BEAUMONT & GARDNER
[2013] FCCA 2282
•17 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEAUMONT & GARDNER | [2013] FCCA 2282 |
| Catchwords: PRACTICE & PROCEDURE – Fraud – allegation of fraud. |
| Legislation: Evidence Act 1995 (Cth), s.144 Family Law Act 1975 (Cth), ss.90SB, 90SE, 90SF, 90SG Superannuation Industry (Supervision) Act 1993 (Cth), ss.71, 82 |
| Applicant: | MS BEAUMONT |
| Respondent: | MR GARDNER |
| File Number: | SYC 5026 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 2 December 2013 |
| Date of Last Submission: | 2 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodgson (direct brief) |
| Counsel for the Respondent: | Ms Messner |
| Solicitors for the Respondent: | Moylan Family Lawyers |
ORDERS
UNTIL FURTHER ORDER
The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from interfering with the Applicant’s continued exclusive occupancy of the property situate and known as Property C, in the State of New South Wales.
The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from doing any act or thing or causing any act or thing to be done which has the purpose or effect of transferring, assigning, mortgaging, encumbering, charging or otherwise dealing with his interest in the said property at Property C.
The Respondent pending final determination of these proceedings or further Order is to pay the following outgoings in relation to the said property at Property C as and when they fall due:
(a)Mortgage payments if any;
(b)Council rates;
(c)Insurances;
(d)Body corporate levies;
(e)Water rates; and
(f)Electricity and gas charges.
The Respondent, his servants or agents is and are restrained from entering upon the property at Property C without the express invitation of the Applicant.
The Respondent is to pay to the Applicant by way of urgent maintenance under the provisions of section 90SG of the Family Law Act 1975 the sum of $12,500.00 within seven (7) days of the date of this Order.
The Respondent is to pay to the Applicant by way of interim maintenance under the provisions of section 90SE of the Family Law Act 1975 the sum of $500.00 per week payable fortnightly in advance, the first payment to be made within seven (7) days of the date of this Order.
All other interim applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Beaumont & Gardner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5026 of 2013
| MS BEAUMONT |
Applicant
And
| MR GARDNER |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the former de facto Wife of the Respondent for interim orders:
a)restraining the Respondent from selling or disposing of certain real estate;
b)giving her exclusive occupation of the home unit in which she is living;
c)restraining the Respondent from entering the home unit;
d)paying her maintenance in the sum of $1,000.00 per week;
e)paying her a lump sum of $50,000.00 by way of urgent maintenance;
f)restraining the Respondent from harassing, intimidating or interfering with her; and
g)costs.
The Respondent opposes those Orders and seeks orders that:
a)the Applicant should vacate the home unit in which she is living; and
b)that he should do all things necessary to submit the property for sale by public auction.
Background
The parties met in 2005 and commenced living in a de facto relationship in March 2006. They separated on 26th April 2013, after a series of arguments. The Applicant is currently living in a home unit at Property C, which is registered in the name of a company called (omitted) Pty Limited, of which the Respondent is a director. The Respondent wants her to move out so that he can sell the property, but she says that she has no other accommodation. The Respondent is living in the parties’ former home at Property P, which is registered in his sole name.
The Applicant was born on (omitted) 1959 and is currently 54 years of age. She deposes in her affidavit of 27th August 2013 that she worked in (occupation omitted) and later in the (omitted) industry and in the (omitted) industry.
The Applicant was in employment when she met the Respondent but deposes that he asked her to give up work when she commenced living with him. She states that she acted as the Respondent’s (position omitted) during the course of their relationship, which included (duties omitted).
The Respondent was born on (omitted) 1940. He is 73 years of age. He was a (omitted) by occupation and is now retired as a (omitted). He resigned from his employment in May 2013 because of ill-health and what he deposed was “stress associated with the breakdown of our relationship”.[1]
[1] Affidavit of Mr Gardner 25.10.2013 at paragraph [21]
The Applicant commenced proceedings on 29th August 2013 by filing an Application, an affidavit and a Financial Statement. The Application was returnable on 4th November 2013.
