Allan & Allan and Ors

[2008] FamCA 871

FAMILY COURT OF AUSTRALIA

ALLAN & ALLAN AND ORS [2008] FamCA 871

FAMILY LAW – INTERIM FINANCIAL – payment of credit cards

FAMILY LAW – MAINTENANCE – interim spousal maintenance

FAMILY LAW – INJUNCTIONS – restraint from assigning sum of money to children; restraint against removing trustee / appointing/substituting alternate trustee; from selling, assigning transferring or encumbering or dealing in anyway with property; from destroying, moving or dealing in any way with records

FAMILY LAW – PROPERTY – exclusive use of motor vehicle

Family Law Act 1975 (Cth)

APPLICANT: Mrs Allan

RESPONDENT: Mr Allan

SECOND RESPONDENT: W Nominees Pty Ltd

THIRD RESPONDENT: Ms E Allan

FOURTH  RESPONDENT: Ms C Allan

FIFTH  RESPONDENT: Mr L Allan

SIXTH  RESPONDENT: Ms H Allan

FILE NUMBER: SYC 3842 of 2008

DATE DELIVERED: 8 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 8 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR LLOYD

SOLICITOR FOR THE APPLICANT: Paul & Paul Lawyers

COUNSEL FOR THE RESPONDENT: MS REES

SOLICITOR FOR THE RESPONDENT: John De Mestre & Co

Orders

1. Orders are made in terms of paragraphs 1.4 and 1.5 of the Further Amended Application in a Case as set out hereunder:

   “1.4Within 7 days of the date of these Orders that the Respondent Husband do pay the outstanding balance of the Wife’s Visa Card being an amount of not less than $43,000 not more than $49,000 and as and from 1 October 2008 the husband pay to the credit of the Wife’s Visa Card a sum of not less than $20,000 per month or such amount as may be necessary to reduce the balance owing to Nil, but being no more than $40,000 per month.

   1.5That the Respondent Husband do pay to the Applicant Wife by way of spouse maintenance the sum of $10,000.00 per week by depositing same to the credit of the wife's nominated Bank Account less any monies paid by the Husband pursuant to Order 1.4.”

2. That within six weeks from today’s date the husband cause discovery to be given of the documents in the categories set out in paragraph 1.9 of the Further Amended Application in a Case in the categories of documents set out in the letter from the solicitor for the wife to the solicitor for the husband dated 1 September 2008 and in orders No 35 and 36 contained in the orders made on 28 August 2008.

IT IS NOTED

1. That the Application of the wife for orders in terms of paragraphs 1.7 and 1.8 of the Further Amended Application in a Case are addressed by the Undertakings given by the husband on 28 August 2008 and that those Undertakings continue.

IT IS FURTHER ORDERED

1. By consent orders are made in terms of a document titled “Exhibit A”, as set out hereunder, AND THE COURT NOTED it is the husband’s contention that nothing further needs to be done to perfect the disposition referred to in that order:

   “That the Husband and anyone acting on his behalf be restrained from doing any act or thing or executing any document or instrument to implement perfect or complete the proposed assignment of $80 million to the children as proposed in his memorandum dated 1 July 2006.”

2. By consent orders are made in terms of paragraphs 1.6, 3, 4, 5, 10, 12, and 17 of the said Application as set out hereunder:

   1.6That the husband be restrained and is hereby restrained from doing any act in his capacity as appointor of the Allan Family Trust to cause the company, from being removed as trustee and be restrained from appointing any substitute or alternate trustee.

   3.That the Applicant wife do continue to have the exclusive use of the BMW motor vehicle registration number … when in Sydney and/or the Snowy Mountains.

   4.That the respondent Husband and the company or any person or entity authorised by him forthwith be restrained from selling, assigning transferring or encumbering or dealing in anyway with any property whatsoever, not the subject of any other order including but not limited to the other properties without giving to the wife's solicitors 28 days notice in writing of his intention to deal with such property such notice to be accompanied by:

   4.1      A copy of any proposed contract or agreement or other dealing.

   4.2A statement from any mortgagee thereof as to the amount outstanding in respect of any mortgage secure thereon.

   5.In relation to the claims and proceedings involving the Respondent Husband and entities under his control with the State government: K Company: and the claim against an Insurance company in respect of damage at a property, T, in the state of Western Australia, that the Respondent do not settle or compromise such claims or receive any monies on account thereof without depositing such monies to the credit of a trust account with the Respondent's solicitors being a controlled monies account at interest such amounts to remain standing to the credit of the controlled monies account pending further order of the Court.

   10.That until further order the Husband be restrained from destroying, moving or dealing in any way with his records whenever situate relating to any of the collectables acquired by him or any entity under his control ("the records") down to the present time.

   12.That the Respondent Husband do provide the Applicant Wife with a copy of all keys necessary for the purpose of gaining access to R property.

   17.That the Respondent Husband forthwith advise the solicitors for the wife of any notice received by him or the second Respondent which may be given by a mortgagee under Section 57(2)(b) of the Real Property Act (New South Wales) and Section 59 of the Property Law Act 1969 (Western Australia) or other Notice by any mortgagee of the intention of that mortgagee to exercise its rights under any security held.”

3. That the order in terms of paragraph 12 is made on the basis that the wife will not remove any contents from that property save for her personal possessions.

4. Unless the Court otherwise orders, the proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 3 November 2008.

5. The Court requested that the Court Services Manager allocate the proceedings to a Judge for judicial management AND that consideration be given to an early listing date to avoid a series of interlocutory matters being dealt with by different judicial officers.

6. That the third parties be served with all documents affecting them within seven days from today’s date.

7. Leave to any party to restore the proceedings to the list on giving 48 hours’ notice to the Court and to the other parties.

