2); and

   (c)       wife’s Balance Sheet (exhibit 3).

4. The husband relied on the following documents:

   (a)       affidavit of the husband sworn 22 October 2019;

   (b)       affidavit of the husband sworn 25 October 2019;

   (c)       affidavit of the husband sworn 13 November 2019;

   (d)       affidavit of Mr X sworn 25 October 2019;

   (e)       affidavit of Mr X sworn 13 November 2019;

   (f)        affidavit of Ms O Aitken sworn 25 October 2019;

   (g)       affidavit of Ms O Aitken sworn 12 November 2019; and

   (h)      affidavit of Ms P sworn 13 November 2019.

Credit

1. There is an alarming difference in the versions of events deposed to by the parties and the various supporting witnesses.  As is often the case with interlocutory proceedings, there was no cross-examination.  Of course there can be differences in testimony for reasons other than a deliberate attempt to mislead the Court.  Memory is not an infallible or immutable device for storing and recovering facts.  A person’s recollection can be distorted by the effluxion of time or the circumstances of the event in question or of recovering the memory.  People see events from their own perspective and it is notoriously possible for two well-meaning witnesses to have an entirely inconsistent memory of an event that they attended together.  Unfortunately, unless there is independent corroboration of one version of an event about which the witnesses disagree, the Court is effectively left without a way of resolving many factual disputes.

Application to Re-open

1. On 27 November 2019 the wife filed an Application in a Case seeking to re-open her case in these interlocutory proceedings.  She sought that leave in respect of an affidavit filed on 27 November 2019.  By his Response filed 11 December 2019 the husband opposed the wife’s application.  The husband did not seek leave to re-open his case but if the wife’s application is granted he presumably seeks that his responding affidavit filed 11 December 2019 be also admitted into evidence.

2. In Summitt & Summitt and Ors (Re-opening)[2009] FamCA 365 (“Summitt”) Murphy J discussed the principles applicable to re-opening a case.  At [14] - [24] that discussion was as follows:

   14.In a case involving an application for settlement of property, it can broadly be said that common law principles govern applications to re-open in this Court (see e.g. Gelley & Gelley (1992) FLC 92-290 and the cases there discussed).

   15.Those principles make it clear that the granting of leave to re-open is discretionary.  That discretion is guided by the interests of justice.  The essential question is, is the court more able to do justice in the facts and circumstances of the particular case if the application is granted (see e.g. Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256; Urban Transport Authority v NSEISER (1992) 28 NSWLR 471 at 478 and EBv CT (No. 2)[2008] QSC 306).

   16.In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side (see Smith above, at 266-267).

   17.A recent decision of the Supreme Court of Queensland, EBv CT (No. 2) [2008] QSC 306 was referred to by both counsel for the husband and wife.  That case involved an application for property settlement under (then applicable) State law with respect to a de facto relationship.  In that case, Applegarth J summarised, by reference to earlier authorities, the (common law) principles applicable to a re-opening:

   [2] The guiding principle in deciding whether to grant leave to re-open is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finbrough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality and litigation.

   [3] In Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment had been delivered. As to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.

   [4] In Reid v Brett the criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered, was said to be as follows:

   (a) The further evidence is so material that the interests of justice require its admission;

   (b) the further evidence, if accepted, would most probably effect the result of the case;

   (c) the further evidence could not by reasonable diligence have been discovered earlier;

   (d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

   [footnotes and references omitted]

   18.In addition, his Honour held that:

   [5] Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigant. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation can not always be measured in terms of money or cured by an order for costs. The interests of justice is served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.

   19.I consider that that is particularly true of litigation in this court generally, and in this case specifically.  I will return to this issue below.

   20.The decision just referred to involved a claim, under the Queensland legislation then applicable, for property adjustment in the context of a de facto relationship.

   21.His Honour considered that, in determining that application, the property of the parties and its value should be determined as at the date of the hearing. That principle is applicable, generally speaking, to applications for settlement of property pursuant to s 79 of the Family Law Act 1975.  In the context just described, his Honour went on to say:

   [6] The application to re-open is not to overcome a technical defect in the evidence or to tender evidence that is omitted by inadvertence. The application seeks to raise a new issue, namely the current value of certain assets of one of the parties, whereas the issue litigated at the hearing of the assets, financial resources and liabilities of the parties as at the date of hearing. It is impossible to see how the respondent could be permitted to call evidence of the current value of some of his assets without, in fairness, opening up the general issue of the current value of the parties’ assets. To do otherwise would be to fall into error. It would be wrong to determine the matter on the basis of the current value of some assets and the value as at the date of hearing of the balance of the assets.

   22.However there are, here, significant points of distinction.  This is not a case (as was the case before his Honour) where the application is to allow the re-valuing of the property of one party only.  However, his Honour goes on to say (at [7]) that:

   ... the relevant issue is the value of the parties’ property at the date of the hearing. The interests of justice do not require the admission of the evidence to determine that issue. It is contrary to the interests of justice to re-open the evidence to enable the value of the assets to be re-assessed at dates after the respondent’s case has closed and after the hearing was concluded.

