Bloxham & Bloxham - [2018] FamCA 1070

FAMILY COURT OF AUSTRALIA

BLOXHAM & BLOXHAM

[2018] FamCA 1070

FAMILY LAW – Interim property – Where funds released to the husband as a consequence of his precipitate conduct – Where consideration of the parties’ relationship and contributions to the present property pool as known – Where consideration of relevant s 75(2) factors – Where husband contends that property pool significant with further capital payments to come – Where husband received about 20 per cent of pool as asserted by him – Where same sum sought by wife substantially to be held in real estate for accommodation of herself and the children – Where appropriate and in the interests of justice that order be made substantially as sought by the wife.

Family Law Act 1975 (Cth) ss 75, 79, 80

Harris & Harris (1993) FLC 92-378
Kelby & Kelby [2016] FamCA 698
Moroni & Moroni [2014] FamCA 664
Strahan & Strahan [2009] FamCAFC 166
Vincent & Vincent [2013] FamCA 425
Vittorio & Oliphant [2017] FamCA 802
Wenz v Archer (2008) 40 Fam LR 212
Yeh & Jyu [2014] FamCA 162

APPLICANT:

Mr Bloxham

RESPONDENT:

Ms Bloxham

FILE NUMBER:

PAC

2582

2017

DATE DELIVERED:

13 December 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

22 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC with Mr Wong

SOLICITOR FOR THE APPLICANT:

Watts McCray (NSW) Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

Dorter Family Lawyers and Mediators

Orders

That the husband within seven days from this date do all things necessary to withdraw a sum of $11,225,000.00 from the funds held in the CBA Account bearing BSB … Account Number …31 and pay such sum to the wife’s solicitors to be held by such solicitors in a controlled money interest bearing account in trust for the wife subject to the following orders.
That the wife be restrained from authorising or directing her solicitors to pay funds received by the solicitors from the husband in any way other than as follows:
(a)As to sums not exceeding $10,000,000.00 for the purchase of a property in the name of the wife with such sum to be applied to the purchase price, stamp duty, legal costs on purchase and furnishing of the property;
(b)As to the balance of $1,225,000.00 together with interest on any unspent balance as accrued to the wife or as she may otherwise direct in writing provided always that the wife may at her discretion apply all or part of same to the purchase of the property as provided for.
That the wife is restrained from selling or encumbering by way of mortgage the property purchased by her pending further order.
That the characterisation of the sum to be paid to the wife’s solicitors is reserved to final trial or agreement between the parties.
That costs of and incidental to the present application be reserved to final trial or agreement between the parties.

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 Bloxham & Bloxham 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 PARRAMATTA

FILE NUMBER: PAC 2582 of 2017

Mr Bloxham

Applicant

And

Ms Bloxham

Respondent

REASONS FOR JUDGMENT

In the context of ongoing property proceedings between the applicant wife and respondent husband the question of an interim distribution or allocation from cash funds available to the parties has arisen.