The Respondent filed his Response and supporting documents on 30th October 2013. He filed a further affidavit on 4th November, the return date of the Application.
On 4th November 2013 the parties were directed to attend a Conciliation Conference before a Registrar. The Conference has been appointed for 11:00 am on Monday 13th January 2014.
Issues
The Applicant is living in the home unit at Property C because, she says, she has no other accommodation. She seeks exclusive occupation of the property until the proceedings are finalised. She is not in employment and has not worked other than for the Respondent since she started living with him in 2006. She deposes that she has had to borrow money from family members, as her only income is from Centrelink payments. Her MasterCard has reached its credit limit.
The Applicant states that the two properties, at Property C and Property P, represent the substantial assets of the Respondent are properties to which she made contributions during the time the parties were together. She seeks that both properties should be preserved and not disposed of until the proceedings are determined.
The Respondent’s case is largely set out in his affidavit of 4th November 2013. He states that he does not have any source of income and is not entitled to a Centrelink benefit. He deposes:
The only way that I can satisfy Ms Beaumont’s claim for property settlement is through the sale of the property at Property C, which is held by my self-managed superannuation fund.[2]
[2] Affidavit of Mr Gardner 4.11.2013 at [3]
The Respondent has entered into what is commonly called a “reverse mortgage” by borrowing against the security of his house at Property P:
I have obtained a loan from my bank in the sum of $100,000.00. Because I am unable to make repayments the bank has lent me the monies on the basis of an interest rate of 9 per centum per annum. I do not believe that I would be able to obtain further accommodation from the bank once these monies have been expended. As such I intend to bring about the sale of the Property C property subject to any Order of this Court.[3]
[3] Affidavit of Mr Gardner 4.1.2013 at [7]
The Respondent estimates his current weekly expenses at $904.75. He also states that he has an amount of $126,737.00 in savings including the loan of $100,000.00 from the bank.
Submissions
Mr Hodgson of Counsel, who appeared for the Applicant, submitted that since separation his client had been left with very little. Her credit card is “maxed out” and she is unable to support herself adequately. She seeks periodic maintenance and an urgent lump sum.
Ms Messner of Counsel, who appeared for the Respondent, tendered a copy of a letter dated 26th October 2012 from (omitted) Pty Limited, accountants, advising the parties that the occupation of the property at Property C by the Applicant’s daughter at the time contravened the Superannuation Industry (Supervision) Act 1993, the fact that the property was leased to the Applicant’s daughter meant that the property was classified as an in-house asset of the superannuation fund under s.71 of the Act. Section 82 of the Act requires that only 5% of the assets held by a superannuation fund can be in-house assets. As the Property C property is the principal asset in the fund, it clearly exceeds 5% of the total assets. The letter went to advise that the Respondent was required to take steps in order to dispose of the excess amount of in-house assets and act promptly to rectify the contravention as soon as possible. It does not appear that any steps were taken. Even though the Applicant’s daughter no longer resides there, the fact that the Applicant resides in the property still constitutes a contravention of the Act.
Ms Messner submitted that, technically, the company (omitted) Pty Ltd should be joined as a party. In any event, she queried whether the Court has jurisdiction to order the Respondent to do something that contravenes the Superannuation Industry (Supervision) Act 1993. There was no evidence of harassment by the Respondent or that he had tried to enter the property or remove the Applicant from it.
It was further submitted that the Applicant had not provided any evidence in support of her claims for periodic maintenance or urgent lump sum maintenance.
Claims for Maintenance arising out of a de facto relationship
There are requirements to be satisfied under ss. 90SB and 90SD of the Family Law Act 1975 before a Court exercising jurisdiction under the Act may make a maintenance order or an order for settlement of property arising out of a de facto relationship.
