Borman and Hunter (No. 2)

[2018] FamCA 934

FAMILY COURT OF AUSTRALIA

BORMAN & HUNTER (NO. 2) [2018] FamCA 934

FAMILY LAW – PROPERTY – Oral application by the Respondent to be released from the undertaking proffered by her to the Applicant – Application allowed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Borman

RESPONDENT: Ms Hunter by Ms Wallace as her Case Guardian

FILE NUMBER: BRC 2660 of 2015

DATE DELIVERED: 9 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 9 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson of Queen's Counsel with Mr Cameron of Counsel

SOLICITOR FOR THE APPLICANT: Alex Mackay & Co

COUNSEL FOR THE RESPONDENT: Mr Galloway of Counsel

SOLICITOR FOR THE RESPONDENT: Jones Mitchell Lawyers

Orders

IT IS ORDERED THAT

1. Ms Hunter be released from the undertaking proffered by her to Mr Borman in correspondence passing between their respective legal representatives such that she be permitted to withdraw up to $275,000.00 from the B Bank account number #31.

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 Borman & Hunter (No. 2) 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 BRISBANE

FILE NUMBER: BRC 2660 of 2015

Mr Borman

Applicant

And

Ms Hunter by Ms Wallace as her Case Guardian

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an oral application made by Counsel on behalf of Ms Hunter that she be released, as it were, from an undertaking proffered to Mr Borman (via the exchange of correspondence) which provided in its terms, broadly described, that she not access funds currently held in a B Bank account in her name (account number #31) unless otherwise agreed by Mr Borman. 

2. Mr Galloway, on behalf of Ms Hunter, advances, during the course of this hearing, that Ms Hunter be released from that undertaking proffered to Mr Borman (but not, in formal terms, proffered to the Court as such) such that she be released from it so as to permit her to draw, from the account I have specified, funds up to $275,000.00. 

3. The application was adverted to in correspondence from Ms Hunter’s solicitors to Mr Borman’s solicitors, dated 7 November 2018.  The use to which the funds are intended to be put may be shortly described as meeting anticipated living expenses for the next six months (said to be in an estimated amount of $186,000.00) and to meet outstanding legal costs and anticipated further legal costs between now and the conclusion of these proceedings – at least the conclusion of the hearing aspect of it will occur when submissions are taken on 27 November of this year – in a further sum of an estimate of $90,000.00. 

4. The application is opposed by Mr Borman.  Mr Wilson of Queen’s Counsel made submissions in support of that opposition to the effect that the application is not supported by sworn evidence, but comes contained, as it were, simply within the correspondence to which I have referred as being dated 7 November 2018. 

5. I accept Mr Wilson’s submissions that one might otherwise expect, if it were an order for the provision of funds, that it be supported by sworn material.  To some extent, in a sense, there is that sworn material because I have, of course, the affidavit evidence relied upon by Ms Hunter as forming part of her evidence for the purpose of the trial.  In that sense, I also have the evidence of Ms Wallace in relation to anticipated costs of support for Ms Hunter and her living expenses. 

6. It seems to me that, when I am asked to release a party from an undertaking proffered, the primary consideration should be to address the purpose that one might expect the undertaking was proffered to achieve.  Here, it seems likely that the undertaking was proffered so as to ensure that Mr Borman’s prospects of receiving that which he seeks in the proceedings would not be adversely affected. 

7. Mr Wilson QC accepts that there is no suggestion that at the end of the proceedings, whatever the position ultimately found, Ms Hunter would not have available to her the sum of more than $275,000.00.  I note and take into account, also, that the property the subject of the application is the property of the parties.  As authority has made clear, parties are entitled to, as it were, access their property for the purposes of self-support: they do not go into a state of economic suspension following separation. 

8. I have taken into account and placed particular weight upon the fact of Ms Hunter’s needs for financial support, although I do note the submissions made by Mr Wilson QC as to the funds already made available as a consequence of earlier orders.  However, as I have said, it is the property of Ms Hunter that she is seeking to access and it is entirely a matter for her as to the manner by which she chooses to expend her property. 

9. In the circumstances of this case, noting that I am asked to release Ms Hunter from an undertaking that she had previously proffered, I am persuaded that such a course is one that is appropriate. 

10. I am confident that there is no prospect that I will not otherwise be able to adjust appropriately to accord to Mr Borman whatever entitlement is ultimately determined to be just and equitable in the circumstances of the case, once I have reached the findings of fact necessary to permit of the making of final orders. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 November 2018

Associate: 

Date:              9 November 2018