Context

The wife commenced proceedings by Initiating Application filed 25 May 2017 seeking orders as to property adjustment, spousal maintenance and costs.
On 7 June 2017 the husband filed his Response to the wife’s Application. In that Response the husband sought parenting orders in relation to the parties’ three children and an order for property adjustment somewhat inelegantly framed seeking an order by way of alterations of property interests “as will be necessary to do justice and equity to the parties”. Otherwise, he sought that the wife’s application for spouse maintenance be dismissed.
Proceedings were listed before a Registrar on 7 August 2017 and it was noted that the parties had agreed to proceed to mediation as to financial issues. Otherwise, directions were made for appropriate financial disclosure and the undertaking of relevant valuations. The proceedings were again before a Registrar on 29 November 2017. Mediation had not been completed and there were outstanding issues in relation to valuation.
The proceedings were again before a Registrar on 13 February 2018, 16 April 2018, 18 June 2018 and 16 August 2018 with valuation issues still ongoing.
On 28 August 2018 a Registrar made an order by consent that provided for the husband to pay to the trust account of the wife’s solicitors the sum of $250,000.00 with such sum to be categorised at final trial. It is common ground that such funds have been applied to the wife’s costs.
The proceedings were then listed before the Court on 6 September 2018 in circumstances where significant business interests of the parties, the subject of ongoing property proceedings, had been sold and the proceeds of sale or part thereof had been deposited by the husband to his Commonwealth Bank accounts. The funds deposited totalled about $59 million.
On 6 September 2018 various interim orders were made by consent relevantly as follows:
BY CONSENT AND PENDING FURTHER ORDER, IT IS ORDERED THAT
(1)That for the purposes of these Orders the following definitions apply:
(a)"SPD” means the Share Purchase Deed dated 8 July 2018 entered into for the sale of [C] Pty Limited, associated entities and third parties, including but not limited to:
(i)[C] Pty Ltd (Australian Company Number …).
(ii)[C2] Limited, an entity incorporated in New Zealand bearing company number … .
(iii)[C3] Limited, an entity incorporated in the United Kingdom bearing incorporation number … .
(b)"Sale Proceeds" means the amounts payable under the SPD in respect of the applicant and respondent’s interests including but not limited to:
(i)[C] Pty Ltd (Australian Company Number …).
(ii)[C2] Limited, an entity incorporated in New Zealand bearing company number ….
(iii)[C3] Limited, an entity incorporated in the United Kingdom bearing incorporation number ….
PENDING FURTHER ORDER:
(2)The Respondent is hereby restrained by injunction from withdrawing and/or disbursing any of the Sale Proceeds held in the CBA Accounts BSB … Account Number …31 and BSB … Account Number …24:
(a)Unless necessary to pay any taxes assessed and arising from the SPD or other necessary costs and expenses to be paid under the SPD; and
(b)Without first giving the Applicant 28 days written notice of the Respondent's intention to withdraw and/or disburse any of the Sale Proceeds, with such written notice to be provided to the Applicant or the Applicant’s Lawyer.
(c)For the purposes of Orders 2a and 2b, the Respondent will provide to the Applicant or the Applicant's Lawyer, copies of all source documents evidencing the liability, cost or expense intended to be met and paid
3.The Respondent to the extent this has not already been provided shall by 4pm Friday 7 September 2018, provide documentary evidence of the receipt of the Sale Proceeds into the CBA Accounts in Order 1 to the Applicant's Lawyers, including but not limited to receipts /bank statements for the CBA accounts into which the Sale Proceeds are received.
4.That the Applicant and the Respondent's costs of and incidental to this Application be reserved.
Notations
A.Completion of the SPD occurred on 31 August 2018 and the Sale Proceeds have been paid into the Commonwealth Bank of Australia BSB … Account Number …31 and BSB … Account Number …24 held in the name of [Mr Bloxham/F] Pty Ltd;
B.The Respondent is to forthwith instruct the Commonwealth Bank of Australia to grant the Applicant viewing access only to the CBA Accounts referred to in Order 1.
C.The Applicant and Respondent to serve a copy of these Orders and Notations on CBA within 24 hours.
Child and Parents Intake Assessment
7.The parties attend for the purposes of child and parents intake assessment interviews at 9.00 am on Monday, 29 October 2018 and obey all reasonable directions from the consultant as to such other people who may be relevant for the purposes of the interviews.
8.Each of the parents are to attend and make the children available to Child Dispute Services at 9.00 am on Monday, 29 October 2018 for the purposes of a Child and Parents Issues Assessment.
9.The applicant husband file and serve an Amended Initiating Application setting out with particularity orders as to property adjustment sought by him together with an updated financial statement by 5 October 2018.
10.Financial proceedings be adjourned to a Registrar’s list at 9.30 am on 9 November 2018 noting it is anticipated the Registrar will endeavour to make directions to facilitate a conciliation conference noting otherwise that by reason of the asset pool the parties may elect to proceed to private mediation and in that event it is the Court’s view that the requirement for a conciliation conference will be dispensed with.
11.Leave is granted to either party to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.
To date the husband has failed to comply with Order 9 above.
On 8 October 2018 the husband filed an Application a Case seeking, in summary, orders that provided for orders made on 6 September 2018 by consent to be varied in that he be able to withdraw forthwith the sum of $11.225 million from funds held in a Commonwealth Bank account with such sum to be utilised towards the purchase of a property at Suburb G in his sole name including but not limited to the deposit, purchase price, stamp duty and associated costs such as conveyancing costs and furniture/furnishings and requisites for the property.
The husband’s Application was supported by:
a)his affidavit filed 8 October 2018;
b)his financial statement filed 11 October 2018; and
c)his updating affidavit filed 19 October 2018.
The wife filed on 19 October 2018 a Response to the husband’s Application in a Case that, in summary, sought orders as follows:
a)that the husband be permitted to withdraw $11.225 million from the Commonwealth Bank account for the purposes of completing the purchase of the Suburb G property with such payment to be categorised at final trial; and
b)that a further sum of $11.225 million from the Commonwealth Bank account be paid to the wife with such payment to be categorised at final trial;
c)otherwise, the wife sought various orders as to disclosure and discovery that were resolved by consent at the interim hearing.
The wife relied upon:
a)her affidavit filed 19 October 2018; and
b)her Financial Statement filed the same date.