First, the Court must be satisfied about the length or other details of the relationship. Section 90SB of the Act provides that:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in a serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
There is also a geographical requirement under s.90SD of the Act. Essentially, subsection (1) requires that either or both of the parties were ordinarily resident in a participating jurisdiction when the application was made and that either both parties were ordinarily resident in a participating jurisdiction during at least a third of the de facto relationship or the applicant made substantial contributions in relation to the relationship. The alternative condition under subsection (1A) is that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down.
New South Wales is a participating jurisdiction.
Subsection 90SE(1) contains a general power to make maintenance orders:
After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.
Subsection 90SF(1) provides:
In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a)only to the extent that the first-mentioned party is reasonably able to do so; and
(b)only if the second-mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
Subsection 90SF(2) requires the Court to take into account only the matters set out in subsection 90SF(3). The matters to be taken into account are set out at paragraphs (a) to (t) inclusive.
Section 90SG of the Act provides for urgent maintenance and states:
If, in proceedings with respect to the maintenance of a party to a de facto relationship in accordance with this Division, it appears to the court that:
(a)the party is in immediate need of financial assistance; and
(b)it is not practicable in the circumstances to determine immediately what order, if any, should be made;
the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
Conclusions
There is no issue between the parties that they lived in a de facto relationship from March 2006 until April 2013, a period of some seven years. Consequently, the requirement of s.90SB(a) is satisfied.
There is also no issue between the parties that they lived in New South Wales for the entirety of the relationship. New South Wales is a participating jurisdiction. The geographical requirement of s.90SD(1) is therefore satisfied.
The Court must be satisfied of the matters in ss.90SB and 90SD before it can make a maintenance order under either ss.90SE or 90SG. I am so satisfied.
The Applicant is seeking exclusive occupation of the home unit in Property C until these proceedings are resolved. She asserts that she has no other accommodation available to her. It would appear that the Applicant will be unable to live in the property permanently, as her substantive property claim would be unlikely to result in her receiving the property or its equivalent in value, even on the most generous of calculations. However, the parties are to attend a conciliation conference on 13 January 2014, and it would cause the Applicant hardship to have to relocate before the conference, when the parties would hopefully enter into sensible negotiations to resolve the financial issues between them.
The Respondent has raised the advice of (omitted) Pty Limited, Accountants that the Applicant’s occupation of the home unit is a contravention of the Superannuation Industry (Supervision) Act 1993 and the Court should not, therefore, order him to do anything that would contravene the Act, or continue the contravention of the Act. That may well be the case, but the Respondent has been aware since 26th October 2012 that the occupation of the property by the Applicant’s daughter was a contravention of the Act and he has not taken any steps to resolve the situation until now, so in my view the Applicant may just as well continue to reside there undisturbed by the Respondent until the proceedings have been resolved. She needs to be aware that she will not be able to reside in the unit indefinitely, as it may well need to be sold.
Ms Messner told the Court that the Respondent wishes to sell the property and made an open offer that the parties should each receive the sum of $100,000.00 from the proceeds and that the balance should go into a controlled monies account pending a resolution of the issues between the parties.
I am satisfied that at this stage the Respondent should be restrained from selling or otherwise disposing of the property and that the Applicant should have exclusive occupation of it, with the Respondent paying the necessary outgoings.
I am not satisfied that there is any evidence that would warrant an order restraining the Respondent from molesting, harassing, intimidating or otherwise interfering with the Applicant.
I am not satisfied that there is any evidence that would warrant an order restraining the Respondent from selling, disposing of, encumbering or in any way dealing with the property at Property P, which where he is currently residing. The Respondent has already borrowed an amount of $100,000.00 against it and he has deposed that he has no source of income. The order sought by the Applicant would prevent him from borrowing further against the property of the need should arise.
