BAULT & BAULT
[2016] FamCA 126
•3 March 2016
FAMILY COURT OF AUSTRALIA
| BAULT & BAULT | [2016] FamCA 126 |
| FAMILY LAW – PROPERTY – Interim distribution – Where the husband owes the wife monies from a District Court civil verdict and there are previous restraints on dealing with superannuation and funds – Where the wife seeks further interim distribution of monies – Dispute about the property pool and contributions on a final basis – Inappropriate to make a further distribution to the wife pending final resolution – Where the payment of such funds may not be capable of reversal – Appropriate for civil verdict monies to be paid from the sale of the home and the restraints on dealings be lifted. FAMILY LAW – PRACTICE AND PROCEDURE – Expedition – Rule 12A – Various factors considered – No relevant circumstance in which the case should be given priority to the possible detriment of other cases. |
| Family Law Act 1975 (Cth) ss 75, 79 Family Law Rules 2004 (Cth) r 12A |
| Harris & Harris (1993) FLC 92-378 |
| APPLICANT: | Ms Bault |
| RESPONDENT: | Mr Bault |
| FILE NUMBER: | PAC | 3333 | of | 2012 |
| DATE DELIVERED: | 3 March 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 12 February 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Shepherds The Family Law Specialists |
| SOLICITOR FOR THE RESPONDENT: | Clinch Long Letherbarrow |
Orders Pending Further Order:
That the husband and wife do all things necessary to cause the proceeds of sale of the home at B Street, Suburb C to be paid in the following manner and priority:
(a) Payment of sale costs including agents commission, auction expenses if any and legal costs;
(b) Payment to the wife, or as she may otherwise direct in writing, the sum of $406,562.80 plus interest accrued thereon;
(c) Payment of the balance then remaining to a controlled interest bearing account in the name of the parties’ solicitors, or otherwise as agreed, in trust for the parties pending further order or agreement in writing between the parties.
That Order 15 made on 18 February 2013 (as to the wife accessing her superannuation entitlements) be discharged to the effect that the wife may draw upon the whole of her superannuation entitlements as she wishes.
That Order 26 made on 18 February 2013 and Order 2 made on 16 September 2013 (as to the husband accessing monies held by his solicitor) be discharged to the effect that the husband may now be paid those funds in their entirety.
That the husband’s application for expedition is dismissed.
That otherwise all pending interim applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bault & Bault has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3333 of 2012
| Ms Bault |
Applicant
And
| Mr Bault |
Respondent
REASONS FOR JUDGMENT
As a consequence of an assault on the wife on 29 August 2012 the husband was charged with attempted murder and eventually pleaded guilty to assault occasioning grievous bodily harm. On 23 April 2014 the husband was sentenced to a period of seven years imprisonment with a non-parole period of three years and six months. The husband presently remains in custody but there are prospects that he may be granted parole.
On 15 December 2015 in the District Court of New South Wales a verdict of $406,562.80 was awarded to the wife in relation to damages for injury suffered by her when assaulted by the husband on 29 August 2012. The husband was also ordered to pay the wife’s costs.
As a consequence of a previous assault on the wife in June 2012 the husband in separate criminal proceedings on 21 August 2012 was convicted of assault on the wife, fined $500, ordered to pay court costs of $83 and directed to enter into a good behaviour bond for a period of 12 months. Further on the same day an Apprehended Domestic Violence Order was made for the protection of the wife.
In the present application the wife seeks orders for the sale of the husband’s Suburb C property with an interim distribution from the proceeds of sale of $1 million to her with the balance of funds to be held pending final resolution of property proceedings.
The husband and wife have agreed on a mechanism for the sale of the property but what remains for determination is what money, if any, should be released from the proceeds of sale to the wife and/or to the husband by way of interim property.
Discussion
The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.
Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
In Strahan (supra), the Full Court said:
132. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth).
It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said (at 79929-79930):
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.
In Strahan (supra), the Full Court said at [132]:
… regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
Both parties in this matter in any event seek that the Court makes adjustive orders.
Context
In support of her application in a case filed on 7 December 2015 the wife relied upon:
a)Her affidavit filed on 7 December 2015; and
b)Her affidavit filed on 10 February 2016.