   23.Without expressing any view of what the position might have been in respect of the then relevant Queensland legislation, it is necessary, I think, to be a little more circumspect about the position in respect of s 79 applications under the Family Law Act.  It has been said for example (albeit in a different context) that: “... in addition to the date of the hearing, the value of property at other dates may be important.” (Australian Family Law, Lexis Nexis, Vol 1, [79.113]).  That is because, primarily, the nature of contributions can change.  Thus, the issue at a trial may be broader than simply the value of property at the date of the hearing.

   24.That said, it is equally true to say that the date of hearing is almost inevitably an important date for the ascertainment of the value of s 79 property and very frequently – as was the case here – used as the relevant date for the purpose of ascertaining the value of “the property of the parties or either of them” within the meaning of s 79.

1. The wife’s application is to re-open her case in the proceedings heard on 15 November 2019 to give the evidence contained in her affidavit filed 27 November 2019.  The affidavit deals with several issues, including one about the completeness of the husband’s costs disclosure provided on 15 November 2019.  However as the wife’s case outline document makes plain, the three relevant topics addressed in the affidavit relate solely to the proposal to store equipment on Suburb C, in the context of competing applications for exclusive occupation.  The propositions the wife seeks to draw from the new evidence are:

   (a)there is no insurance available for Suburb C if equipment are stored there for Q Company;

   (b)there is no evidence of a proposed contract with Q Company; and

   (c)council approval would be required to permit the storage of equipment at Suburb C.

2. This is a discretionary matter and therefore the class of considerations is not closed.  The guiding principle is whether the interests of justice are better served by admitting the new material.  Turning to the points raised in Reid v Brett:

(a)  Is the further evidence is so material that the interests of justice require its admission;

1. In my view the new evidence is not so material that it is required by the interests of justice.  The broad facts are unchanged.  There is no evidence that Suburb C can be insured if it is used in a way not permitted by the relevant zoning and council requirements.  The husband has not put into evidence a draft of the proposed agreement with Q Company other than a series of hearsay statements.  Notwithstanding what was done in the past, there is no evidence other than evidence that the parties are not permitted to store equipment on a commercial basis at Suburb C.

(b)  would the further evidence, if accepted, most probably effect the result of the case;

1. In my view the further evidence is unlikely to affect the result of the case.

(c)  could the further evidence have been discovered earlier by reasonable diligence;

1. The further evidence was apparently available at an earlier time but these are interlocutory proceedings and the issue in question is one that arose at or about the time the hearing.  The parties have communicated with each other and with the local council but to date they have not been able to change the basic facts.

(d)  would any prejudice ensue to the husband by reason of the late admission of the further evidence.

1. Although opposed to the wife’s application, no prejudice was identified by the husband in admitting the new material.

Conclusion

1. The justice of the case does not require the new material to be allowed.  The wife’s application to re-open is dismissed.

Short History

1. The husband is 50 years of age and the wife is 48.  The parties were married and commenced cohabitation in 1990.  The parties separated for the final time on 3 December 2018.  The parties are not yet divorced.

2. The parties have three adult children:

   ·Mr X, who is 27 years of age;

   ·Mr Y, who is 22 years of age; and

   ·Mr Z, who is 20 years of age.

3. The parties started the business, D Pty Ltd, in or around April 1991 and they continue to be the directors and shareholders of the business.

Background Facts

1. Except where I have said so, it is my understanding that most, if not all of the following chronology, is not controversial.

2. Mr R and his wife were close to the husband from his childhood.  They lived near the home of the husband’s family and they cared for him on occasions when he was a child.

3. In 1990 the parties purchased in joint names a property at S Street, Suburb T for $115,500.  They were married and commenced cohabitation at the Suburb T property on 21 April 1990.  The wife was employed as a retail shop assistant and the husband was a driver.

4. In April 1991 the parties registered D Pty Ltd.  The husband and the wife were and are the directors and shareholders.  The wife was also the secretary.  D Pty Ltd commenced a business of manufacturing equipment.  It is now the largest manufacturer of this equipment in NSW and it earns significant income.

5. In 1993 Mr R approached the husband to see whether the parties would be interested in buying his property at E Street, Suburb C under a vendor finance arrangement, provided that he (Mr R) could continue to live on the property.  On 10 June 1994 the parties entered into a mortgage agreement with Mr R whereby the parties would pay $180,000 by annual instalments of $5,000 for a minimum period of ten years or until the date of death of Mr R.  In June/July 1994 the parties purchased E Street, Suburb C for $180,000 as joint tenants.  A caveat was placed on the title to protect Mr R’s “right of occupation” for the term of his life.

6. Mr R died in late 1994. 

7. The parties made a full repayment to the Estate of Mr R by paying $50,000 within three years.

8. In 1994 the parties commenced construction of a new residence on the Suburb C property.  This included demolishing the existing home and building a new four-bedroom family home and shed.  During construction the parties resided in a granny flat on the property.

9. In 1997 the parties moved into the new home on the Suburb C property and the business began operating from a shed on the property.  Later that year the local Council issued a notice to the parties to the effect that they were no longer able to operate the business from the property.  The wife asserts that there continue to be zoning restrictions on non-residential uses of the property.

10. In 1997 the parties, as trustees for the Aitken Unit Trust, acquired a property at J Street, Suburb H for $303,000 with the intention of building a factory from which to operate the business.