8. Leave is granted to the parties to inspect documents produced on subpoena by Angas Securities Ltd, the ANZ Bank and Mortgage Funds Management and to have photo copy access to the documents produced.

9. The costs of the parties are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3842 of 2008

MRS ALLAN

Applicant

And

MR ALLAN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interlocutory orders in the shadow of proceedings for property settlement.  The matter started in July. 

2. The parties were married in 1967 and separated in June of this year.  I do not know any other background information. A raft of interlocutory orders are sought.  The parties were before the Court on 28 August 2008 and some orders were made by agreement and undertakings were noted.

3. In his latest affidavit the husband referred to a disposition to the parties' adult children. It is the wife's case that she did not know about that disposition. She is not even sure now whether the disposition has occurred. She brought these proceedings by way of an amended application to add, sadly, the parties' children to the litigation and to seek to preserve the asset involved, to stop it passing if it has not passed, to hold it if it has passed, and if there has been such a transaction, that it be set aside under s106B of the Family Law Act.

4. I am told that the parties have reached agreement today in relation to a number of matters and I am told that there is agreement to orders in terms of paras 1.6, 3, 4, 5, 10, 12 - but on the basis of the wife not removing contents from her home except for her personal possessions - and 17. 

5. The matters that are controversial relate to the following categories of relief: spousal maintenance, injunctions in relation to disposition, or dealing with property, and discovery. 

6. Most of those issues have been resolved.  It has been accepted on the basis of things that have been said today that undertakings given by the husband on 28 August 2008 deal with the orders sought in 1.7 and 1.8.  Ultimately there is an issue, I think, about the extent of discovery, but the wife wants compliance with a request for discovery or an order for discovery as set out in 1.9.  She feels as though there has not been compliance with a direction made on 28 August 2008 and there has also been a letter sent on 1 September 2008, seeking discovery. The husband says through his counsel that there can be compliance but there are other calls on the documents which include 35 lever arch volumes, being calls from an accountant or a valuer or some related person. He says that it will take six weeks to provide that discovery and that is what I will order.

7. The only matter of controversy, then, is the claim for spouse maintenance. There has been a discussion today and there remains some doubt in my mind, as to whether this is a claim for maintenance.

8. The parties have significant assets.  The husband's case, I gather, would be that their assets might be worth less than $100 million.  The wife has understood discussions with the husband and certain written representations to mean that their assets could have a net value in excess of $400 million, with about $435 million in assets and about $32 million or so in debts.  The husband was heard to say that that would be an ultimately optimistic outcome based on various pieces of litigation all being resolved in favour of the entity associated with him and properties being valued on the basis of ongoing or future developments.

9. It is not necessary or possible for me to determine that issue but that is the context in which the parties are litigating.

10. The wife seeks that her visa card debt be paid out - and I am told it is about $46,000 - and that as and from the 1st of next month the husband cause the balance to be paid, not less than $20,000 and not more than $40,000 a month on that card. 

11. The wife says that she has some income by way of her management of a resort facility, but she says that she applies that income only for the purposes of managing the facility. She says the current balance in the relevant account is $300,000 which is committed as to $230,000. She says that the only overlap between those expenses and her private expenses would be her payment of any amount on her own credit card referable to the expenses associated with the facility.  The husband contends that the wife's income from the facility in one year was over $500,000.  Thus there is an issue between the parties, although I do not know that we are comparing apples with apples.  The wife is saying she has got a certain amount in the account at a particular time; the husband is referring to the total drawings from the account.  They are not necessarily, contradictory statements.

12. The evidence about the wife's expenditure is contained in an annexure to her affidavit.  She puts her monthly estimate at $40,934.77 being a total of expenditure for herself and a small expenditure for others.  I am not sure who the others are, but it is only $300. It is not necessary to go into the detail of it.  They are significant sums.  Western Australia has given us some wonderful case law - Wilson's case and some others - helping us with the particular pressures of wealthy families. 

13. This is not a matter of major moment.  On any view, there is a significant pool of assets.  It is not the case that major damage can be done to the pool of assets by the difference between whatever the husband thinks his wife should be spending and what she proposes to spend. I pointed out the silliness of the arguments in relation to this issue.  If I was to restrain the husband from spending more than $41,000 a month for all purposes then it may be that that would be inconvenient to him.  The parties need to get through this period, and there can be an adjustment later.  At the end of the day, if it turns out that the family fortune has been inappropriately applied by the wife in this period, then that can be adjusted out of her share of the pool of assets. I appreciate there is often no such adjustment, but it is possible

14. So I propose to make an order. In fact the wife is asking for a little less than she says she spends. There is no opportunity to challenge the particular claims today. There is no meaningful opportunity to identify with any certainty, the dispute between what the parties about what money is available to the wife. As I said in the course of submissions, given the way the payments will be made, this may not be spousal maintenance.  Spousal maintenance is a payment made by one party to a marriage to provide support to the other party if that last-mentioned party cannot adequately support himself or herself from his or her own resources. Where such a payment is not simply out of income, there is always a problem about whether the source of the payment was joint assets.  To the extent that the husband uses joint assets to make the payment of $40,000 a month or thereabouts, the wife is in effect paying up to half that amount.

15. I think the tidiest thing is to simply make the order as it is called for, which can be no more than $40,000 a month.  If the visa card bill in a particular month is less than that, then the payment will be less.

16. There is another issue relating to the disposition of assets to the children.  The husband will get some advice about this.  It is certainly possible for children to make a contribution to property. It is possible for there to be an order under s79 in favour of children. What is needed is evidence that the children have contributed the $20 million, or whatever it is, to warrant that disposition.  Now that the parties have separated, one party cannot give joint assets to somebody else without providing notice to the other party.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  29 October 2008