In support of the interim orders sought by him the husband relied upon his response to the application in a case filed on 10 February 2015 and his affidavit filed on the same day.
The husband seeks in his response seeks orders that in summary provide:
a)For a sale of the Suburb C property;
b)On sale that 50 per cent of the proceeds of sale be paid to the husband and 50 per cent be held in a controlled monies account pending final resolution of property proceedings;
c)That funds presently held in a controlled monies account in the name of J Francis Lawyers pursuant to orders made on 16 September 2013 be paid to the husband;
d)That the husband be restrained from approaching or contacting the wife except through her legal representative;
e)That the wife be restrained from disposing of any of the contents of the Suburb C property prior to written agreement in writing between the parties or further order; and
f)That proceedings as to property be expedited for final hearing.
The husband is presently 80 years of age. The wife is nearly 63 years of age.
The husband and wife married in 1997 at which time cohabitation commenced.
There are no children of the parties’ relationship but the wife has three children from her previous marriage, Mr D, Mr E and Mr F. The children resided with the husband and wife in the Suburb C property from the date of marriage until the date that they variously vacated the property in 1998, 1999 and then 2005.
The husband and wife separated on 25 June 2012 in circumstances where the husband assaulted the wife as referred to above. The wife has remained in occupation of that home over the period since separation. The wife was required pursuant to interim orders that granted her sole use and occupation of the home to maintain the home in a good state of repair and to maintain the gardens and lawns in a neat and tidy presentation.
The parties were divorced on 21 December 2013.
The wife commenced proceedings for property settlement by application filed on 3 August 2012. In her amended application filed on 7 December 2015 the wife seeks orders that:
a)The assets, property, superannuation and financial resources of the parties be divided 50 per cent to the husband and 50 per cent to the wife; and
b)That in addition the husband pay to the wife the verdict and costs outstanding by reason of the judgment of the District Court of New South Wales.
Background
At the commencement of the parties’ cohabitation the husband asserts that he had the following assets:
a)Property at B Street, Suburb C unencumbered;
b)Savings at bank of about $2 million;
c)A motor vehicle; and
d)Contents in his home at Suburb C.
The wife had no assets of any significance.
During the marriage the wife did not work and she received no financial support for her three children that formed part of the parties’ household. All of the living expenses for the parties and the wife’s three children whilst in the household were paid for by the husband.
The husband concedes that during the marriage the wife was primarily responsible for homemaker and domestic duties. The wife’s financial contribution is asserted by her to be an inheritance of about $134,000 in 2005. She gives no evidence as to where or how those funds were applied.
The husband asserts that in about April 2003 he loaned to the wife’s son Mr E $235,000 to facilitate the purchase of a property at G Street, H Town. The loan advance was the whole of the purchase price of the property. The husband says that in consideration of the loan he held the title deeds to the property but subsequent to separation he has been unable to locate those title deeds. Various payments were made by Mr E in reduction of the loan and as at the parties’ separation on 10 July 2012 the husband asserts that the balance outstanding was $165,340.90. That sum together with interest accruing remains outstanding.
In 2009 the husband deposited from his own funds $450,000 to the Bault Superannuation Fund on behalf of the wife. The trustee of that fund is I Pty Ltd. The husband has a nil member balance in this fund. The wife’s benefit had accrued by September 2012 to $514,281.
The husband further asserts that in May 2010 he advanced to Mr F and his wife Mr J $337,028. The purpose of the advance was to discharge the mortgage secured over the borrowers’ property at Suburb K and to facilitate repayments to the husband at a lower rate of interest. As security for the loan the husband held the title deeds for the Suburb K property but has been unable to locate those title deeds post separation. Various payments have been made in reduction of the loan and as at separation the husband asserts the balance outstanding was $300,065 together with interest accrued.
For her part the wife denies the existence of the loans. As a consequence the borrowers have been joined by the husband as parties to the primary proceedings as to property settlement where the husband seeks declarations as to the alleged debts owing to him.
The husband asserts that during the cohabitation he also made other advances to the wife’s children by way of loan or otherwise.