11. On 1 July 1999 the parties registered U Pty Ltd.  The parties are both directors and equal shareholders.  The company was established to acquire residential real estate.

12. In October 2000 construction of the factory on the property at J Street, Suburb H was completed and the business began operating from that factory.  The business hired its first employee to assist the wife in the office.

13. In April 2003 the Aitken Unit Trust acquired a property at 2 G Street, Suburb H for $1,246,689.  It was used as a holding yard for finished equipment.

14. Aitken Pty Ltd, as trustee of the Aitken Unit Trust, acquired a property at 1 G Street, Suburb H for $770,000.  The shed on the property was rented out to a third party, and the parties utilised the remainder of the property as a storage yard. 

15. In March 2013 the parties, as trustees for the Aitken Family Superannuation Fund, acquired 3 G Street, Suburb H for $520,000.  This was used as a repair facility for the business.

16. On 12 December 2013 Ms M (“the wife’s sister”) commenced to reside in the granny flat at V Street, Suburb W.  In January 2014 she started working for D Pty Ltd.

17. In March 2014 the husband was diagnosed with a tumour and he underwent surgery to remove it.  The husband’s recovery took some time and he was temporarily unable to drive.  The wife became his primary carer.

18. The parties disagree about some of what happened with the business after the husband’s surgery.  For six months the husband was not involved in the operation of the business.  The business operated through the parties’ son, Mr X, and Ms P and Ms HH (office administration).  The husband contends that the wife reduced her time in the office after 2014 but says that she was still responsible for managing the bank accounts and payroll.  The wife says that she went into the office on two days a week and that the husband’s mother cared for the husband on those days.

19. Thereafter, the husband was not fully involved with the business, with his focus moving to property development.  The husband did not return to work in the business as he was advised against it, however, he occasionally attended meetings with the biggest clients.  The wife says that she managed the business from 2014 until the parties separated.  I understand that the husband disputes that contention.

20. In June 2015 Aitken Pty Limited was registered.  The husband and the wife are both directors and equal shareholders.  The company was appointed the trustee of the Aitken Unit Trust.

21. In March 2017 the parties purchased a motor vehicle 1, through the business, for $295,116.20. 

22. In April 2018 the parties separated.  The husband vacated the former matrimonial home at Suburb C and moved into the property at AA Street, Suburb BB following completion of the renovations to that property. 

23. In April 2018 the wife began taking antidepressants.

24. In July 2018 the parties reconciled.  The wife moved in with the husband. 

25. On 3 October 2018 the parties purchased motor vehicle 2 for $220,000.  The vehicle was kept at CC Pty Ltd at Suburb DD.  On 16 October 2018 the wife purchased the original number plates for the motor vehicle 2 from Service NSW.  On 13 November 2018 the wife took out comprehensive insurance with EE Motor Insurance for the motor vehicle 2.  It is the wife’s evidence that, on the advice of EE Motor Insurance, the vehicle was insured for $250,000.

26. On 3 December 2018 the parties separated on a final basis.  The husband remained in the home at AA Street, Suburb BB and the wife resumed living in the home at Suburb C property with the parties’ child, Mr Z, who had recently fallen ill, requiring emergency surgery. 

27. Following separation the parties began seeing separate psychologists.

28. It is not possible to reconcile the evidence of the parties about the wife ceasing to work in the business.

The husband’s evidence about the period after separation

1. The husband says that the wife resigned from the business on 21 December 2018.  The husband says that on numerous occasions between 3 December 2018 and 21 December 2018 he met with the wife and the wife’s sister in the office boardroom and the wife said to him words to the effect of:  “I will be finishing on the 21^st”.

2. It is the husband’s case that on 21 December 2018 the wife attended at the office, packed her belongings and left the details of her bank account login and password together with the husband’s bank token.  He says that she did not leave his bank account login and password until his third request for them.  Ms P told the husband that she asked the wife to take the back-up records but was told by the wife that they (presumably company staff and the husband) would need to sort that out themselves as the wife was not coming back.  I do not understand the import of Ms P asking the wife to take back-up records.

3. On 3 January 2019 the husband ceased paying the wife’s fortnightly salary. 

4. In January 2019 the husband divided the balance held in their joint Westpac Bank account.  The wife received $42,572.39 and the husband received $42,630.25. 

5. The husband says that after the wife left the business, he and Ms P worked together to reconcile the accounts, to operate online banking and attend to administrative tasks that the wife had previously undertaken.

6. The husband says that he and Ms P found a number of unauthorised transactions for which the wife had been responsible.  The husband says that the following were examples of those transactions:

   (a)on 10 April 2017, a cash withdrawal of $7,000 from D Pty Ltd;

   (b)on 7 December 2017, a transaction of $5,000 from U Pty Ltd to Mr Y;

   (c)on 11 December 2017, a withdrawal of $7,000 from D Pty Ltd;

   (d)on 12 February 2018, a withdrawal of $3,000 from D Pty Ltd;

   (e)on 16 May 2018, a cash withdrawal of $7,000 from D Pty Ltd;

   (f)on 14 November 2018, a withdrawal of $4,850 from D Pty Ltd;

   (g)on 13 December 2018, a payment to Apple for Mr Y of $1,895.30 from D Pty Ltd;

   (h)on 17 December 2018, a withdrawal of $4,280 from D Pty Ltd; and

   (i)on 21 December 2018, a withdrawal of $1,095 from D Pty Ltd.

