Brydan & Sillars (No 2)
[2022] FedCFamC1F 147
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Brydan & Sillars (No 2) [2022] FedCFamC1F 147
File number(s): BRC 6112 of 2020 Judgment of: BAUMANN J Date of judgment: 15 March 2022 Catchwords: FAMILY LAW – PROPERTY – Where the only remaining interim issue for the Court to determine relates to sole use of a real property – Where the wife says the husband’s conduct is persuasive to vary a previous consent order – Where there has not been a material change in circumstances – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 83, 117 Cases cited: Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 11 March 2021 Place: Brisbane Counsel for the Applicant: Mr Sullivan QC Solicitor for the Applicant: HopgoodGanim Lawyers Counsel for the Respondent: Mr Williams QC Solicitor for the Respondent: Barry.Nilsson Lawyers ORDERS
BRC 6112 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRYDAN
Applicant
AND: MR SILLARS
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
15 MARCH 2022
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
Definition
1.That in this Order, the husband’s related entities means and includes every entity in respect of which the husband is:
(a)a director or a shareholder of a proprietary company;
(b)a discretionary trust where he is a director or shareholder of the corporate trustee or the appointor of the trust, or is personally the trustee;
(c)a unit trust where he is the unit holder; or he is the director or shareholder of the unit holder.
Litigation funding
2.That within seven (7) days the husband pay to the wife the sum of $300,000 by way of partial property settlement to be paid to the trust account of HopgoodGanim Lawyers, and this Order authorises such sum to be paid from the sum of $300,000 ordered to be paid to the trust account of Barry.Nilsson Lawyers on or before 10 March 2022 in accordance with Order 3 of the Orders dated 23 February 2022.
Related entity notice of sales and deposit of sale proceeds
3.That if the husband or one of the husband’s related entities authorise an agent to sell a real property owned by one of the husband’s related entities (the intended sale and the intended sale property) the husband must provide to the wife:
(a)the listing authority with each and every agent acting upon the intended sale, within seven (7) days after his execution of such listing authority;
(b)a copy of the most recent bank statement for each loan account evidencing each loan secured by the mortgage over the intended sale property, within fourteen (14) days of the execution of the listing authority.
4.That upon entering a conditional or unconditional contract or causing one of the husband’s related entities to enter a conditional or unconditional contract for sale of any real property owned by one of the husband’s related entities, the husband must provide to the wife:
(a)a copy of the contract for the intended sale, within forty eight (48) hours of the date of entering the contract;
(b)a copy of the settlement statement for each intended sale property, within twenty four (24) hours of the date of settlement;
(c)a copy of the listing agent’s statement in respect of the balance of the deposit for the intended sale property if applicable, within twenty four (24) hours of the date it is received by him, and
(d)a copy of the bank statement for the account or accounts of the husband’s related entities into which the funds or any portion of them were deposited upon the settlement, showing the deposit of the funds, within seven (7) days of that deposit of funds.
THE COURT ORDERS:
5.That the wife’s Application in a Proceeding filed 15 February 2022 be otherwise dismissed.
6.That the parties’ costs of and incidental to the Application in a Proceeding filed 15 February 2022 be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brydan & Sillars has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In the midst of ongoing property proceedings, Ms Brydan (“the wife”) brought an interlocutory Application on 15 February 2022 seeking a suite of orders against Mr Sillars (“the husband”).
It was necessary to initially adjourn the application on its first Court date to allow the husband to file a Response to the Application in a Proceeding and supporting affidavit, which he did on 9 March 2022.
Through the sensible negotiations of Mr Sullivan QC for the wife and Mr Williams QC for the husband, a number of orders were agreed and appear at the commencement of these Reasons, they are recorded as consent orders relating to:
(a)litigation funding, where the husband will pay a further sum of $300,000 to the wife’s solicitors; and
(b)disclosure as to sales of property and the conditions relating to such sales.