Orders of 13 September 2012 and thereafter
In August 2012 the wife commenced proceedings after she became aware that the husband had withdrawn a total of $771,420 from his bank accounts. He withdrew $300,000 from his Bank of Queensland account in July 2012 and $446,020 from his Suncorp account in the same month. Subsequently, the husband paid into his solicitor’s trust account on 12 November 2012 $599,000 of these funds. The application of the balance of $172,420 remains unclear.
On 13 September 2012 interim orders were made for the wife to have, pending further order, sole occupation of the Suburb C property.
On 21 September 2012 orders were made, inter alia, that the wife be entitled to sell three specified name artist paintings and the husband’s car in her possession and retain the proceeds of sale. There is no evidence that she has done so.
Subsequently orders were made on 18 February 2013, 21 April 2015 and 8 October 2015 permitting release to the parties of funds set out below:
18 February 2013 Wife $200,000 (Superannuation)
Husband $200,000
21 April 2015 Wife $ 60,000
Husband $ 60,000
8 October 2015 Wife $ 60,000
Husband $ 60,000
The wife presently has drawn $30,000 from her superannuation entitlement with the ability to draw a further $170,000 under the interim orders of 18 February 2013.
There is an issue as to the disposition or otherwise of the balance that should otherwise be remaining in the husband’s solicitor’s trust account of about $160,000 whereas the current balance is $71,377.
The asset pool
The husband asserts that the asset pool presently comprises the following:
Husband Suburb C property $2,000,000
Wife Superannuation $ 445,000E
Joint Controlled monies account $ 71,377
Husband Suncorp bank account $ 34,898
Husband Nissan motor vehicle $ 20,000E
Husband Mazda motor vehicle $ 35,000E
Wife Jewellery $ 15,015E
Joint Contents – Suburb C $ 59,574E
Joint Gemstones and coins $ 710E
Husband Solicitor’s trust funds $ 6,323E
Wife Solicitor’s trust funds $ NK
Wife Money at bank $ NK
Husband Loan to Mr E $ 165,341 plus interest
Husband Loan to Mr F and Ms J $ 300,065 plus interest
$3,153,303
It is the husband’s contention that the wife should be entitled to about 15 per cent of the net matrimonial asset pool, that being about $473,000.
The wife has already received cash distributions of $120,000, has significant remaining superannuation entitlements having drawn down previously $30,000 from her superannuation, has liberty to sell paintings and a car and keep the proceeds if she has not already done so.
It is the husband’s position that she has already received or has more than her property entitlement.
The wife’s issues as to the husband’s non-disclosure
The wife asserts that the husband has failed to properly disclose the circumstances relating to:
a)The joint purchase and sale of a home unit Lot 1, Suburb L in 2009 with a capital profit of $35,000;
b)The application of sale funds from the sale of Lot 2, Suburb L purchased by Mr F and his wife in July 2007 asserted by the husband to have been received by him;
c)The disposition or otherwise of the balance of funds in the husband’s solicitor’s trust account;
d)The balance of $172,420 from cash withdrawals of $771,420 by the husband after depositing $599,000 to his solicitor’s trust account; and
e)The financial circumstances of the Bault Family Trust with I Pty Ltd as trustee.
There are significant issues as to the pool for distribution. They can only be determined on hearing.
Otherwise the wife has received $120,000 and the husband $320,000. These funds are not referred to in the husband’s asserted pool.
Sale of the home
The parties have agreed on the sale of and the mechanism for sale of the husband’s home at Suburb C. Those orders have been made. This application is as to the proceeds of sale and monies held on behalf of both parties.
It is common ground that the husband will pay the verdict monies to the wife from the proceeds of sale.
Discussion
In his Amended Response filed 11 March 2013 the husbands seeks orders that:
a)He pay the wife $250,000;
b)He transfer I Pty Ltd (trustee of the Bault Superannuation Fund) to the wife;
c)He transfer the Japanese motor vehicle to the wife; and
d)The wife retain her savings, jewellery, loose stones, Krugerrand coin, superannuation and personalty in her possession or control.
The husband asserts a pool of about $3.15m. The wife asserts significant non-disclosure as referred to above and takes issue with the alleged loans to her children. If they are out of the pool it is diminished by about $465,000. The funds previously received by the parties would add $440,000 to the pool.