7. It is the husband’s evidence that after the wife left the business, she changed the passwords on several accounts; continued to use the business credit card for personal transactions; changed the passwords on the fuel cards; continued to access the business email account and was sending business information from the business email account to her personal email account.  The husband said that the wife hired a truck for her personal use in January 2019 and billed the hire to D Pty Ltd.  She continued to use the company fuel card.  The husband also notes that the wife had the use of the company motor vehicle 1 which does not require petrol.  In August 2019 the wife used the company account to purchase a ride on mower for $27,845.  The husband contends that the wife already had two ride on mowers and in any event was not authorised to charge the purchase to D Pty Ltd.  On 16 October 2019 the wife charged a $110 car wash for the motor vehicle 1 to the company account.

8. Notwithstanding the wife’s contention to the contrary, the husband asserts that from July 2019 until 15 October 2019 the wife was living away from the Suburb C property.  He has accessed telephone records, seeking to demonstrate that the wife was regularly making or taking calls while away from Suburb C at times that strongly suggested or indicated that she was not living there.  There was no cross-examination or opportunity for objective testing of the parties’ evidence.  No findings are available on this issue.

9. On 23 October 2019 the husband filed a Response to the wife’s Initiating Application.

10. On 25 October 2019 Mr X swore an affidavit on behalf of the husband.  He gave evidence that he does not plan to move into the property at V Street, Suburb W.

The wife’s evidence about the period after separation

1. On 11 December 2018 the wife prepared an agenda for a meeting with the husband, the wife’s sister and Mr X.  The wife says that she proposed that she continue to pay suppliers and do the payroll for the business and that she return to work in mid-January 2019.  From 15 to 21 December 2018 the parties had about three meetings with the wife’s sister and Mr X.  During these meetings, the wife said that she was prepared to work from home.  No agreement was reached.

2. On 3 January 2019 the husband ceased paying the wife’s fortnightly salary. 

3. On 8 January 2019 the wife was told by her sister that the husband had called and said that it was in the wife’s best interests not to come to work on Monday (14 January 2019) and that if she did, two office staff and Mr X would leave.

4. On 12 January 2019 the husband telephoned the wife.  The wife offered to teach her role to staff members from home.  She says that the husband replied “I’ve replaced you.  It’s going to be hard, but I’ll manage.”

5. The wife says that on 14 January 2019 the husband terminated her employment when she sought to return to work following the Christmas holidays. 

6. In January 2019 the wife’s lawyer received correspondence from the husband’s lawyers, asserting that the wife had resigned from her position in the business and had no right to access the company’s information as she was no longer an employee.

7. On 31 January 2019 the husband locked the wife out of the business email, files and the Westpac and K Bank accounts.

8. The wife responded through her solicitors stating that she did not resign from the company and intended to continue her role as director until the parties have finalised their property settlement.  She also requested that the husband reinstate her access to company accounts.

9. The husband locked the wife out of the internet banking relating to U Pty Ltd.

10. In February 2019 the husband increased his salary from the business to about $180,000 gross per annum. 

11. On 7 February 2019 the wife’s lawyer wrote to the husband’s lawyers requesting his financial disclosure documents. 

12. On 13 February 2019 the husband contacted the wife’s psychologist requesting that the psychologist see the parties together.  The psychologist advised that it was not appropriate.

13. In February 2019 the parties received $133,761.32 from their term deposit.  The husband told the wife that they would each receive $100,000 plus half of the interest.  The balance was reinvested.

14. In February 2019 the husband attended the Suburb C property without informing the wife, notwithstanding an arrangement that they would not attend at each other’s property.

15. The wife instructed her lawyer to write to the husband’s lawyer about the events on 20 February 2019.

16. On 21 March 2019 the wife’s lawyer received correspondence from the husband’s lawyer asserting that he needs to attend the Suburb C property because there is a workshop located on the property that is utilised by the business, and because Mr X and his then fiancée, also resided at Suburb C in a separate granny flat. 

17. In March the wife sent documents to the husband to complete and lodge at the bank to reinstate her online access to company banking accounts.

18. The wife says that in March 2019 she noticed various transactions from the D Pty Ltd account: …29, which caused her concern.

19. In March 2019 Mr Y moved into the main house at the Suburb C property.  

20. In March 2019 the husband’s lawyer requested that the wife either return the motor vehicle 1 or have it transferred into the husband’s name.

21. In April 2019 the husband contacted the wife to inform her that her family could not stay at the Suburb C property for Mr X’s wedding, and that they could not attend the property at all.

22. The wife’s lawyer wrote to the husband’s lawyer and requested that the husband provide the wife with 24 hours’ notice of his intention in respect of attending the Suburb C property.  The husband began calling the wife incessantly and the wife blocked his calls.

23. Mr X was married in 2019.

24. On 18 April 2019 the husband attempted to restrict the wife’s parents from visiting the Suburb C property. 

25. On 18 May 2019 the wife’s requested that the husband:

    ·complete and lodge the documents to reinstate the wife’s bank access;

    ·an urgent explanation with regard to the concerning transaction in March 2019 be given;

    ·reimburse the trust unit for his personal transaction in April; and

    ·produce his financial disclosure documents requested on 7 February 2019.