The husband’s evidence

The husband asserts that in mid-September 2018 he spoke to the wife as to his interest in purchasing a property at Suburb G for $10.5 million and for such purchase his need to access funds held in the Commonwealth Bank. The wife’s solicitors were informed by letter dated 14 September 2018.
The husband asserts that over a significant period prior to mid-September 2018 he had spoken to the wife on various occasions as to his intention to acquire a suitable property for the accommodation of himself and the children. He asserts that the wife had previously had no objection to his proposal.
The husband says that relying upon earlier discussions with the wife he paid a deposit in relation to the proposed purchase of $525,015.00 on 14 September 2018. Surprisingly and somewhat precipitously, contracts for the purchase were exchanged by the husband on that day requiring settlement of the purchase by 26 October 2018.
The husband required funds of about $10.66 million to complete the purchase including stamp duty and legal costs. Stamp duty in the sum of $675,510.00 was payable by no later than 11 October 2018.
Having received no formal response from the wife’s solicitors the husband’s solicitors wrote again on 18 September 2018 seeking the wife’s consent to release of the funds to be able to complete the purchase. The wife’s solicitors responded, informing the husband that the wife did not agree to the release of the funds and proposing that the wife receive $11.225 million by way of interim property distribution.
At present the wife resides in the former matrimonial home at Suburb G that is unencumbered. The property is registered in the name of the husband and wife in disparate shares as to 99 per cent to the wife and one per cent to the husband. It remains an asset subject to final property orders.
It was the husband’s position that the new Suburb G property would be an asset on the balance sheet for the purposes of property division and that the release of interim funds to him to complete the purchase would leave nearly $48 million on cash deposit with the Commonwealth Bank. In reality the husband’s proposal simply transposes a cash deposit into a significant asset comprising unencumbered real estate. The only diminution in the available cash pool is costs associated with the purchase being stamp duty and legal fees.
The husband does not consent to any interim distribution or payment to the wife.
The husband’s application does not assert that he has an entitlement to the funds by way of partial property, indeed, he provided to the Court no evidence, save for his counsel’s submissions, as to what the ultimate pool of assets may be for distribution nor any evidence supportive of any contribution based finding that might support a payment to him by way of interim property. His application is simply based on his actions on exchanging a contract for the purchase of a multi-million dollar property absent clear access to funds that would facilitate settlement of the purchase.
The husband in submissions asserts that the matrimonial asset pool has a value of about $48 million after allowing for a contingent tax liability of $23.5 million. He concedes that there are a number of contingent further payments over the next three years under the C entities sale agreement. He does not specify quantum.
He contends that there are no circumstances in which it is appropriate for the Court to exercise its power to make partial property orders in favour of the wife.

The wife’s evidence

Initially, the wife sought a dismissal of the husband’s application seeking release of funds. Such would expose the husband to a forfeiture of his five per cent deposit paid on the purchase, an obligation to pay the remaining portion of the contractual 10 per cent deposit and a prospective damages claim in the event that the vendor was not able to resell the property at a price equivalent to or greater than the contract price to the husband.
The husband’s actions, asserts the wife, in exchanging contracts for the purchase absent her clear consent to a release of funds was precipitate and irresponsible.
The wife asserts that should the husband have access to funds effectively converting cash funds into real estate then she should have access to a similar fund to do the same thing.
The wife asserts there are outstanding issues as to whether the husband held or holds current interests in overseas corporations in circumstances where a final sale of the parties business to J Company might realise funds substantially in excess of the total of $74 million asserted by the husband.