The wife no longer presses for interlocutory injunctive relief. Before moving to the only remaining issues for the Court’s interim determination, it is appropriate for context to record that both parties (who have expended each over $400,000 in legal costs since proceedings commenced on 25 May 2020) are anxious and desirous of engaging in a private mediation. They have informed the Court of a likelihood they can now facilitate such mediation by the start of July 2022. The impediment to conducting a meaningful mediation has now been dealt with, where the significant portfolio of real property interests have been valued (at a cost of $116,318) and that expert evidence has been produced to the forensic accountants engaged in preparing a report of the parties’ interests in a range of corporate and Trust entities.
THE REMAINING ISSUE
The wife seeks an order in these terms:
[Suburb N]
5.That paragraph 17 of the Order dated 20 November 2020 permitting the husband occupancy of the real property situated at [M Street Suburb N], being the property contained in Lot 2, Survey Plan […], Title reference: […], Local Government [City P] and registered in the sole name of the wife (the [Suburb N] Unit) is vacated, and the husband shall permit the wife to have sole occupancy of the [Suburb N] Unit and shall not interfere with her quiet enjoyment of the [Suburb N] Unit, nor interfere with the wife’s ability to rent the [Suburb N] Unit and derive an income therefrom.
6.Within seven (7) days of the date of this Order, the husband deliver to the wife every key and security pass in his possession, including for the garage, relating to the [Suburb N] Unit.
7.Upon the husband’s delivery to the wife of each key and security pass in possession relating to the [Suburb N] Unit;
a.the wife shall become liable for the subsequent outgoings relating to the [Suburb N] Unit particularized in paragraph 14(b) of the Order dated 20 November 2020 but only in respect of outgoings first invoiced after the date of the husband’s delivery of the keys and security passes for the [Suburb N] Unit to the wife;
b.the husband shall remain liable for such outgoings prior to the date of delivery of the keys and security passes for the [Suburb N] Unit to the wife, and shall pay all [Suburb N] outgoings that were incurred by or that fell due for payment before the date of this Order.
The husband says the wife’s Application for sole occupancy of the Suburb N unit should be dismissed, or in the alternative, pursuant to s 83(1)(c) of the Family Law Act 1975 (Cth) (“the Act), “the obligations of the husband pursuant to order 13 and 14 of the Orders made 20 November 2020 be discharged as at the date they stand paid.”
The background for the discrete relief now sought are Orders made by consent by the Court on 20 November 2020, particularly Orders 13, 14, 15, 16 and 17 as follows, noting at the time, the parenting and property proceedings were adjourned for Directions Hearings before a Registrar on 6 July 2021 (over seven months later):
13.That pending further Order, the husband pay or caused to be paid to the wife, by way of spouse maintenance, the monthly amount of $5,500 net of tax and payable on the 20th of each calendar month into a bank account as nominated by the wife from time to time.
14.That in addition to the spouse maintenance payment pursuant to Order 13 herein, and pending further Order, the husband pay or cause to be paid the following expenses:-
(a)In relation to the property at [Q Street, Suburb O] [sic] (“the [Q Street] property):-
(i)The mortgage payments both principal and interest payments each month, together with any arrears owing;
(ii)[City R] Council General Rates (but not water, waste, levies or service charges); and
(iii) Building insurance (but not contents).
(b)In relation to Lot 2, Survey Plan […], Title reference: […], Local Government: [City P] (“the [Suburb N] property”):-
(i) [City P] council rates and water rates;
(ii) Body Corporate Levies;
(iii) Land Tax if applicable;
(iv) Home and Contents insurance; and
(v)Any maintenance and / or repairs as required to the property and as agreed in writing between the parties.
(c)In relation to the [Motor Vehicle 1] (Registration number […]), the following:-
(i) Finance payments;
(ii) Registration;
(iii) Insurance (with the wife as a sole driver); and
(iv)Scheduled maintenance as required and any repairs as agreed between the parties in writing.