26. There was no response.

27. In May 2019 the parties each received $500,000 from the term deposit.  The wife repaid her parents for funds she says she borrowed from them.

28. The wife’s sister resigned from D Pty Ltd.  She contends that she resigned as a result of intimidation and harassment from the husband.

29. In June 2019 the husband began tracking the wife’s whereabouts through the GPS built into the motor vehicle 1.

30. On 20 June 2019 the wife’s lawyer wrote to the husband’s lawyer among other things to propose that the workshop for the business be relocated to Suburb BB where the husband resides.  The husband refused.  The wife’s lawyer again requested that the husband give financial disclosure. 

31. In June 2019 the wife’s brother and sister told her:  “Mr Aitken has told us that he has had a private investigator following you for the last 4-6 weeks and the motor vehicle 1 was very helpful.”

32. In June 2019 Mr X and the wife’s sister had a conversation during which Mr X said that he would like to move into the property at V Street, Suburb W with his wife and during the conversation they agreed that the wife’s sister and her son would cease residing in the granny flat at V Street, Suburb W and would reside in the home at Suburb C.  The effect of Mr X’s evidence is that he lied to the wife’s sister about wanting to move into the Suburb W property.  It is his evidence that he wanted her to move out of Suburb W because she was acting as a spy for her sister, the wife (his mother).

33. In July 2019 the wife’s cousin, Mr FF, told her “Mr Aitken has told me that he has tracked you through the phone and tolls.  He was questioning what you were doing.”

34. The husband asserts that from July 2019 until 15 October 2019 the wife was living away from the Suburb C property.  It may be that the assertion is based on the husband’s knowledge about the location of the motor vehicle 1.  The wife contends that she was not using the motor vehicle 1 at that time because the husband was tracking it.

1. On 20 July 2019 the husband removed items of machinery from the Suburb C property while the wife was away and without her knowledge or consent.

2. On 24 July 2019 the wife’s lawyer sent a follow up letter regarding the husband’s financial disclosure documents.

3. The wife’s sister and Mr X had a telephone conversation during which Mr X said that he and his wife would like to move into the V Street, Suburb W property and they were thinking of renovating the house before they moved in.  He said that they would like to renovate the kitchen and also the bathroom and it was agreed that the wife’s sister and her son could continue to reside in the property until the wife’s sister was able to locate alternative accommodation.

4. On 1 August 2019 the wife commenced these proceedings.

5. On 10 August 2019 the wife’s sister and Mr X exchanged text messages during which Mr X again said that he and his wife were looking to move into the V Street, Suburb W property.  The wife’s sister said that she was still trying to find a cheap place to rent and that she would be out by the middle of September.  Mr X said that September was too late and that he needed to move in by 24 August 2019.  It is the evidence of Mr X that he lied to the wife’s sister about his intention to move into the Suburb W property.

6. The wife’s sister moved out of the granny flat at the V Street, Suburb W property and she and her son moved in with the wife at the Suburb C property on 18 August 2019.

7. On 9 October 2019 the NSW Police were called to Suburb C and officers spoke to the husband.

8. On 29 October 2019 the wife sent an email to the husband and Mr GG at Westpac Bank and confirmed the wife’s instructions to transfer $2,000,000 from the D Pty Ltd Cash Reserve Bonus Account …42 to the D Pty Ltd Term Deposit Account …11.

9. Mr GG sent an email to the husband and the wife to confirm that he would prepare the authority to transfer the funds in accordance with the wife’s instructions.

10. At some point before 22 October 2019 the husband sold the motor vehicle 2 for $25,000[2].  On 30 October 2019 the wife attended CC Pty Ltd at Suburb DD where she was informed that the motor vehicle 2 had been sold.  Nevertheless, she observed the vehicle parked in the same location where it had been stored for the entire time since it was purchased by the parties.  Another employee of CC Pty Ltd told her that the vehicle “is gone”. 

    [2] Paragraph 59 of the husband’s Financial Statement sworn 22 October 2019.

11. On 1 November 2019 the wife had a telephone conversation with Mr GG who said that the husband would not be transferring $2,000,000 into the term deposit and was considering moving the funds to K Bank.  On 4 November 2019 the wife asked Mr GG to confirm in writing what the husband had said.  Mr GG sent an email to the husband and the wife and said that he had not received the husband’s instructions and that the term deposit had been extended for a further period of seven days to allow the husband time to confirm his position.

12. The wife contends that since separation there had been numerous transactions made from the Unit Trust Accounts and the Advance Pallet Trading Accounts which caused her concern given, inter alia, that no explanation has been provided to her, for the payments.

13. D Pty Ltd was recently approached by the supply-chain company, Q Company, seeking storage space for equipment from January 2020 to September 2020.  The husband proposes that the equipment be stored at the Suburb C property.  The wife opposes that course.

14. The parties have agreed on, and instructions have been given to single expert valuers, to value the real property, the net assets of the Aitken Unit Trust and the shares in D Pty Ltd, U Pty Ltd and Aitken Pty Ltd.  The plant and equipment and equipment will have to be valued.