History

The parties commenced cohabitation in 2000, living in New Zealand. The parties married in January 2007 in Australia and separated in July 2016.
There are three children of the marriage presently aged four, six and seven.
The wife asserts that during the marriage she was the primary carer of the children and remains so to date. The children continue to live with the wife in the former matrimonial home at Suburb G. The husband, she asserts, spends little time with the children due to his work obligations and significant travel commitments.
The wife says that at the commencement of cohabitation she and the husband had no assets of any significance. The business interest of the husband and the parties were commenced and developed during the relationship.
The wife asserts that she has had a significant role in the primary business of the parties C Pty Ltd, a business venture, established by the parties at about the time they relocated to Australia in 2007.
The wife asserts that she had a significant role in supporting the family from the early days of the business and in the business expanding and developing over the years. She acknowledges that the husband had business acumen and contacts in the industry that enabled them to pursue the development of their new business.
The business expanded overseas including in Country B, the United Kingdom and New Zealand. In each of these jurisdictions the business required a director that was resident in the jurisdiction. The wife’s brother Mr O was appointed a director of the business in the United Kingdom where the shareholding in the business was held beneficially for F Pty Ltd as trustee for the parties’ family trust the “Bloxham Family Trust”. Similarly, the husband’s father became a director for the purposes of the business activities in New Zealand and a Mr D was appointed as a director for the purposes of the business activities in Country B.
The wife undertook accounting training and was involved in the bookkeeping and accounting for the business.
Following the birth of the first child the wife asserts that the parties agreed that the husband would focus his primary attention on the business and the wife would attend to family obligations.
In 2016 the husband informed the wife that he was engaged in discussions as to a merger of the C businesses with a company E Pty Ltd that had as its sole director and shareholder a Mr H. A proposed Merger Implementation Deed was signed on 21 December 2016 that in essence provides for underlying shareholdings in C and E to be transferred to a new “Merged Group Entity”. The husband asserted to the wife, it appears falsely, in late March 2018 that the merger never eventuated.
The wife’s solicitors were informed in June 2018 of negotiations in place for the sale of the C entities including its related overseas entities to a publicly listed company J Company. Previously in late March 2018 the husband had requested that the wife transfer to him her shareholding in C. It was asserted by his solicitors that the wife’s interests in the corporate entities were protected by her rights under the Family Law Act and that the wife’s retention of her shareholding was “inappropriate” as the parties had separated.
Subsequently, the wife asserts that the sale of the C entities was part of an overall sale that included the E entities at a total sale price of $270 million to be distributed pursuant to a Share Purchase Deed dated 8 July 2018. The share purchase deed was signed by the wife but she complains that she was not permitted at any time to be party to the negotiations nor has she been provided with any documents from the husband as to the course of those negotiations.
Relevantly, the share purchase agreement provides that funds from the sale would be apportioned, inter-alia, in part as follows:
a)24.71 per cent to C Pty Ltd (Australia) for the sellers the husband and wife;
b)2.79 per cent to C3 Ltd (UK) for the seller F Pty Ltd as trustee for the Bloxham Family Trust;
c)26.5 per cent to C4 Inc (Country B) equally apportioned for the sellers “P” Inc and Mr D;
d)One per cent to C5 Inc (US) for the seller “P” Inc.

The wife expresses her concerns as to the husband having an undisclosed interest in the Country B and United States entities through which the sellers were to receive 27.5 per cent of the proceeds of sale being about $74 million. In that event, the wife asserts that through the various entities the husband could be entitled to a total of about $145 million and not the $74 million as asserted by him.
Otherwise, the wife expresses concern as to the entitlement of Mr D who she says was a director of convenience for the entity’s operations in Country B. Under the share purchase agreement he has an ostensible entitlement through his “shareholding” of about $74 million yet the wife asserts that Mr D never held a critical role in the business. For various reasons propounded by the wife and most likely to be tested at final hearing, the wife infers that Mr D may well simply be a puppet of the husband. The wife continues her enquiries in this regard.
The wife asserts that the current asset pool is in the order of about $84 million comprising variously of:
a)proceeds of sale of the parties’ shareholding in C Pty Ltd, C3 Ltd (UK) and C2 Ltd (NZ) of at least $74 million;
b)a pre-completion sale dividend paid to the husband in July 2018 of about $10 million;
c)a property purchased by the husband in City Q in July 2018 for about $3 million;
d)the former matrimonial home occupied by the wife and children having, she says, a value of about $2.8 million.
The wife makes significant complaint as to the husband’s failure to provide proper and fulsome disclosure including his failure to comply with previous orders made by registrars. The wife further complains that the husband has withdrawn funds totalling about $900,000.00 from his account …31 with those funds being unaccounted for. Although it appears there is an inference that a significant portion of those funds have been applied to the deposit for the husband’s proposed purchase.
The wife says that the property in which she and the children live requires extensive repairs that she estimates to cost about $41,000.00 together with significant other work required to bring the property up to standard.
At present, the husband pays child support of $833.33 per child per week from which the wife is to maintain herself and the children that are in her primary care.
The wife for her part seeks the release to her of funds in the sum of $10.5 million to facilitate the purchase by her of a property for occupation by herself and the children. Otherwise, the wife and the husband own an investment property in City K, New Zealand with a small surplus available after mortgage payments and property outgoings. Otherwise, the wife has monies at bank totalling about $15,800.00. Her solicitors as at 19 October 2018 held a balance of $92,000.00 in their trust account from the interlocutory payment made pursuant to orders on 28 August 2018.
At present she has an interest in purchasing a property at Suburb L for the sum of about $9 million.
The property purchased by the husband is in very close proximity to the matrimonial home in which she resides with the children. The wife has a poor relationship with the extended paternal family that all live within the Suburb G community.