15.In relation to the [Suburb N] property:-
(a)The parties are restrained and an injunction is granted restraining the parties from selling, mortgaging, assigning or encumbering their interest in the [Suburb N] property;
(b)That within seven (7) days of the date of these Orders, the husband do all acts and sign all documents necessary to lodge a Withdrawal of Caveat in relation to the [Suburb N] property;
(c)That within seven (7) days of the date of these Orders, the wife do all acts and things and sign all documents necessary to deliver to the husband a signed transfer in registerable form to enable the [Suburb N] property to be registered in the wife’s sole name; and
(d)That within twenty eight (28) days of receiving the Transfer document referred to in the immediately preceding paragraph, the husband will do all acts and things including signing all documents necessary to register the transfer of the [Suburb N] property, including the meeting the costs of any stamp duty and registration cost associated with the transfer.
16.That until further Order, the wife have sole use and occupancy of the [Q Street] property.
17.That until further Order, the husband have sole use and occupancy of the [Suburb N] property.
PRINCIPLES TO BE APPLIED
The Court has the power to vary an earlier interlocutory order, however a long line of authority, both in family law proceedings and in general civil litigation requires the Applicant to demonstrate a material change of circumstances since the original orders were made or the discovery of new material, which could not reasonably have been put before the Court on the hearing of the original application (see Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at [46] cited with approval in Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82).
There were no reasons given for the Orders made on 20 November 2020 because they represent a compromise reached between the parties, covering a suite of parenting and property orders. At its most fundamental level, the preservation of the wife’s right to occupy (and for the husband to be responsible for outgoings) on the Suburb O property, was to ensure the primary residence of the parties infant daughter, X (“X”) was secure, was not in contest.
However, the parties did, in their original cross-applications, both seek an order for sole use of the Suburb N unit.
The agreement reflected in consent Orders 15 and 17, was in circumstances, somewhat unusual for a sole use order, where neither party had contended they wished to reside in the property primarily or as their principal place of residence. The husband lives in City P and although he says he makes use of the Suburb N unit, his evidence is that he lives in another property at Suburb S, where the child X does spend some time when in her father’s care.
MATERIAL CHANGE OF CIRCUMSTANCE
Although Mr Sullivan QC produced written submissions which have been considered, in essence, the wife’s case on this issue is that the material change of circumstances relates to the husband’s conduct since the orders were made, in three respects:
(a)The husband has failed on many occasions to comply with Orders of the Court, which has necessitated further costs being incurred seeking to have him comply, including applications for enforcement. Mr Sullivan QC says that although remedies under s 117 of the Act might apply (orders for costs), this does not diminish the wife’s argument that the husband’s “serial failure” to comply is a relevant and persuasive factor;
(b)The husband’s right of use of the Suburb N unit was on the condition that he pay the outgoings associated with the unit. The wife (who holds the legal title to the unit) says she is receiving demands for payment of body corporate levies and that currently approximately $1,300 is overdue; and
(c)If the wife had control of the unit, her intention is to rent the property and her view is that she would be able to obtain rent of approximately $3,500 per week. She would be prepared to pay the outgoings on the unit, however the nett return (before taxes) she would receive would assist her in circumstances where the child support she receives from the husband (as the father of X) has reduced – the wife says because he has failed to lodge personal income tax returns.
Although these issues were emphasised in Queen’s Counsel’s oral submissions, the written submissions of the wife’s Queen’s Counsel at paragraphs 53 to 69 have been considered by the Court, summarised to some extent by paragraph 68 which contends:
68.If it is accepted that this Court would have to vary the prior Consent Order, but it is submitted that it is appropriate to do so in the circumstances of this case. The relevant circumstances are as follows:
·The Husband has not been using the [Suburb N] Unit as his residence, rather he has been residing for at least two years in the [T Street] property which is also situated in [City P].
·The Husband has not been earning income from this unit in the meantime. It is a piece of matrimonial property which is available to generate an income.
·The Husband has, (apart from the residence in which the Wife resides in [Suburb O]), control over all of the other matrimonial real property assets. This varied order, would on an interim basis, provide the [Suburb N] Unit for the Wife’s use so as to generate potential income.