The Relevant Legal Principles

1. In respect of injunctions, s 114 of the Family Law Act 1975 (Cth) (“the Act”) provides:

   (1)  In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

   (a)  an injunction for the personal protection of a party to the marriage;

   (b)  an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

   (c)  an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

   (d)  an injunction for the protection of the marital relationship;

   (e)  an injunction in relation to the property of a party to the marriage; or

   (f)  an injunction relating to the use or occupancy of the matrimonial home.

   (2A)  In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of  de facto financial cause in subsection 4(1)) the court may:

   (a)  make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and

   (b)  if it makes an order or grants an injunction under paragraph (a)--make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:

   (i)  that residence; or

(ii)  a specified area in which that residence is situated; and

(c)  make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.

Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.

Note 1:       This subsection does not apply to proceedings referred to in paragraph (g) of the definition of  de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition.

Note 2:       The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.

(3)  A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

(4)  If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt‘s creditors.

(5)  Subsection (4) does not limit subsection (3).

(6)  If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement.

(7)  Subsection (6) does not limit subsection (3).

Injunctions

Injunctions in respect of the Company

1. The wife seeks to be restored to a position in the day to day management of D Pty Ltd and of the associated companies and that her access to company records and accounts be restored.  The husband seeks that the wife be removed as a director of D Pty Ltd and that he have sole responsibility for running the business on the basis that he provide relevant information to the wife.

2. There is a limit to the community interest in saving the parties from themselves.  If neither party wanted to continue to operate the business then the solution to the current problem is obvious.  The parties could make arrangements to sell the business as a going concern or to liquidate it.  However, I understand from the final orders sought by them that the husband wishes to retain the business and the wife does not.  As I see it, there are only two choices available to the parties and to the Court.  In the short term the husband could continue with the day to day running of the business and hopefully that would see the parties through until they are able to disentangle their financial affairs.  Of course he would need to keep the wife informed about his running of the business.  If the parties do not wish to wind the company up or liquidate it, the only viable alternative would involve a level of independent management for a period, whether by appointing a receiver or by some other mechanism. 

3. The sorry chronology of the last two years is sufficient to demonstrate why the parties cannot resume working together.  Each of them alleges that the other is responsible for unacceptable behaviour, some of which would amount to criminal behaviour such as bullying, intimidation, stalking and fraud.  Each accuses the other of the misappropriation of company funds and of causing financial harm to the business.  They each allege that the other is seeking to prevent there being a proper settlement of property.  The staff of the company and businesses retained to do work for the company and for the parties have become embroiled in the parties’ dispute as have the extended families and some company clients.  Sadly, at least one of the parties’ children has also been caught up in the conflict.  No doubt, each of the boys is very aware of the situation between the parents.

4. The wife alleges that the husband is taking steps that are inconsistent with his obligations as a director of the company or that are at least, inimical to the shared interest of the parties in maximising their wealth.  That said, despite the wording used by an earlier Full Court[3] when dealing with injunctions for the preservation of property, the Full Court[4] has made plain that in applying s 114(3), a successful applicant for an injunction is not required to find evidence of any intention by one party to dispose of any assets pursuant to any scheme to defeat any judgment which the other party might obtain in the substantive proceedings”. As set out in s 114(3), the Court:

   ...may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

   [3]In the Marriage of Waugh  (2000) FLC 93-052 at 87,810.

   [4]Mullen& De Bry (2006) FLC 93-293.

5. Of the parties’ proposals, only the proposal of the husband is practicable.  Even then, the parties have amply demonstrated that they do not trust each other and the allegations of serious wrong-doing persist.  If the husband is likely to use his control of the business to the disadvantage of the wife then the better course would be to appoint an administrator.  That will be expensive but will ensure that there is an independent manager who will not disadvantage one of the parties over the other and that there is a reliable record kept of the management of the business.  Importantly, neither party has sought such an order and given the opportunity afforded by the wife’s application to re-open her case, I put the parties on notice that I was nevertheless considering such an approach.  The wife’s counsel said that his client was planning to make an application for the appointment of an administrator.  After foreshadowing what I had in mind I made orders to facilitate the wife making an election as to the appropriate forum in which to seek the appointment of an administrator.  If she seeks to make that application in this Court, that issue will come back here in early 2020.

Exclusive occupation of Suburb C

1. Each of the parties seeks the exclusive occupation of Suburb C.  The question is whether the parties can establish that it is just or convenient to make the orders they seek.

2. There is no doubt that the parties could not reasonably be expected to share the occupation of the former matrimonial home at Suburb C.  That is one of the few things about which the parties agree.  As I will briefly discuss below, in my view there is no logical reason why the parties could not make some shared use of the Suburb C property but they have conducted themselves in a way that has made even that impracticable.

3. The wife currently resides in the main house on the property, having returned to live there at the time of the parties’ final separation.  At that time the husband remained living at AA Street, Suburb BB.  The wife seeks to maintain her residence at the property and to exclude the husband from the property.  The husband seeks orders that would have the wife (and presumably, the wife’s sister) removed from the property and thereafter required to remain away therefrom.