The Consent Orders made

On interim hearing on 22 October 2018 various orders were made by consent resolving the application made by the husband and addressing some issues as to nondisclosure.
The orders were as follows:
IT IS ORDERED, PENDING FURTHER ORDER
Definitions
(1)In these orders:
(a)“the Husband” means [Mr Bloxham] who is the Respondent in the substantive proceedings;
(b)“the Wife” means [Ms Bloxham] who is the Applicant in the substantive proceedings;
(c)“the Orders” means the Orders made by Justice Foster on 6 September 2018;
(d)“[Suburb G] property” means the property situated at [D Street, Suburb G] bearing New South Wales folio reference …45.
(e)“[City Q] property” means the property known as [M Street, City Q], in the United Kingdom.
(f)“SPD” means the Share Purchase Deed dated 8 July 2018 entered into for the sale of [C] Pty Limited, associated entities and third parties, including but not limited to:
(i)[C] Pty Ltd (A.C.N. …);
(ii)[C2] Limited, an entity incorporated in New Zealand bearing company number …; and
(iii)[C3] Limited, an entity incorporated in the United Kingdom bearing incorporation number ….
(g)“Sale Proceeds” means the amounts payable under the SPD in respect of the Husband and Wife’s interests including but not limited to:
(i)[C] Pty Ltd (A.C.N. …);
(ii)[C2] Limited, an entity incorporated in New Zealand bearing company number …; and
(iii)[C3] Limited, an entity incorporated in the United Kingdom bearing incorporation number ….
(h)“the Act” means the Family Law Act 1975 (Cth) as amended.
(i)“CBA” means Commonwealth Bank of Australia.
Interim Property
(2)That pursuant to s 114 of the Act, the Husband is restrained by injunction from withdrawing and/or disbursing any of the Sale Proceeds held in the CBA Accounts BSB … Account Number …31 and BSB … Account Number …24, except to:
2.1Withdraw for the purpose of completing the Contract for Sale for the purchase of the [Suburb G] property a sum of $11,225,000.00 (less those amounts already paid by him for the purchase) from the Sale Proceeds held in the CBA Account bearing BSB … Account Number …31; and
(3)That the husband shall be restrained by injunction from disposing of or encumbering any real property which he purchases with the proceeds of the interim property distribution pursuant to Order 2 above.
(4)That within 48 hours of the date of these Orders, the husband shall do all further acts and things and sign all documents necessary to grant the wife viewing access only to the CBA Accounts referred to in Order 2 above.
(5)That should the wife vacate the real property at [N Street Suburb G], the wife shall be at liberty to list the [N Street] property on the market for lease to private tenants, and for this purpose the wife shall:
(i)be permitted to appoint a local real estate agent to provide property management services for the [Suburb G] property; and
(ii)be solely entitled to 100 per cent of all rental income received from the [Suburb G] property.
(6)That the husband shall do all acts and things and sign all documents necessary to implement the preceding Order, including but not limited to providing written consent/s to the managing real estate agents to accept instructions solely on behalf of the wife, and provide payment directions to the managing real estate agent so all rental income received is paid to the wife.
Disclosure
(7)That within 21 days of the date of these Orders, pursuant to the husband’s duty of disclosure, the husband shall provide copies of the following documents to the wife:
(i)Statements for all accounts held by or on behalf of the husband (or any entity in which the husband holds an interest) in the United Kingdom for the period 1 June 2016 to date.
(ii)Statements for all accounts held by or on behalf of the husband (or any entity in which the husband holds an interest) in New Zealand for the period 1 June 2016 to date.
(iii)Statements for all accounts held by or on behalf of the husband (or any entity in which the husband holds an interest) in the United States of America for the period 1 June 2016 to date.
(iv)Statements for all accounts held by or on behalf of the husband (or any entity in which the husband holds an interest) in [Country B] for the period 1 June 2016 to date.
(v)Statements for CBA … Credit Card #...23 for the period 13 May 2016 to date.
(vi)Statements for CBA Smart Access Account ending …41 for the period 26 June 2016 to 24 November 2016, including all documents recording the subsequent closure of this account;
(vii)Statements for CBA Business Credit Card Account #...50 for the period 21 March 2018 to date;
(viii)Screenshots of all available CBA Account Balances dated 05 October 2018;
(ix)Statements for Westpac Choices Home Loan Account ending #...00 for the period 12 October 2016 to date;
(x)Statements for ANZ Access Advantage Account #...83 for the period 7 March 2018 to date;
(xi)Statements for Westpac Home Loan Choices Everyday Account #...00 for the period 10 February 2018 to date;
(xii)Statements for CBA Credit Card #...75 for the period 30 June 2017 to date;
(xiii)Unless otherwise produced under (x) above, statements for the ‘CBA A/c CommBank app’ Account to which transfers labelled ‘Transfer DB’ were made from account ending #...31 on 25 September 2018, 20 September 2018 and 19 September 2018 respectively;
(xiv)Statements for Credit Card ending #...35 statements for the period 01 June 2017 to date;
(xv)Statements for CBA Account #...11 for the period 01 July 2017 to date;
(xvi)Statements for CBA Account #...24 for the period 01 July 2017 to date;
(xvii)Statements for CBA Account #...31 for the periods 1 June 2017 to 14 August 2018 and 28 September 2018 to 19 October 2018;
(xviii)Statements for CBA Account #...42 statements for the period 01 June 2017 to date;
(xix)Statements for CBA accounts ending in …31 and …24 for the period 6 September 2018 to date.
[F] Pty Ltd
(xx)Taxation Return/s, Balance Sheets and Profit and Loss Statements for [F] Pty Ltd and the [Bloxham] Family Trust for the 2013 – 2018 financial years.
(xxi)Bank statements for all accounts in the name of [F] Pty Ltd for the period 1 January 2016 to date.
(xxii)Bank statements for all accounts in the name of the [Bloxham] Family Trust for the period 1 January 2016 to date.
[D Street Suburb G]
(xxiii)All documents recording the stamp duty paid (including the due date) in respect of the exchange of contracts dated 14 September 2018 for the purchase of the property known as [D Street Suburb G], including but not limited to statements for the account from where the stamp duty was paid.
Tax documents
(xxiv)Draft personal tax returns for the 2018 financial year;
(xxv)Draft tax returns and financial reports for any entity in which the husband has an interest for the 2018 financial year.
[City Q] Property
(xxvi)All documents pertaining to the husband’s purchase of the [City Q] property, including but not limited to loan applications and bank statements evidencing the account from where the purchase price was paid for the period 1 July 2017 to date.
The outstanding issue for determination was whether funds should be paid to the wife from monies on deposit with the Commonwealth Bank as sought by her.