The Applicant seeks an order for urgent maintenance in the sum of $50,000.00. She originally sought $15,000.00, and the Respondent offered $5,000.00 at the hearing. The Applicant’s Counsel informed the Court that the Applicant’s claim for urgent lump sum maintenance was to be increased to $50,000.00.
The Court has to be satisfied, under s.90SG, both that the party is in immediate need of financial assistance and it is not practicable to determine immediately what order, if any, should be made. If both of those conditions are met, the Court may order the payment of such periodic or other sums as the Court considers reasonable.
The Applicant has provided evidence in her affidavit that she is in immediate need of financial assistance. She is not in employment and she is receiving payments from Centrelink. She has no private health cover as it was cancelled by the Respondent and she owes her dentist the sum of $2,000.00. She deposed that she needs “foot surgery again as soon as I can afford it”[4] but has not provided any medical evidence.
[4] Affidavit of Ms Beaumont 27.8.2013
The Applicant deposes that she has borrowed money from her parents and her brother to meet her outgoings and pay her legal costs and states that she is “anxious” to repay her family members at least some of the monies which she has borrowed since separation. She does not state that any of her family members are pressing her for repayment of this money.
What is significant is the Applicant’s statement that she has taken her MasterCard to its maximum limit of $12,500.00. This would mean that she is without the ability to use her MasterCard to purchase items or to pay her dentist’s account.
The Applicant deposed that:
I have received no financial support whatsoever from the Respondent since the time of our separation. I have no assets to speak of.[5]
[5] Ibid at [29]
Whilst I am satisfied that the Applicant has demonstrated that she is in immediate need of financial assistance, I am not satisfied that the amount of $50,000.00 that she seeks is justified by the evidence. It is not, in my view, a reasonable amount.
If the Applicant has “maxed out” her MasterCard, which has a limit of $12,5000.00, she has demonstrated a need for the amount of $12,500.00 to bring her card back to a nil balance and stop interest accruing. Without a credit card, the Applicant would be severely hampered in purchasing items or paying existing and pressing debts.
I am satisfied that the Applicant has shown a need for an immediate lump sum payment of $12,500.00 to apply towards her MasterCard.
It would appear to me that the Respondent has the capacity to pay this amount. He has deposed in his affidavit of 4th November 2013 that he has an amount of $126,737.00 in savings, including the amount of $100,000.00 that he borrowed from the bank. It would not in my view cause him any serious hardship to pay to the Applicant an amount of $12,500.00 within seven days by way of urgent maintenance.
The Applicant also seeks interim periodic maintenance in the sum of $1,000.00 per week. Interestingly, she seeks this maintenance under s.90SE rather than under s.90SG, which covers urgent maintenance.
The Court must be satisfied that the Respondent is reasonably able to pay periodic maintenance (s.90SF(1)(a)). He has money at his disposal amounting to $126,737.00 (less the amount of $12,500.00 that he will be required to pay for urgent maintenance), so there is evidence that he has some capacity to pay, at least for the time being.
The Court must also be satisfied that the Applicant is unable to support herself adequately for one of the reasons set out in s.90SF(1)(b). The Applicant does not have the care and control of a child of the relationship under the age of 18 years, so she must establish a ground under s.90SF(1)(b)(ii) or (iii), either by reason of age or physical or mental incapacity for appropriate gainful employment, or for any other adequate reason.
The Applicant is 54 years of age and has not worked outside the relationship since the parties separated in April 2013. She claims that she worked as the Respondent’s (position omitted) throughout the term of the relationship, but the Respondent in his affidavit of 25th October 2013 downplays the degree of support that the Applicant gave to him during the term of the relationship, saying:
The level of support provided by Ms Beaumont however was minimal, primarily Ms Beaumont assisted me with my twitter account however I deny that she provided me with any support that reflected my career success. As a (occupation omitted) I have always (duties omitted) and had access to computers.[6]
[6] Affidavit of Mr Gardner 25.10.2013 at [22]
If, as the Respondent claims, all the Applicant did was help him with his Twitter account during the relationship, it would appear that since March 2006 she had not exercised any skills that would enable her to find employment readily, especially at the age of 54. The Applicant claims that she does not feel capable of working in any capacity and her symptoms of Chronic Fatigue syndrome have been exacerbated.