4. Each of the parties says that they want to retain Suburb C at the conclusion of the proceedings. 

5. Notwithstanding that the parties are unlikely to ever live together again, it is an important step to remove someone from a residence they own.  The justifications claimed by each of the parties in support of their application are largely contestable and on an interim basis, I am not in a position to make the findings of fact required to satisfactorily resolve most of those matters. 

6. The circumstances at the Suburb C property described by the parties and others are farcical but nevertheless very unpleasant, involving cameras, chains, locks and at least one attendance by police.  The parties’ applications are “all or nothing”.  That is to say neither of the parties can contemplate any level of shared usage of the property.

7. The property is an outer urban block comprising a large open street frontage with the former matrimonial home set well back on the front section of the property.  In the middle of the property, behind the main home but obscured from it, is what is described as a granny flat which is currently occupied by Mr X and his family.  Neither of the parties seeks to dislodge Mr X and his family from the granny flat.  Behind the granny flat there is an area comprising a large paved open section and a large work shed.  In addition to what is stored in the shed, some machinery and machinery parts are also located on the rear section of the property. 

8. It is an agreed fact that the parties have a very poor and highly conflictive relationship. 

9. The arguments in the husband’s case for exclusive occupation include:

   Storage of equipment. 

   ·A significant element of the husband’s case is that something like $350,000 will be lost to the business if Suburb C cannot be used to store equipment over the period January 2020 to September 2020 for Q Company which is one of D Pty Ltd’s most important clients.  The husband contends that the equipment can only be stored at Suburb C if he occupies the property.

   ·The wife responds to the effect that she does not agree to the storage of equipment on the property.  In any event she notes that such a use is not permitted by the current zoning of the property.  In turn, the husband observes that the business has made similar use of the Suburb C property in the past, notwithstanding the zoning.  The wife responds that a failure to adhere to council zoning would void the insurance on the property. 

   ·And so on. 

   Discussion

   ·Storing equipment per se is not a matter which excites the requirement for an injunction.  However, it is a matter that is said to be relevant to the respective applications for exclusive occupation.

   ·Such is the level of antagonism demonstrated in the communication between the parties and their respective supporters that it is likely that their respective positions have become polarised beyond logic or reason.  If it is viable, it must be in the interests of the parties to take advantage of the Q Company proposal.  It seems to be common ground that Suburb C is the only D Pty Ltd site that meets the requirements specified by Q Company.  For example, the wife apparently concedes that her suggestion of the Suburb H site would only fit the criteria nominated by Q Company if Q Company were to agree to storage on an unsealed surface[5].

   [5] Paragraph 12 of the wife’s affidavit filed 7 November 2019.

   ·On the other hand it seems to be agreed that Suburb C does not have the appropriate zoning or permission for the use proposed by Q Company and as a result, that the property would be uninsured if that use was taken up.  Of course, the husband does not say that he intends to offer the site to Q Company without those requirements being addressed.  Indeed, he says that if he is required to obtain permission, he will submit a Development Application[6].  Unless I have mistaken the husband’s position, it is my understanding that he only contemplates providing Suburb C for storing the Q Company equipment if the wife is excluded from the property

   [6] Paragraph 52 of the husband’s affidavit filed 13 November 2019.

   ·As I attempted to impress on the parties during the hearings associated with these proceedings, it is not the Court’s role, nor is it possible, for the Court to save the parties from the financial consequences of their conduct.  Nevertheless and notwithstanding the parties’ polarised cases and their obdurate attitudes, it would be my recommendation to them that they attempt to facilitate the Q Company proposal, if it becomes achievable.  For example, the Suburb C property is a large block and there is no necessary reason why the Q Company proposal requires the exclusion of the wife from the former matrimonial home.  Presumably as they did when the parties previously used Suburb C for the same purpose, the trucks delivering and collecting equipment could drive up the road that runs from the street front to the back of the property where the loading and unloading would take place.  It is my understanding that those activities would be hidden from the occupants of the former matrimonial home on the front of the block. 

   ·However, there is no immediate issue because the parties are apparently not permitted to store equipment at Suburb C and may never be given that permission.

   Balance of convenience 

   ·The former matrimonial home is occupied by the wife, her sister, her sister’s child and the parties’ sons, Mr Y and Mr Z.  It is the husband’s case that he would not require his sons to vacate the former matrimonial home.  He only seeks the removal of the wife and presumably of his sister in law and her child.  The husband says that his parents, who occupy a property that adjoins the former matrimonial home, cannot co-exist as neighbours of the wife and despite their advanced ages, are contemplating moving away. 

   ·There was an instance where Mr X’s wife was locked in the property because the wife insisted that there be only one key to the padlock on the main gate.

   ·It is the husband’s evidence that he needs to have access to Suburb C in order to maintain equipment and machinery used by D Pty Ltd.  He says that they used machinery stored on the back area of the site and the work shed is used from time to time to repair and maintain similar equipment.  The wife and Mr N dispute that evidence.  For example, Mr N says that in the 12 years he was employed by D Pty Ltd he can recall less than 12 occasions when the husband was required to attend at Suburb C to access a machine, tool or part.  It is his evidence that all of the necessary parts, tools and machinery were stored on-site at Suburb H.[7]

   ·The husband proposes that the wife move into another of the parties’ properties or that she receive $3.5 million with which to re-house herself.  The wife says that the alternate property would not be geographically convenient for her and she does not agree to the remainder of the husband’s proposal.  The wife gives evidence about the convenience of the Suburb C property, not just for Mr Y and Mr Z but for her medical services.