Interim/Partial property

The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) the Full Court identified a two stage process.
The first stage is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) of the Act to make an order for interim property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice. The Full Court said at [132];
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.
Section 80(1)(h) of the Act is in effect an enabling provision as to the power provided in s 79 to make adjustive property orders. It provides:
The court, in exercising its powers under this Part, may do any or all of the following:
….(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
The second stage is the “substantive step” where the provisions of s 79 must be considered and applied but with limitations, given that it is not the final hearing: the Full Court at [135].
Thus 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. It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said:
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.
The present application has come before the Court as a consequence of the husband’s application seeking funds to complete a significant property purchase using funds that were restrained by injunction. He seeks to acquire the property not in the names of both parties but in his name alone. The circumstance leading to the application are detailed above. The wife appropriately acceded to the orders sought by him. She had little choice. The pool of assets as discussed below is most significant on the husband’s assertions. The wife now seeks to house herself and the children in accommodation commensurate with what may be inferred to be most comfortable accommodation purchased by the husband with matrimonial funds.
As opined by Watts J in Moroni & Moroni [2014] FamCA 664:
26.The notion of a “level playing field” is one which almost axiomatically is in the interests of justice and an important matter to consider when deciding whether it would be appropriate to make an interim property order.
As Cronin J observed in Yeh & Jyu [2014] FamCA 162:
[16]In Strahan (supra), the Full Court observed that there was only one exercise of power under s 79 of the Family Law Act 1975 (Cth) (“the Act”) and it was preferable that there only be one final hearing. That said, if a party sought an interim distribution of property or an interim alteration of property interests, a two-step process should be followed. The first step required consideration as to whether the jurisdiction should be entertained and if so, then secondly, the applicant needed to satisfy the necessary requirements for the exercise of power under s 79 to make an order. The Full Court rejected the necessity to establish compelling circumstances but noted that one example where it may be appropriate to exercise the power was where it was necessary to make an order because a party required funds to assist in defraying the costs of litigation which, absent those funds, an injustice may be caused. I stress the importance of the use of the words “one example”. There are other examples where justice requires or justifies an interim adjustment. One such example is where such a distribution it is ultimately going to happen but it is not currently occurring because one party has absolute control and declines to make a fair distribution.
…
[23]I am satisfied that there is sufficient evidence for me to say that to simply leave the position of the assets in the hands of the husband, as against those in the hands of the wife, would not be a just and equitable outcome even on an interim basis. There is sufficient evidence for me to find that the wife has made a significant contribution in the descriptive terms of s 79(4).
See also Vincent & Vincent [2013] FamCA 425 (McMillan J), Wenz v Archer (2008) 40 Fam LR 212 cited with approval in Strahan (supra), Kelby & Kelby [2016] FamCA 698 (Rees J) and Vittorio & Oliphant [2017] FamCA 802 (McClelland J).
In this matter it is appropriate, in the sense of proper in the circumstances, to make an order for interim property in the interests of justice between the parties. Such “justice” must of necessity encompass concepts of fairness and even-handedness and the bona fides of the wife’s application. It is difficult to see the basis for the husband’s opposition to the orders sought by the wife, save for the contention that the Court should not exercise its jurisdiction to make the order sought. Overall, the interests of justice are served by the Court exercising its clear jurisdiction to make an order such as the one sought.
Then secondly, the Court is to have regard to relevant matters in s 79 of the Act.
It is now well settled that in property cases including interim applications 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. Yet in this matter both parties seek final adjustive orders as to property in circumstances where the bulk of their property reposes in the husband albeit presently under injunctive restraint. It is clear that, and neither party resile from, the need to alter the parties existing property rights.
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. No submission was made by the husband that the order would be in any event outside the ultimate entitlement of the wife within the confines of the asset pool contended by the husband.
A detailed inquiry is not required, but there must be some assessment of s 79 factors.
In Strahan the Full Court went on to say [137]-[141]:
137.Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
138.The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final hearing.
139.We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
140.As to the other matters being a position of relative financial strength on the part of the respondent to an application and the capacity of the respondent to meet his or her own litigation costs, there is no doubt that the financial circumstances of both parties are relevant at the substantive stage and may also be relevant at the procedural stage. Senior counsel for the Wife submitted that all of the matters discussed by the Full Court in Zschokke are self-evident and we accept that this is so in relation to at least two of the matters being the need for funds and the financial circumstances of both parties.
141.As to the various matters discussed by Brereton J in Paris King Investments which we have discussed above, we do not propose to deal with all of what his Honour said, however we make the following observations about some of the matters. Obviously the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. Further, in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s “likely costs of the litigation” given that the need for funds to defray litigation costs and expenses is the circumstance propounded as to why it is appropriate that an order be made. We also accept that “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.

Context

The parties’ cohabitation was for a period just over 16 years. There are three young children of that relationship who live substantially with the wife and it appears will continue to do so.
At the commencement of the parties’ cohabitation there were no assets of significance. Prior to the parties moving to Australia in 2007 they acquired apartment properties in New Zealand. There is no evidence of any disparity contribution to the purchase of those properties.
Just prior to relocating to Australia C entities were established by the parties. Both the husband and wife were engaged in different ways in the development of those entities.
Over a period of years the parties’ business interest grew successfully. Following the birth of the first child the wife assumed the role of primary home maker and caregiver for the children but remained engaged in the business.