I am satisfied that the Applicant has made out a case that she is unable to support herself adequately by reason of her age and current physical or mental incapacity.
Considering the factors in s.90SF(3), the Applicant is aged 54 and complains of health issues. The Respondent is aged 73 and has health issues which resulted in his voluntary admission to the (omitted) unit at (omitted) Mental Health facility suffering from depressive symptoms. He was a patient for about 11 weeks and is unable to work.
The Applicant’s only income is derived from Centrelink, being a New Start Allowance in the amount of $248.00 per week. The Respondent deposes that he has no income and is unable to obtain an Age Pension because he owns the two properties.
There is no child of the relationship under the age of 18 years.
The Applicant claims in her Financial Statement that her average weekly expenses amount to $975.00. The Respondent claims at paragraph [8] of his affidavit of 4th November 2013 that he estimates his current weekly expenses at $904.75, including paying the sum of $100.00 per week to his adult son. Those expenses include the outgoings on the property at Property C.
The Respondent’s counsel was sceptical of some of the amounts claimed by the Applicant in her Financial Statement as her average weekly expenses and submitted, with some justification, that the evidence did not support the Applicant’s claim for interim maintenance amounting to $1,000.00 per week.
Ms Messner submitted that the Applicant’s weekly expenses could be pared down to a more realistic figure of about $275.00 per week, which is perhaps a little harsh.
However, it does appear that the Applicant’s claim for interim maintenance in the sum of $1,000.00 is more of an ambit claim than a realistic figure, noting that she estimates her average weekly expenses at $975.00, which still seems rather generous.
I note that the Applicant estimates that food costs her on average the sum of $300.00 per week, half as much as the Respondent claims.
The Applicant also claims $120.00 per week for fares and car parking. She does not own a car and lives at Property C, which, as is common knowledge in Sydney, is near to (omitted) Railway Station (see Evidence Act 1995 (Cth), s.144). The Applicant also claims to spend $50.00 per week on entertainment and hobbies, $100.00 per week on clothing and shoes, $30.00 per week on cleaning and $10.00 per week on repairs.
In my view, a more realistic figure for interim maintenance would be $500.00 per week and that is the amount I propose to order until further order.
Allegation of Fraud
I note that, in his affidavit of 25th October 2013 at paragraph [14], the Respondent accuses the Applicant of fraud:
About 12 months after Ms Beaumont stopped working I learned that she was claiming Centrelink payments from the government, having the payments sent directly to her parents’ home. I am unaware of what Ms Beaumont did with this money and when I finally learned of this fraud I suggested that she cancel the payments immediately.
It is a very serious matter to accuse someone of fraud. The Respondent is, in the paragraph quoted, accusing the Applicant of a criminal offence. The Respondent is legally represented, and even if he is unaware of the seriousness of this allegation, his lawyers should be. If the Respondent has evidence that the Applicant has committed an offence against a law of the Commonwealth, he may well be asked why he has not informed the authorities.
If this claim of fraud is to be pressed, the Respondent’s lawyers would be well advised to ensure that they have “available material by which the allegation could be supported [that] provides a proper basis for it”.[7]
[7] New South Wales Barristers’ Rules, Rule 64
Conciliation Conference
The parties are to attend a Conciliation Conference before a Registrar on 13th January 2014. They should be aware that the asset pool is finite, neither party is in employment, and litigation is expensive. They would do well to approach the Conference in a realistic frame of mind and make a genuine effort to resolve the financial issues between them in a way that is just and equitable.
If the matter does not resolve before the Registrar, it will be listed for mention before the Court on 3rd February 2014.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 8 January 2014
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