   ·Thankfully, the accommodation and feelings of Mr Y, Mr Z, the husband’s parents and the wife’s sister are not matters about which I have responsibility.  As I understand the evidence of Mr X, the presence of the wife’s sister in the property is apparently an unintended consequence of Mr X’s actions in causing her to leave the Suburb W property.  However, neither she nor the husband’s parents are parties to the proceedings.

   ·In my view it is not clear that it would be just or convenient to remove the wife from the property and to give exclusive occupation to the husband.  As I have noted neither of the parties has asked that there be any level of co-operative sharing of the Suburb C property.  It follows that the wife may remain and the husband will be restrained from attending at the property until further order, unless the parties otherwise agree in writing.

Orders in relation to property outgoings

[7] Paragraph 10 of the affidavit of Mr N filed 7 November 2019

1. Each of the parties seeks orders about specified outgoings for the Suburb C and Suburb F properties.  Presumably those orders are sought by way of conditions for the proposed orders for exclusive occupation or by way of mandatory injunction.  The parties each refer to the Council and water rates, insurances, land tax and water access licences in respect of each property.  The wife seeks that the husband be responsible for those outgoings.  The husband agrees that he should be responsible for those outgoings but only on and from the date the wife vacates the Suburb C property and commences to occupy the Suburb F property, respectively.

2. The parties have legal obligations in respect of the outgoings on the properties.  On the basis of the parties’ applications there seems to be a common position about the husband being responsible for the outgoings and it may be that there is no real dispute about the matter.  In any event, in my view it is not necessary to make an order about those outgoings, anymore than it is necessary to order that the parties pay their electricity bills, income tax or credit card debts.  The parties and their associated companies are at liberty to pay their debts or not.  I will make no orders about the specified outgoings.

Spousal Maintenance

1. In respect of spousal maintenance ss 72,74 and 75 of the Act provide:

FAMILY LAW ACT 1975 - SECT 72

Right of spouse to maintenance

(1)  A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a)  by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b)  by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)  for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

(2)  The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

FAMILY LAW ACT 1975 - SECT 74

Power of court in spousal maintenance proceedings

(1)  In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

(2)  If:

(a)  an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and

(b)  either of the following subparagraphs apply to a party to the marriage:

(i)  when the application was made, the party was a bankrupt;

(ii)  after the application was made but before the proceedings are finally determined, the party became a bankrupt; and

(c)  the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and

(d)  the court is satisfied that the interests of the bankrupt‘s creditors may be affected by the making of an order under this section in the proceedings;

the court must join the bankruptcy trustee as a party to the proceedings.

(3)  If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.

(4)  The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.

(5)  If:

(a)  an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and

(b)  either of the following subparagraphs apply to a party to the marriage (the debtor party ):

(i)  when the application was made, the party was a debtor subject to a personal insolvency agreement; or

(ii)  after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and

(c)  the trustee of the agreement applies to the court to be joined as a party to the proceedings; and

(d)  the court is satisfied that the interests of the debtor party‘s creditors may be affected by the making of an order under this section in the proceedings;

the court must join the trustee of the agreement as a party to the proceedings.

(6)  If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.

(7)  The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.

(8)  For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:

(a)  the application is withdrawn or dismissed; or

(b)  an order (other than an interim order) is made as a result of the application.

FAMILY LAW ACT 1975 - SECT 75

Matters to be taken into consideration in relation to spousal maintenance

(1)  In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

(2)  The matters to be so taken into account are:

(a)  the age and state of health of each of the parties; and

(b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c)  whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d)  commitments of each of the parties that are necessary to enable the party to support:

(i)  himself or herself; and

(ii)  a child or another person that the party has a duty to maintain; and

(e)  the responsibilities of either party to support any other person; and

(f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)  any law of the Commonwealth, of a State or Territory or of another country; or

(ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

(j)  the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l)  the need to protect a party who wishes to continue that party‘s role as a parent; and

(m)  if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

(n)  the terms of any order made or proposed to be made under section 79 in relation to:

(i)  the property of the parties; or

(ii)  vested bankruptcy property in relation to a bankrupt party; and

(naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i)  a party to the marriage; or

(ii)  a person who is a party to a de facto relationship with a party to the marriage; or

(iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na)  any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p)   the terms of any financial agreement that is binding on the parties to the marriage; and

(q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

(3)  In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

(4)  In this section:

“party” means a party to the marriage concerned.

1. The effect of s 74 is that spousal maintenance is a remedy available between parties to a marriage, whether the marriage is on foot or not.  Where one party can establish that he or she cannot adequately support themselves from their own resources for any adequate reason, the other party can be called on to provide support to a reasonable extent.  The matters relevant to those considerations are set out in s 75(2).

The Exercise of Discretion

1. The wife has about $500,000 in the bank.  She cannot establish that she is unable to adequately support herself from her own resources.  In any event, the source of support she nominates is jointly owned by her.  Her application must fail.

2. In the circumstances I do not propose to order spousal maintenance.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 December 2019.

Associate: 

Date:  23 December 2019