Baney and Baney

[2009] FamCA 643

FAMILY COURT OF AUSTRALIA

BANEY & BANEY [2009] FamCA 643

FAMILY LAW – PROPERTY – Interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Baney

RESPONDENT: Mr Baney

FILE NUMBER: SYF 2852 of 2004

DATE DELIVERED: 11 June 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 11 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Dhaliwal Solicitors

SOLICITOR FOR THE RESPONDENT: John Carmody & Co

Orders

1. Orders are made in terms of the document titled “Proposed Orders Sought With Amendments to Orders of 20 May 2009” marked Exhibit 1, save for paragraph 2.2(c) which issue is reserved to the adjourned date.

2. The proceedings are adjourned to 10:00 am on 26 June 2009 before Judicial Registrar Loughnan.

3. Any further documents on which either party seeks to rely are to be filed and served not later than 23 June 2009.

4. The husband is restrained from taking any step whether by instructions to the relevant managing agent or otherwise inconsistent with complete compliance with the spirit of the orders made today.

5. Permission is given to the wife in relation to the D Farm to commission a locksmith to change any lock to which she does not have access with keys in her current possession to be keyed alike with other locks on the property, and if not practicable to have a fresh lock installed and in that event that she provide a duplicate of any relevant key to the husband as soon as practicable.

6. That the husband pay to the solicitor for the wife within seven (7) days a sum of $7,000 AND it is noted that the character of that payment is a matter for the Trial Judge at the conclusion of these proceedings.

7. Leave to the parties in relation to any subpoenas they issue to have those subpoenas, provided they are in accordance with the Rules, returnable at 11:00 am on 23 June 2009 before Deputy Registrar Chayna.

8. Leave is granted to the parties to inspect documents produced on subpoena by T Company.

9. The costs of the parties of today are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2852 of 2004

MS BANEY

Applicant

And

MR BANEY

Respondent

REASONS FOR JUDGMENT

1. These are proceedings that have been in the court on a number of occasions.  I made some orders on 20 May.  I have been asked to relist the matter on short notice.  There was an application made by the solicitors for the husband in relation to what was said to be a slip rule problem.  It is not a slip rule problem.  An order was made in October 2008 which were to bring into being a fund of $80,000 for preliminary costs.  Some orders were made in April of this year to deal with that issue.  Those orders provided that the parties join in a borrowing of $67,000.  I do not remember, to be truthful, why it was $67,000 and not $80,000.  But we do not have to worry about that because the order was not complied with.

2. On 20 May I was dealing with an application for a dollar for dollar order. I decided not to make that order because there was a mechanism in place, albeit belated, albeit a compromised position, for identifying a fund, that would ultimately result in a payment. That mechanism was found in the orders of 1 April.

3. At first blush that suggests that the order of 20 May (I think 2(f)) dealing with a payment to the wife of $80,000 was in error. The fact is however, that the order establishing the default mechanism, had not been complied with. There remains the original obligation for pay $80,000 and notwithstanding the orders of 1 April, that obligation has yet to be satisfied. No harm is done by that aspect of the orders of 20 May. They will cause compliance with the order of 22 October 2008 in relation to $80,000. I do not think that is a slip rule problem. 

4. Also before the Court today is an issue about access to a property. I understand that both parties wanted changes to orders I made in 2006 in relation to the use of a farm. The husband wanted the wife's access to cease because she had taken some self-help in enforcing orders for financial support by trying to sell cattle.  The husband asserted that that was against veterinary advice in relation to a particular condition the cattle suffered and that mixing those cattle with uninfected cattle was a problem.  He said he had given the wife proper notice of that veterinary advice and she had acted inconsistently with that advice. The wife belatedly also applied to change her access to the farm. At the end of the day, the parties could not agree about anything and I said to them that I was not going to make any changes to the orders that I made in 2006. A sort of ‘plague pox on both your houses’ attitude. I simply could not make the necessary findings to grant either application. The parties gave conflicting evidence about the extent and dissemination of the veterinary advice and so on. 

5. Thus no changes made to the original orders. I was asked by Mr Batey for the wife to require that the husband provide the wife with all keys necessary for her to access the property. Being too smart by half, I expanded that to an order that the husband forthwith do all things necessary to ensure compliance with that order pending further order. I thought that was a nice way of covering keys and everything else. It turns out, to my amazement, that two grown people are willing to come to court, one saying that one key fits all relevant locks on the property, and the other saying that is not so. I am told that the husband says the wife’s key will open every relevant lock on the property and that he would go on oath today and say she has used that key in the past to open all relevant locks on the property. Indeed he would say that the doors had been left ajar when he last saw them. I have indicated to the parties that I will order that in the event that the wife finds that the key she has been given by the husband does not provide that access, she may commission somebody to either key the recalcitrant locks alike with the remaining locks or to install new locks and provide copies of any new key to the husband.

6. Finally, there is an issue about giving effect to another of the orders made on 22 October 2008 whereby the wife was to receive a stream of income from the rental paid on a business premises. There is no real complaint about the proposed except in relation to what is said to be arrears of $7687.94 under the existing orders. The wife says she has not been paid that sum. It is the husband's case that the order has been somehow satisfied in any event.

7. Mr Stubbs on behalf of the husband proposes that the parties jointly give direction to the managing agent to make certain payments. There is a problem with that in that the wife has no authority to give such a direction. I could give her that authority. I do not think that is a practical proposal. If I am to empower the wife, why not totally empower her in relation to this obligation? I do not propose to do that. The husband has the obligation in relation to these payments. It is suggested that he has said something or given the agent permission to do something inconsistent with the spirit of the orders. I am going to formally restraining him from saying anything, communicating to the agent in any way, inconsistent with the intent of the orders that I make today. 

8. The matter will go over to 26 June when Mr Foster will be available for the husband and some related issues will be determined.

9. I understand that the parties are back before the docket Registrar on 23 June.  I am not sure whether the matter is going to be squeezed into the blitz in September. Hopefully the matter will be included, if it is ready, and that will be the focus of the appointment at 11 am on 23 June 2009 before Registrar Chayna. I strongly urge the parties lawyers to do everything they can to get the matter ready so as to stop the interlocutory litigation. The only hope is that the parties' finances be disentangled.  That needs to happen sooner rather than later.  The interim and interlocutory proceedings have been protracted and wasteful. The taxpayer would be horrified, apart from anything else. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  24 July 2009