Assets and liabilities

A consideration of the present assets and liabilities of the parties is fraught with some difficulty. The parties acquired property in Sydney and at the time of separation owned the former matrimonial home at Suburb G having a value of about $2.8 million.
Subsequent to separation the business entities established by the parties were sold as part of an overall share purchase agreement with a total consideration of $270 million. Of that sum $59 million was deposited into bank accounts controlled by the husband. The wife asserts that the husband also received a pre-sale dividend of $10 million that remains unaccounted for.
The husband asserts that subject to performance targets being met there are further payments to be received consequent upon the sale of the parties’ entities.
The husband asserts that subject to a provision for taxation, yet to be assessed, the present overall property pool has a value of about $48 million. This excludes the prospect of further performance target payments being received.
Otherwise, the wife contends that there are prospectively entitlements of the husband through his nominees or alter egos that could total a further $74 million.
The husband has now received a little over 20 per cent of his assertion as to the property pool available for division. The wife asserts he has received further funds totalling about $10 million. Yet he concedes there are funds perhaps yet to be received and his assessment of the pool allows for an as yet unknown tax liability. On the husband’s assertions the net pool is proximate to about $50 million and may increase. Whilst the wife asserts the prospect of a much greater pool, that determination awaits final trial.
A consideration of contributions at least on the evidence before the Court in the context of this application is indicative of a contribution finding that may on balance favour the husband. Yet a consideration of the s 75(2) considerations such as they are relevant particularly those relating to disparity of income earning capacity, care of children under the age of 18 years and the effect of the years of the marriage on the wife’s earning capacity are indicative of an adjustment by way of an increase in the contribution based entitlement of the wife.
The order sought by the wife represents a little over 20 per cent of the asset pool as contended for by the husband, yet he asserts there are likely to be further significant funds received as a consequence of the share purchase agreement.
Otherwise, the wife raises significant issues as to the husband’s nondisclosure that, if correct, could well mean a much more significant asset pool to the extent perhaps of an additional $74 million gross.
The Court is well satisfied that the funds sought to be received by the wife are well within the range of possible final outcomes, in particular, having regard to the pool contended for by the husband. Her ultimate entitlement may well be far in excess of that presently sought by her by way of funds to purchase a home commensurate with that to be purchased by the husband for himself.
The wife concedes that she should be restrained by conditions that require her to substantially apply the funds sought by her to the purchase of a home for the accommodation of herself and the children together with associated costs of that purchase including legal fees, stamp duty and the proper and appropriate provision for furniture and furnishings. In such a circumstance and overwhelming proportion of funds that may be released to the wife for such purchase, can be recovered on final hearing by ordering the property to be sold with the proceeds of sale falling back into the matrimonial pool for adjustment in the form of cash. Although in the circumstances of this matter it appears that such is an unlikely prospect.
The ultimate question is whether in all the circumstances of this matter an order for partial property in favour of the wife is appropriate and in the interests of justice.
The husband has procured by dint of his precipitate exchange of contracts for the purchase of a home at Suburb G an urgent need for the release of funds to settle that purchase. He has by his conduct effectively forced the wife into a position where she has no alternative but to agree to the release of funds to settle that purchase so as to avoid any adverse consequences that may arise from litigation should the husband default on the purchase. It may well be inferred that the husband exchanging contracts for sale on the very day that he writes to the wife’s solicitors seeking permission to access funds in excess of $10 million was simply a premeditated tactical ploy to force the wife’s agreement.
Yet for his part he refuses to consider the release of any funds to the wife by way of partial property in circumstances where the release sought by her is well within the realms of her prospective final entitlement.
Otherwise, there is a significant disparity in the financial circumstances of both parties with the wife relying upon ongoing periodic payments from the husband who attests in his financial statement to an income and dividends from his business totalling $1.456 million per year before tax in addition to which he receives directors fees of about $52,000.00 per annum relating to his company’s United Kingdom activities.
In such a circumstance it is appropriate and in the interests of justice that of the funds sought to be released to the wife she not be required to apply the whole of the funds to the acquisition of a capital asset but be at liberty to retain some portion of those funds as a cash component to which she will have recourse as she sees fit. Doing the best that can be done in the circumstances it is appropriate that the wife be at liberty to retain 10 per cent of funds sought to be released to her in cash to be used for such purposes as she may determine with the remainder of the funds to be applied to the purchase of accommodation chosen by her with those funds to be applied to the purchase price, stamp duty, purchase legal costs and the appropriate furnishing of such property.
In all of the circumstances of this matter it is appropriate and in the interests of justice that the wife be entitled to receive a distribution commensurate with that received by the husband with such distribution to be subject to the conditions set out in the previous paragraph. The way in which such distribution is dealt with in terms of final property adjustment between the parties will be reserved to final hearing or agreement between the parties.
Orders will be made accordingly.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 December 2018.

Associate:

Date: 13 December 2018