The wife has access to her superannuation as to a further $170,000 under current orders and a further superannuation entitlement of about another $314,000 plus interest from 2012.
Further, on sale of the home it is agreed that she will receive payment from the sale proceeds of her verdict of $406,562 and costs if assessed by that time. The verdict includes components that address some of her s 75(2) factors such as future care ($36,000) and future out of pocket expenses ($15,000).
As to contributions the wife relies on her non-financial contributions during cohabitation as to homemaker probably offset it is contended by the husband by the fact of her children for various times being household members supported by the husband. She also has an unaccounted for inheritance but otherwise makes no claim as to any financial contribution.
If loans are found owing by her children they may form part of her entitlement.
The wife’s evidence as to contribution is at best sparse. It is common ground the husband came into the relationship with all of the assets. Doing the best on the evidence available the wife’s range of contribution based entitlement may be around 15- 20 per cent. Her s 75(2) factors entitlement having regard to the verdict and other relevant factors may be about 5 per cent.
Overall if a prospective entitlement is about 25 per cent then on the husband’s pool case she would receive about $780,000. If, as the wife contends the loans are out, she would on the husband’s pool receive about $672,000, subject to the wife’s argument as to nondisclosure she may receive more.
The final adjustive pool at present is remarkably unclear.
A final determination may see the wife with more or less. There are a number of matters of contention, many significant. The wife is using funds to live on and meet her legal expenses. In the event of a further distribution to her the recovery of same may be problematic. The Court needs to be aware of the caution referred to in paragraph 10 above and a conservative approach must be taken.
It is agreed that the verdict monies can be paid to the wife from the proceeds of sale. An order will be made accordingly.
Otherwise previous orders restrain the parties from accessing controlled funds held on their behalf and as to the wife a portion of her superannuation. Those orders should be discharged. There is no reason for them to continue. Orders will be made accordingly.
In the circumstances it is inappropriate to make a further distribution to the wife of $1,000,000 plus a discrete sum of $20,000 in funds pending final resolution of property. To do so would result in funds that are the subject of dispute as to entitlement being paid to her in circumstances where the payment of such funds may not be capable of reversal.
The extent, if any, of the husband’s non-disclosure is not known and can only be resolved on contested evidence.
It would be appropriate to cause the whole of the proceeds of sale to be held in a controlled monies account subject to the payment to the wife of her verdict monies.
Expedition
Rule 12A of the Family Law Rules 2004 (Cth) relevantly provides:
Expedition
(1) A party may apply to expedite the first day before the Judge.
(2) The court may take into account:
(a) whether the applicant has acted reasonably and without delay in the conduct of the case;
(b) whether the application has been made without delay;
(c) any prejudice to the respondent; and
(d) whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
(3) If the court is satisfied of the matters in subrule (2), the court may:
(a) set an early first day before the Judge; and
(b) make procedural orders for the further conduct of the case.
(4) For paragraph (2)(d), a relevant circumstance includes:
(a) whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b) whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c) whether the applicant is suffering financial hardship that:
(i) is not caused by the applicant; and
(ii) cannot be rectified by an interim order;
(d) whether the continuation of interim orders is causing the applicant or a child hardship;
(e) whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f) whether the case involves allegations of child sexual, or other, abuse; and
(g) whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
The husband seeks expedition. The matter has languished; it appears, pending resolution of the District Court proceedings. The matter however has been pending since August 2012. The application for expedition has been made in a timely way after finalisation of the civil proceedings in the District Court.
Expedition would not prejudice the wife. It is to be inferred that she is desirous of having the matter finalised.
Yet there is no “relevant circumstance” as discussed below that should afford this matter priority to the detriment of other cases awaiting trial.
The husband is elderly and asserts some health issues. No independent evidence is adduced as to his health circumstances that would affect his availability or competence. The applicant does not contend financial hardship. There are no relevant interim orders. None of the other r 12A(4) considerations apply.
On present indications the matter may be heard in the current calendar year.
There will be no order as to expedition.
Otherwise the parties’ interim applications are to be dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 March 2016.
Associate:
Date: 3 March 2016
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Appeal
-
Jurisdiction
-
Remedies
-
Procedural Fairness
0
2