·The Husband cannot identify any proper basis from a tax perspective why this matrimonial asset should not be generating income.
·Where the Husband neither resides in the house nor uses it to generate income, it is submitted that the justice of the case would be served by the Wife on an interim basis being able to generate some income for herself and for the benefit of the child of the marriage.
·The child support assessment has been refused by the Husband’s failure to lodge his tax return. The Husband is four months in arrears on his payments, even for this meagre child support assessment.
·Further, the Husband has habitually failed to promptly pay for the Body Corporate charge for the [Suburb N] Unit which is registered in her name. At paragraph [39] of the Husband’s Affidavit he deposes that there are no outstanding invoices and accounts. This is incorrect. [Ms U]’s Affidavit of 10 March 2022 exhibits the running account and the current arrears. The Husband’s evidence is unsustainable.
·The proceeding has already been extended in a significant way by previous deliberate non-compliances with orders of this Court. In particular, interference with the delivery of the independent valuation reports which then are necessary for [V Accountants] to finalise its overall forensic accounting report.
·Finally, the Husband has the control, together with his business partner, of the large portfolio of real property, together with the income that portfolio generates on an annual basis. The Wife has no access to or control of the income generated through that portfolio.
In short, Counsel for the husband, Mr Williams QC, says the Application to vary must be dismissed as no material change of circumstances can be demonstrated by the wife.
DISCUSSION
I am not persuaded that any material change in circumstances has been demonstrated, sufficient to cause the Court to vary the Order in respect of the Suburb N unit at this time because:
(a)at the time the Order was made, there was no evidence to suggest the husband intended to use the Suburb N property as his principal place of residence. The fact that he has not done so is not a new factor – any more than the husband’s assertions that his right to occupy (as he does) the T Street property is to some extent insecure;
(b)in circumstances where neither party proposed at the time of the Orders to occupy the property, it was always available from the time of the Orders, to the husband to use it to generate income if he wished;
(c)if the “justice of the case would be served by the wife on an interim basis being able to generate income for herself…” then that was the situation when the Court made the consent Orders in which other benefits for the wife were agreed and prescribed;
(d)if the husband is not paying adequate child support, a range of administrative remedies seeking a departure from the currently assessed liability are available to the wife, which on the evidence before the Court, she has not perused;
(e)whilst the submission that to allow a property to be idle when rental income of $3,500 could be accumulated amounts to some form of “waste”, the Orders made allowed the husband to decide how he wanted to exercise his sole and exclusive occupancy. The fact that he chooses not to rent it is an option available to him, and while the pool of property assets might exceed $14,000,000 (nett), some persons might make lifestyle choices as to how they use their wealth that others with less money may not. If the wife thinks in a pool of this size that is an argument she may think is worth advancing, she can do so when the Court comes to consider how the parties’ interests should be altered to achieve justice and equity to both; and
(f)on the husband’s evidence, he and his business partner, Mr W, have always had control of “the large portfolio of real property, together with the income that portfolio generates”, and that was the position at the time of the Orders and nothing has changed.
Finally, if the wife’s Application is in any way designed to “sanction” the husband for his alleged behaviour then, in my view that reflects an ulterior motive. She has her remedies, but seeking to vary this Order is not one of them.
CONCLUSION
The wife’s Application will be dismissed so far as she sought to vary the Orders relating to the Suburb N unit.
Having made that decision, I am not required to consider the husband’s alternative relief, in effect seeking to vary the spouse maintenance Orders made in November 2020. The wife did not formally apply to do so, although on instructions, Mr Sullivan QC did orally propose that if the Court was to grant the wife sole use of the Suburb N unit, she would be prepared to agree to a discharge of part of the earlier spouse maintenance Orders.
If the Court is to be moved to consider any application by the wife for a variation to spouse maintenance Orders pursuant to s 83 of the Act, that should only occur (absent urgency) when an application is properly filed and on notice to the husband.
I make the orders which appear at the commencement of these Reasons.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 15 March 2022
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